Filing # 145757712 E-Filed 03/15/2022 03:37:23 PM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT. ND FOR PASCO COUNTY, FLORIDA CIVIL DIVISION WILLIAM HAMMOND and PASCO COUNTY PROFESSIONAL FIRE FIGHTERS, LOCAL 4420, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Plaintiffs, v Case No.: 2022-CA-000150-CAAXWS PASCO COUNTY, Defendant, / MOTION TO DECLARE SECTION 112.1816(1)(a)7., FLORIDA STATUTES, UNCONSTITUTIONALLY VAGUE AND TO DISMISS THE COMPLAINT Defendant, PASCO COUNTY (“Defendant”), hereby moves to declare section 112.1816(1)(a)7., Florida Statutes, unconstitutionally vague and to dismiss Plaintiffs’, WILLIAM HAMMOND and PASCO COUNTY PROFESSIONAL FIRE FIGHTERS, LOCAL 4420, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS (“Plaintiffs”), Complaint, and states INTRODUCTION 1. Plaintiffs’ one-count Complaint alleges that Defendant violated section 112,1816(1)(a)7., Florida Statutes, by refusing to make a one-time cash payout of $25,000 for Hammond’s skin cancer diagnosis. 2. This Court should declare section 112,1816(1)(a)7. unconstitutionally vague in that it does not define “invasive skin cancer,” nor does it sufficiently put Defendant on notice of what constitutes “invasive skin cancer” and, therefore, denies Defendant due process under Article I, Section IX of the Florida Constitution and the Fourteenth Amendment to the United States y Filed Pasco Case # 2022CA000150CAAXWS 03/15/2022 03:37:23 PMConstitution. See § 112.1816(1)(a)7., Fla. Stat; Art. I, § 9, Fla. Const.; U.S. Const. amend. XIV, $1 3. Because section 112.1816(1)(a)7. is unconstitutionally vague, this Court should consequently dismiss Plaintiffs’ Complaint for “Violation of § 112.1816.” See Compl. at $f] 8 10. LEGAL STANDARD 4, Art. I, § 9, Fla. Const., states that “[n]o person shall be deprived of life, liberty or property without due process of law.” U.S. Const. amend. XIV, § | states that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any petson of life, liberty, or property, without due process of law.” 5, Fla. R. Civ. P. 1.110(b) states that “[a] pleading which sets forth a claim for relief must state’a cause of action and shall contain . . .a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Therefore, to state a cause of action in Florida, “{a] complaint must sufficiently allege ultimate the facts which, if established by competent evidence, would support a decree granting the relief sought under the law.” Kislak v, Kreedian, 95 So. 2d 510, 514 (Fla. 1957); see also Doyle v, Flex, 210 So. 2d 493, 494 (Fla. 4th DCA 1968). Moreover, “mere legal conclusions inserted in a complaint are insufficient to state a cause of action unless substantiated by allegations of ultimate fact.” Doyle, 210 So. 2d at 494. Finally, the question of whether a complaint is sufficient to state a cause of action is a question of law for the trial court. Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 734 (Fla. 2002).6. Fla. R. Civ. P. 1.140(b)(6) provides that an action must be dismissed when a plaintiff fails to state a cause of action upon which relief can be granted. When considering a 1.140(b)(6) motion to dismiss, “the court must accept the facts alleged therein as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader.” Florida Dept. of Revenue, ex rel, L.M.M. v A.M,, 192 So. 3d 582, 583 (Fla. 2d DCA 2016). However, the court is not required to accept the pleader’s legal conclusions as true. u RGU! A, This Court Should Declare Section 112.1816(1)(a)7. Unconstitutionally Vague, 7. “[A] statute which . . . requires the doing of an act in terms so yague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” State v. Llopis, 257 So. 2d 17, 19 (Fla, 1971) (citation omitted). Thus, “{t}he standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice.” Brown v. State, 629 So. 2d 841, 842 (Fla. 1994). 