CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 13481, 2016 WL 4697958
...nt) asserts that
the trial court erred in denying its motion for judgment on the pleadings upon finding
that the Department was not entitled to sovereign immunity, as a matter of law, on
Clare Caldwell’s claim against the Department pursuant to section 400.0083(3)(a),
Florida Statutes (2011)....
...Caldwell, shortly
thereafter, was informed that she served at the will of the Secretary and he no longer
needed her services. Following her termination, Caldwell filed an amended
complaint against the Department, alleging “Interference with an Ombudsman” in
violation of section 400.0083....
...Caldwell alleged that the Department’s actions
2
interfered with her position with the Statewide Ombudsman’s Office and the
function of the office in violation of state law. She also alleged that the Department
was civilly liable under section 400.0083(3)(a), which established a private right of
action “for damages and equitable relief,” including, she alleged, past and future
wage losses, loss of benefits, and emotional pain and suffering....
...ncy, undertake to
discover, investigate, and determine the presence of conditions or
individuals which constitute a threat to the rights, health, safety, or
welfare of the residents of long-term care facilities. . . .
In addition, section 400.0083, Florida Statutes (2011), provides:
(1) It shall be unlawful for any person, long-term care facility, or
other entity to willfully interfere with a representative of the office, the
state council, or a local...
... include the state or its agencies, and the general definition of “person” in section
1.01(3) does not include the state or its agencies. Under these circumstances, there
is no clear and unequivocal waiver of sovereign immunity for claims under section
400.0083.
Although Caldwell points out that the Legislature has expressed the general
intent in section
400.0061(2) to utilize voluntary citizen ombudsman councils under
the leadership of the ombudsman to operate an ombudsman progra...
...shall serve at the pleasure of the Secretary of Elder Affairs.” §
400.0063(2)(b), Fla.
Stat. (2011). Even if it could be inferred that the Legislature intended to permit the
Department to be sued for “interference by an executive agency” under section
400.0083(3)(a), such an inference is not sufficient to constitute a clear and
unequivocal waiver of sovereign immunity....
CopyPublished | Florida 4th District Court of Appeal
...7
unlawful for any “person” or “other entity” to “willfully interfere with a
representative of the office” and created a civil cause of action for such
interference. Id. (emphasis added) (quoting § 400.0083(1), (3)(a), Fla. Stat.
(2011)). The trial court held that chapter 400 waived the Department’s
sovereign immunity, and the First District reversed. Id. at 1108-09.
On review, the First District emphasized that section 400.0083 created
a cause of action against a “person” or “other entity.” Id. at 1109.
However, chapter 400 did not define those terms to include “the state or
its agencies.” Id. “Under these circumstances,” the First District held
there was “no clear and unequivocal waiver of sovereign immunity for
claims under section 400.0083.” Id....
CopyPublished | Florida 4th District Court of Appeal
...7
unlawful for any “person” or “other entity” to “willfully interfere with a
representative of the office” and created a civil cause of action for such
interference. Id. (emphasis added) (quoting § 400.0083(1), (3)(a), Fla. Stat.
(2011)). The trial court held that chapter 400 waived the Department’s
sovereign immunity, and the First District reversed. Id. at 1108-09.
On review, the First District emphasized that section 400.0083 created
a cause of action against a “person” or “other entity.” Id. at 1109.
However, chapter 400 did not define those terms to include “the state or
its agencies.” Id. “Under these circumstances,” the First District held
there was “no clear and unequivocal waiver of sovereign immunity for
claims under section 400.0083.” Id....
