                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

MARTHA MILES,                         NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-0165
                                      CORRECTED PAGES: pgs 13,17
CITY OF EDGEWATER                     CORRECTION IS UNDERLINED IN RED
                                      MAILED: April 20, 2016
POLICE                                BY: NMS
DEPARTMENT/PREFERRED
GOVERNMENTAL CLAIMS
SOLUTIONS and STATE OF
FLORIDA,

      Appellees.

_____________________________/

Opinion filed April 20, 2016

An appeal from an order of the Judge of Compensation Claims.
Mark A. Massey, Judge.

Dates of Accident: August 3, 2011, and November 29, 2011.

Michael J. Winer of the Law Offices of Michael J. Winer, P.A., Tampa, and Geoffrey
Bichler of Bichler, Kelley, Oliver & Longo, PLLC, Maitland, for Appellant.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Amici Curiae
Fraternal Order of Police, Police Benevolent Association, International Union of
Police Associations, and Florida Association of State Troopers, in support of
Appellant.

George A. Helm, III, Lake Mary, and William H. Rogner, Winter Park, for Appellees
City of Edgewater Police Department/Preferred Governmental Claims Solutions.
Pamela Jo Bondi, Attorney General, Rachel Nordby, Deputy Solicitor General,
Office of the Attorney General, Tallahassee, for Intervenor State of Florida.




THOMAS, J.

      In this workers’ compensation appeal, Claimant, a law enforcement officer,

appeals two orders of the Judge of Compensation Claims (JCC): the first order

denied Claimant’s motion to approve two attorney’s fee retainer agreements – one

agreement provided for payment of a $1,500 retainer by Claimant’s union, the

Fraternal Order of Police Lodge 40 (FOP), and a second agreement provided that

Claimant would pay her attorney an hourly fee once the $1,500 is exhausted – and

the other order on appeal determined that Claimant failed to establish she sustained

a compensable injury. Claimant challenges the constitutionality of sections 440.105

and 440.34, Florida Statutes, which limit attorney’s fees as applied to her. She

argues these provisions infringe on her First Amendment rights protected under the

United States Constitution.

      We hold that the challenged provisions violate Claimant’s First Amendment

guarantees of free speech, freedom of association, and right to petition for redress.

For the reasons that follow, we reverse the appealed orders, and remand for a new




                                         2
hearing on the motion for approval of the retainer agreements and on Claimant’s

petitions for benefits.

                          Factual and Procedural Background

      Through counsel, Claimant filed two petitions for benefits. The first petition

alleged she was exposed over time to chemicals related to methamphetamine

production, which resulted in her becoming disabled on August 3, 2011. The second

petition alleged she was exposed to an intense smell that prevented her from

conducting any further investigation regarding a shoplifting case.              The

Employer/Carrier (E/C) filed Notices of Denial regarding both petitions, disputing

occupational causation of Claimant’s condition. Claimant voluntarily dismissed

those petitions, and her attorney withdrew as counsel of record.

      Thereafter, two retainer agreements were signed in this matter – one between

Bichler, Kelley, Oliver & Longo, PLLC (the Firm) and the Fraternal Order of Police

(FOP), and one between the Firm and Claimant. The agreement with the FOP

provided that the FOP would pay the Firm a flat fee of $1,500 to represent Claimant.

In the retainer agreement signed by Claimant, she stated she understood the $1,500

fee paid by the FOP would not be “sufficient compensation” if the Firm expended

more than 15 hours representing her; accordingly, Claimant agreed to pay her

attorney an hourly fee for all attorney time expended beyond 15 hours. Claimant

acknowledged in the agreement that the Workers’ Compensation Law prohibits such

                                         3
a fee arrangement, and specifically waived those statutory prohibitions. Claimant

further acknowledged that the Firm advised her of the extremely difficult legal

burden she must carry in order to prevail, and stated she was entering into this

agreement with the understanding she may not prevail.