8. While the lack of a statutory definition alone is not enough to render a statute unconstitutionally vague, “arbitrary or discriminatory enforcement is likely” where neither definitions from ease law nor related statutes aid the court in determining the meaning ofa phrase. Brown, 629 So. 2d at 843 (statute was unconstitutionally vague because the court would not “step in and guess about legislative intent” where the Legislature failed to provide guidelines about the phrase, “public housing facility”) 9, “[I}f person of common intelligence must speculate about the statute’s meaning, and be subject to penalty if the guess is wrong,” then the statute is unconstitutionally vague. Whitaker v. Dep’t of Ins, & Treasurer, 680 So. 2d 528, 531-32 (Fla. 1st DCA 1996) (holding thephrase, “detrimental to the public interest,” unconstitutionally vague under the due process clause because it was “subject to many interpretations”). See also, e.g., State v thy, 615 So. 2d 784, 785 (Fla. 2d DCA 1993) (statute was unconstitutionally vague and overbroad because of its undefined, “speculative” phrase: “Misrepresent{ation] [of] the prospects or chances for success of a proposed or existing business opportunity”); State v, Thomas, 616 So. 2d 1198, 1200 (Fla. 2d DCA 1993), aff'd sub nom, Brown, 629 So. 2d 841 (“[T]he possibilities for a misapplication of the term ‘public housing facility” are too numerous to allow that provision to section 893.13(1)(i) to withstand constitutional scrutiny.”); Lanzetta v. State of NJ., 306 U.S. 451, 456, 59 618, 621, 83 L. Ed. 888 (1939) (finding the word, “gang,” to be unconstitutionally vague where, inter alia, it was not properly defined in the statute, and dictionaries had varied definitions); United States v. L. Cohen Grocery Co., 255 US. 81, 87, 41 S. Ct.298, 299, 65 L. Ed. 516 (1921) (holding statutory language, “make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,” unconstitutionally vague). 10. — The above principles apply to civil statutes, for “[iJt was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all.” A.B, Small Co. v, Am, Sugar Ref, Co., 267 USS. 233, 239, 45 S. Ct. 295, 297, 69 L. Ed. 589 (1925). Indeed, these vagueness principles “have been so construed and applied . . . in civil proceedings.” Id, See also Boutilier v. Immigr & Naturalization Serv., 387 U.S. 118, 123, 87 S. Ct. 1563, 1566, 18 L. Ed. 2d 661 (1967) (Courts have “held the ‘void for vagueness’ doctrine applicable to civil as well as criminal actions.”) 11. Under the federal test, a civil statute is unconstitutionally vague if it is “so vague and indefinite as really to be no rule or standard at all” or “substantially incomprehensible.” Rsrv.,Lid, v. Town of Longboat Key, 17 F.3d 1374, 1378 (11th Cir. 1994) (citation omitted). See also Cotton States Mut. Ins. Co. v. Anderson, 749 F.2d 663, 669 (11th Cir. 1984) (“[A] non-criminal statute is not unconstitutionally vague if persons of reasonable intelligence can derive a core meaning from [the] statute.”) (citation omitted) 12. Section 112.1816, Florida Statutes, requires an employer,’ such as Defendant, to make “[a] one-time cash payout of $25,000,” as an alternative to workers’ compensation benefits, upon the firefighter’s initial diagnosis of cancer. See 112.1816(2)(b), Fla. Stat: 13, The term “{cJancer” includes “[iJnvasive skin cancer.” Id, at § 112.1816(1)(a)7. However, section 112.1816 does not define the phrase, “invasive skin cancer.” Neither does section 112.191, Florida Statutes, define what “[iJnvasive skin cancet® means, 14. No state or federal ease in Florida discusses what “[iJnvasive skin cancer”—under any statute—means. Instead, the only case about section 112.1816 addresses the “retroactivity” of cancer benefits, not the different types of cancer that may qualify for those benefits. See Parker vy. Dezzi, No, 8:21-CV-1459-TPB-SPF, 2021 WL 5395958, at *3 (M.D. Fla. Nov. 18, 2021), donot define “fiJnvasive ski in cancer” for that matter. In fact, the word “invasive” has different dictionary definitions. See, e.g., Merriam-Webster, Invasive, https://www.merriam-webster.com/dictionary/invasive (defining “invasive” as “tending to infiltrate surrounding healthy tissue” or “involving entry into the living body (as by incision or by insertion of an instrument”); Cambridge Dictionary, Invasive, https://dictionary.cambridge.org/ ' Employer’ means a state board, commission, department, division, bureau, or agency, or a county, municipality, or other political subdivision of the state.” § 112.191(1)a), Fla. Stat 5usidictionary/english/invasive (defining “invasive” as “tending to spread in an uncontrollable way” or “done by cutting into or putting something into the body”). 