      In July 2013, Claimant’s attorney filed two more petitions, each alleging a

chemical exposure during an investigation, and in each instance seeking

compensability of the exposure along with an award of attorney’s fees and costs.

The E/C filed a response, again asserting that these claims were the same that had

previously been denied, and again disputing occupational causation of Claimant’s

condition.

      In January 2014, Claimant’s attorney filed a “Motion to Approve Attorney’s

Fee,” seeking approval of both retainer agreements. Claimant’s attorney alleged that

because of the extensive litigation necessary to pursue an exposure claim, “it would

not be economically feasible for the undersigned to continue on a purely contingent

basis with fee restrictions as contained in Florida Statute § 440.34.” The attorney

certified that if the JCC denied the retainer fee, the Firm may have no choice but to

withdraw.

      An evidentiary hearing on the motion took place in July 2014. At the hearing,

Claimant’s attorney referenced the time-intensive nature of pursuing an exposure

claim under the Workers’ Compensation Law, asserting, “It is economically not

                                         4
feasible for our firm to continue to represent [Claimant] without being paid for it.”

Based on the fee restrictions contained in chapter 440 and the contingent nature of

the fee, Claimant’s attorney argued that “it is unreasonable to ask an attorney to

basically work for free.” The E/C represented that it was taking no position on the

issue, because the fee request did not involve an E/C-paid fee.

      After hearing argument, the JCC announced he was denying both retainer

agreements as being contrary to the Workers’ Compensation Law as it currently

exists. In his written order, the JCC noted that the argument advanced was

      not limited to the assertion that a guideline fee would be inadequate to
      compensate her attorney in the event she prevailed on the claim, which
      is the issue in Castellanos [v. Next Door Co., 124 So. 3d 392 (Fla. 1st
      DCA 2013)] and was also the issue in the Emma Murray [v. Mariner
      Health, 994 So. 2d 105 (Fla. 2008)] decision. Rather, claimant argues
      that the contingent nature of the fee, in and of itself, is what leads to the
      alleged economic infeasibility. This is a new and different argument
      altogether. To argue that a guideline fee would be inadequate to
      compensate an attorney in the event the attorney prevailed on the claim
      is one thing; to argue that the attorney should be paid up front for time
      spent, without having secured any benefits . . . is an entirely different
      proposition, and I can find no persuasive authority or reason to support
      it. . . .

      It is not the province of a JCC to decide whether the law is fair or
      reasonable. Rather, it is the job of the JCC to apply the law as it exists.
      I find that the law as it currently exists does not allow for non-
      contingent, claimant-paid hourly fees for prosecution of a claim on the
      merits.

      Thereafter, Claimant’s attorney filed a motion to withdraw and to impress a

lien based on hours expended. Claimant’s attorney explained that the agreement

                                           5
extended to prosecution of claims on behalf of Claimant only if the contractual

agreement was approved by the JCC. Further, “[t]he clear understanding between

the Claimant and the undersigned counsel was that, should the contract for

representation not be approved, then the undersigned counsel would have no choice

but to withdraw as counsel of record.” Claimant’s attorney explained that a conflict

of interest now arose, because Claimant wished to pursue the claims, but her

counsel’s continued representation of Claimant would create a financial hardship for

her counsel, “as well as an undue burden on her ability to practice law and to

zealously represent her other clients if she were to be forced to remain as counsel of

record on these claims.” Finally, Claimant’s attorney advised that Claimant had

been served with this motion to withdraw “and has indicated she does not object to

same.” The JCC granted the motion to withdraw and impress lien, finding that

“claimant and claimant’s counsel are in a position of conflict.”

      The merits hearing went forward, with Claimant appearing pro se. Claimant

renewed her request that the JCC approve the retainer agreements which would

allow her, and the FOP on her behalf, to retain the Firm to represent her. The JCC

again advised that the Workers’ Compensation Law does not permit payment of non-

contingent hourly attorney’s fees. Claimant’s prior attorney, who was present as an

observer, asked that the JCC take judicial notice of affidavits Claimant had obtained

from attorneys in which they asserted they did not have time to take this case on a

                                          6
contingency basis. The E/C objected on grounds the affidavits were not the sort of

documents that would qualify for judicial notice and were not relevant to the merits

of Claimant’s exposure claims. The JCC excluded the affidavits, agreeing they

related to the attorney’s fee question that was the subject of an earlier hearing and

should have been submitted at that time.

      Next, Claimant argued for entitlement to medical benefits, including ongoing

care, for her two dates of accident. The E/C responded that it was Claimant’s burden,

as she was a law enforcement officer, to prove by a preponderance of the evidence

that she was exposed to a specific level of a specific substance and that the exposure

actually caused her injury. See § 112.1815(2)(a)1., Fla. Stat. (2011) (providing that

first responders must prove exposure to toxic substance by preponderance of

evidence). The E/C maintained there was no evidence of a specific exposure and no

medical evidence linking any exposure to Claimant’s condition.

      Claimant was sworn in and testified regarding what occurred on the two dates

of accident. She testified that she became ill after each incident and lost time from

work, but was eventually released to return to work. She testified that she received

some medical treatment after the second exposure. On cross-examination, she

testified she had been diagnosed with Chronic Obstructive Pulmonary Disease prior

to the first date of accident and had seen her personal physician on three separate

visits regarding this condition. Claimant agreed it was possible that at the time of

                                           7
the events she was a cigarette smoker, as she had stopped and started smoking many

times. The E/C did not offer any exhibits or testimony from any witness.

      In closing argument, Claimant asserted that losing a significant amount of

work and requiring medical treatment for a short time after each event “would lead

anyone to believe that there was something that occurred that was out of the ordinary

from the individual normal health responses.” The E/C noted that this case would

have been difficult to prove, even with counsel. Because Claimant offered no

evidence necessary to meet her burden of proof, the E/C asked that the JCC enter an

order denying and dismissing her petitions for benefits with prejudice.

      In his order, the JCC denied and dismissed both petitions, concluding:

            In this case, claimant offered no evidence as to what the specific
      substance or substances were to which she was exposed. Further, she
      offered no evidence as to the levels to which she was exposed. Finally,
      she offered no evidence that the exposure she suffered can cause the
      injury or disease she complains of. Without such evidence, claimant
      cannot carry and has not carried her required burden of proof.

Claimant filed a motion for rehearing or motion to vacate the final compensation

order, arguing, in relevant part, that the JCC erred in not allowing her to submit the

affidavits she had secured from attorneys who declined to represent her. Claimant

argued that this was new information and evidence which “related to the futility of

trying to hire alternative counsel given the nature of her case. The evidence relates

directly to constitutional concerns of Equal Protection, Due Process of Law, and

First Amendment freedoms which are fundamental rights under both the State and
                                          8
Federal Constitutions.” Claimant argued that she had the right “to build a record

related to constitutional issues.” The JCC denied the motion both on grounds it was

untimely and on its merits. Notwithstanding that denial, the JCC allowed Claimant

to supplement the record and accepted the affidavits as proffered exhibits, noting

that even if he accepted them as evidence, his ruling would not change.

                                 Legal Background

      Paragraph 440.105(3)(c), Florida Statutes (2011), provides that an attorney

receiving a fee for services rendered in connection with proceedings under

chapter 440 commits a first-degree misdemeanor, unless the fee is approved by a

JCC. Subsection 440.34(1), Florida Statutes (2011), provides the JCC with the

following limits on his or her ability to approve an attorney’s fee:

      A fee, gratuity, or other consideration may not be paid for a claimant in
      connection with any proceedings arising under this chapter, unless
      approved by the [JCC] or court having jurisdiction over such
      proceedings. Any attorney’s fee approved by a [JCC] for benefits
      secured on behalf of a claimant must equal to 20 percent of the first
      $5,000 of the amount of the benefits secured, 15 percent of the next
      $5,000 of the amount of the benefits secured, 10 percent of the
      remaining amount of the benefits secured to be provided during the first
      10 years after the date the claim is filed, and 5 percent of the benefits
      secured after 10 years. The [JCC] shall not approve a compensation
      order, a joint stipulation for lump-sum settlement, a stipulation or
      agreement between a claimant and his or her attorney, or any other
      agreement related to benefits under this chapter which provides for an
      attorney’s fee in excess of the amount permitted by this section. The
      [JCC] is not required to approve any retainer agreement between the
      claimant and his or her attorney. The retainer agreement as to fees and
      costs may not be for compensation in excess of the amount allowed
      under this subsection or subsection (7).
                                          9
Subsection 440.34(2) instructs the JCC to “consider only those benefits secured by

the attorney” when awarding a fee. Thus, the relevant statutes impose a criminal

penalty on any attorney who accepts a fee for providing legal representation to a

workers’ compensation claimant who may not successfully obtain benefits under

chapter 440.

      The First Amendment of the United States Constitution provides, in relevant

part, that “Congress shall make no law . . . abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” Freedom of speech is “among the

fundamental personal rights and liberties which are secured to all persons by the

Fourteenth Amendment against abridgment by a state.” Thornhill v. Ala., 310 U.S.

88, 95 (1940).

                                Standard of Review

      An as-applied challenge, as raised here, is an argument that a law which is

constitutional on its face is nonetheless unconstitutional as applied to a particular

case or party, because of its discriminatory effects; in contrast, a facial challenge

asserts that a statute always operates unconstitutionally. In a First Amendment

challenge, “content-based speech restrictions will not survive strict scrutiny unless

the government can show that the regulation promotes a compelling government

interest and that it chooses the least restrictive means to further the articulated
                                         10
interest.” Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004) (citing Sable

Commc’ns of Calif., Inc. v. Fed. Commc’ns Comm’n, 492 U.S. 115 (1989)). In

Florida workers’ compensation proceedings, constitutional challenges of any sort

need not be preserved for appellate review, because JCCs lack jurisdiction to

determine constitutionality. See B & B Steel Erectors v. Burnsed, 591 So. 2d 644,

647 (Fla. 1st DCA 1991) (“[W]e note that workers’ compensation judges do not have

the power to determine the constitutionality of a portion of the Workers’

Compensation Act, and that such issues may be raised for the first time on appeal,

without having been preserved below.”).

        Furthermore, the applicable legal test by which to review the legislation itself

depends upon the particular claim.           Because First Amendment rights are

fundamental, “we apply strict scrutiny to section 440.34, regarding its effect on these

First    Amendment        rights   when     taken    in    conjunction     with section

440.105(3)(c).” Jacobson v. Se. Pers. Leasing, Inc., 113 So. 3d 1042, 1048 (Fla. 1st

DCA 2013). “To survive strict scrutiny, a law ‘[a] must be necessary to promote a

compelling governmental interest and [b] must be narrowly tailored to advance that

interest,’ and ‘[c] accomplishes its goal through the use of the least intrusive

means.’” Id. (quoting State v. J.P., 907 So. 2d 1101, 1110 (Fla. 2004)). The

applicable standard of “review,” even though there is no constitutional ruling to




                                           11
review, is de novo. See Medina v. Gulf Coast Linen Servs., 825 So. 2d 1018, 1020

(Fla. 1st DCA 2002).