16. Even the present Complaint, for example, shows the lack of guidance on the phrase, “invasive skin cancer.” The Complaint alleges that “Plaintiff Hammond was diagnosed with invasive basal cell carcinoma.” Compl. at § 19. However, “{tJhe County has contracted with an insurance carrier,” which “denied the . . . request for coverage of Hammond’s cancer on the grounds that the invasive basal cell carcinoma . .. does not meet the certificate's eriteria.” Compl. at $f] 25-26 (emphasis added). As exemplified by the Complaint, section 1 12.1816(1)(a)7. lacks a definition of “invasive skin cancer” or the types of skin cancer that are “invasive” or “non- invasive.” 17. Because neither” section 112.1816(1)(a)7:, case law, or dictionaries define “[iJnvasive skin cancer,” the term is “so vague that men of common intelligence must necessarily guess at its. meaning and. differ as to. its application,” Llopis, 257 So. 2d at 19, and section 112.1816(1)(a)7. does not “give[] a person of ordinary intelligence fair notice,” Brown, 629 So, 2d at 842, of what qualifies for the one-time cash payout of $25,000. Thus, section 112.1816(1)(a)7., without any definition, is “so vague and indefinite as really to be no rule or standard at all” or “substantially incomprehensible,” Rsrv., Ltd., 17 F.3d at 1378, that it is unconstitutionally vague. 18. The “court cannot amend [the] statute by construction in order to bring the statute within the fundamental law.” Whitaker, 680 So. 2d at $31 19. Without a definition of the words, “[iJnvasive skin cancer,” a firefighter with skin cancer of any type—whether truly “invasive” or not—would receive a one-time cash payout of$25,000 from an employer upon asserting that the cancer is invasive, or would, in the event of the employer's denial, needlessly increase litigation costs pursuing the payout. 20, Because section 112.1816(1)(a)7. is unconstitutionally vague in that it does not define “invasive skin cancer,” nor does it sufficiently put Defendant on notice of what constitutes “invasive skin cancer,” section 112.1816(1)(a)7,, therefore, denies Defendant due process under Article I, Section IX of the Florida Constitution and the Fourteenth Amendment to the United States Constitution, § 112,1816(1)(a)7., Fla. Stat.; Art. , § 9, Fla, Const.; U.S. Const. amend. XIV, $1 This Court Should Dismiss Plaintiffs" Complaint for Failure to State a Claim for ‘Violation of Section 112.1816(1)(a)7. 21. In Count I of the Complaint, titled, “Violation of § 112.1816,” Plaintiffs assert that Defendant violated section 112.1816, Florida Statutes, by “the County's refusal to provide statutorily guaranteed cancer benefits.” See Compl. at $9] 32-36; Prayer for Relief at § 1a (Plaintiff Hammond requests “statutory cancer benefits related to his diagnosis and treatment for invasive skin cancer”) (emphasis added). Plaintiffs, in essence, ask this Court to amend the statute by construction to “prevent[] the County from enforcing any policy or practice that denies statutory cancer benefits... on the ground that ‘invasive basal cell carcinoma’ does not constitute ‘invasive skin cancer.”” See Prayer for Relief at § 1.b. 22. Because section 112.1816(1)(a)7. is unconstitutionally vague in that it does not define “invasive skin cancer,” nor does it sufficiently put Defendant on notice of what constitutes “invasive skin cancer,” section 112.1816(1)(a)7., therefore, denies Defendant due process, and this Court should consequently dismiss the Complaint for failure to state a cause of action. See Doyle, 210 So. 2d at 494; Siegle, 819 So. 2d at 734,IV, CONCLUSION WHEREFORE, Defendant, PASCO COUNTY, requests the Court to declare section 112.1816(1)(a)7., Florida Statutes, unconstitutionally vague, and dismiss the Complaint and provide such other and further relief as the Court deems just and appropriate. DATED this 15th day of March 2022. Respecttully submitted, Y Gregory A. Hearing. GREGORY A. HEARING Florida Bar No.: 817790 Gregory hearing@gray-robinons.com CHARLES J. THOMAS Florida Bar No.: 986860 Charles. homas@eray-robinson, GRAYROBINSON, P.A. 401 E. Jackson Street, Suite 2700 Post Office Box 3324 (33601-3324) Tampa, Florida, 33602 Tel: (813) 273-5000 Fax: (813) 273-5145 Attorneys for DefendantCERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on this 15th day of March 2022, | electronically filed the foregoing with the Clerk of the Court by using the Florida Courts E-Filing Portal, which will send notice of electronic filing to the following: Paul A. Donnelly Conor P. Flynn DONNELLY & GROSS, PLLC 2421 N.W. 41* Street,Suite A-I Gainesville, FL 32606 Attorney for Plaintiffs ¥ Gregory A. Hearin: Aitorney