                                       Analysis

                                 Freedom of Speech

      Included in the First Amendment’s fundamental guarantee of freedom of

speech, association, and to petition for redress of grievances, is the right to hire and

consult an attorney. In United Mine Workers of America, District 12 v. Illinois State

Bar Association, 389 U.S. 217 (1967), the Court held that “the freedom of speech,

assembly, and petition guaranteed by the First and Fourteenth Amendments” gave

the union “the right to hire attorneys on a salary basis to assist its members in the

assertion of their legal rights.” Id. at 221-22. The Court based this conclusion

on “the premise that the rights to assemble peaceably and to petition for a redress for

grievances are among the most precious of the liberties safeguarded by the Bill of

Rights. These rights, moreover, are intimately connected both in origin and in

purpose, with the other First Amendment rights of free speech and free press,” that,

although not identical, are inseparable. Id. at 222. Here, Claimant argues that the

fee statutes violate her right to free speech, because the evidence established that no

attorney would take her case if counsel’s compensation was limited to a “guideline”

fee, regardless of whether that fee was paid by the E/C or by Claimant.




                                          12
      In Jacobson, this court addressed a similar challenge to the fee statutes

challenged here, and explained that it viewed the “speech at issue here [was]

Claimant’s own words – given voice through his attorney – spoken or written before

the court in his defense during litigation.” 113 So. 3d at 1049. The claimant

in Jacobson was faced with a claim for litigation costs by the E/C and wished to hire

an attorney. The court held that the fee statutes – insofar as they limited claimant-

paid fees due under contract (as opposed to fees paid by an E/C to a claimant’s

attorney) – violated the claimant’s First Amendment rights, because they completely

denied his right to hire an attorney given that no benefits could ever be secured as a

result of the cost hearing, even upon a successful defense against the E/C’s motion

to tax costs. Id. at 1048-49. Because section 440.105(3)(c), Florida Statutes, makes

it a crime for an attorney to accept a fee that is not approved by a JCC, and section

440.34, Florida Statutes, prohibits a JCC from approving a fee that is not tied to the

amount of benefits secured, the two statutes operated as an unconstitutional

infringement on the claimant’s right to hire an attorney.

      Addressing the governmental interests advanced as the basis for these statutes,

the Jacobson court pointed to “the regulation of attorney's fees in general . . . ;

lowering the overall cost of the workers’ compensation system . . . ; and protecting

injured workers who are of relatively limited financial means . . . .” Id. at 1049. The

court found that the general interest in regulating fees in the context of prior case

                                          13
law related “specifically to the state’s interest in protecting the amount of benefits

secured by an injured worker under chapter 440 from depletion to pay a lawyer’s

bills,” and that it was “not evident from case law that these fee regulations represent

a general interest in ‘regulating attorney’s fees.’” 1 Id.

      The Jacobson court also held that the State’s interest in lowering the cost of

workers’ compensation premiums was “not implicated in the instant case because it

is Claimant, not the E/C, who would pay the fee implicated by the legal work at issue

here – defending against the E/C's motion to tax costs. Thus, premiums charged by

insurers would be unaffected.” Id. Finally, the court held that the interest in

“protecting the body of workers’ compensation benefits from depletion” was not

implicated, because “there can be no depletion of benefits where there are no

benefits. A successful defense against an E/C’s motion to tax costs does not

constitute ‘benefits secured.’” Id.

      Here, by contrast, Claimant was seeking to obtain workers’ compensation

benefits, and she properly requested the JCC approve retainer agreements, under

which Claimant and her union would pay an attorney out of their own funds to pursue




1
 The cases cited were Samaha v. State, 389 So. 2d 639, 640 (Fla. 1980); Lundy v.
Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506, 510 (Fla. 1st DCA 2006);
and Khoury v. Carvel Homes South, Inc., 403 So. 2d 1043, 1045 (Fla. 1st DCA
1981).
                                       14
those benefits.   Despite this difference, the analysis that led to the holding

in Jacobson still applies here, as we discuss below.

      We start with the premise that “[laypersons] cannot be expected to know how

to protect their rights when dealing with practiced and carefully counseled

adversaries.” Bhd. of R.R. Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1, 7

(1964). Here, although the JCC specifically found the attorney affidavits would not

have changed his ruling on the fee retainer issue, his ruling was that he did not have

jurisdiction over the constitutional arguments, and the JCC could not declare the

statutory provision unconstitutional.    See Burnsed, 591 So. 2d at 647 (noting

workers’ compensation judges do not have authority to determine constitutionality

of statutory provisions). In our view, the affidavits of the six attorneys support

Claimant’s argument that she could not secure their representation, as it is not

economically feasible for an attorney to undertake representation in a case as

complex as an exposure claim, knowing that a fee would be payable only if the claim

was successful. In other words, no reasonable attorney would accept the risk of

investing their labor into representing Claimant where the likelihood of receiving

any compensation was uncertain.

      The State cites United States Department of Labor v. Triplett, 494 U.S. 715,

717-18 (1990), to bring into question the sufficiency of Claimant’s record.

In Triplett, the assessment of the three attorneys relied upon by Mr. Triplett, as

                                         15
described in the opinion, were all commenting in the third person: “‘fewer qualified

attorneys are accepting black lung claims,’ and that more claimants are proceeding

pro se. . . . ‘few attorneys are willing to represent black lung claimants.’ . . . ‘many

of his colleagues had ‘. . . stated unequivocally that they would not take black lung

cases. . . .’” 494 U.S. at 723. Here, in contrast, the six affidavits spoke in the first

person: All six attorneys averred they would not be able to take this case on a

contingency basis under the current statutory scheme, where a fee is paid only if the

prosecution of the claim is successful. The evidence is direct, unlike the evidence

rejected in Triplett, 494 U.S. at 723-24, and the evidence persuasively supports

Claimant’s argument that sections 440.105 and 440.34 thwart her First Amendment

rights, which can be adequately exercised only by obtaining legal representation.

      Thus, because Claimant, a layperson, required legal counsel to pursue her

claim for benefits, and without counsel she was in all likelihood destined to fail in

that pursuit, there were no benefits to deplete, as in Jacobson. Therefore, the interest

in regulating attorney’s fees under the guise of protecting the amount of benefits

secured by an injured worker against unreasonable attorney’s fee payments, or of

protecting the body of workers’ compensation benefits from depletion, was not and

could not be implicated if securing any benefits was effectively prevented by

Claimant’s inability to secure counsel. As the court in Jacobson observed, “there

can be no depletion of benefits where there are no benefits.” 113 So. 3d at 1049.

                                          16
      Furthermore, even to the extent that Claimant may have prevailed, and was

only entitled to an E/C-paid fee based on the guidelines which would not cover the

amount she paid out of pocket, Claimant would still be left in a better position with

counsel, as without counsel she likely would obtain no benefits at all (and been

exposed to a potential claim for costs as well). As noted in the concurring opinion

to In re Amendment to the Rules Regulating the Florida Bar – Rule 4-1.5(f)(4)(B)

of the Rules of Professional Conduct, 939 So. 2d 1032, 1041 (Fla. 2006), “[t]here

are many reasons why a client would choose a particular lawyer at a rate which

would be higher than that charged by other lawyers.” Likewise, there may be many

reasons why a claimant in a workers’ compensation case may choose to pay more in

attorney’s fees than she otherwise would under the guidelines, including increasing

her likelihood of obtaining any benefits at all. The equation is simple: Some

compensation is superior to no compensation.

      Furthermore, again as in Jacobson, an attorney’s fee paid by Claimant and her

union would have no impact on workers’ compensation premiums, because

Claimant and her union are the ones paying the fee, not the E/C. If Claimant

prevailed, the E/C still could not be required to pay more in fees that the Legislature

allows under section 440.34, Florida Statutes, regardless of Claimant obtaining legal

counsel not authorized under chapter 440, as Claimant would pay the excess fee.




                                          17
      Nor are we persuaded that the exception to strict scrutiny review for laws that

permissibly restrict the time, place, or manner of the exercise of the applicable rights

has been satisfied. As we noted in Jacobson, “such [time, place and manner] laws

must (a) be content-neutral, (b) be narrowly tailored to serve a significant (rather

than “compelling”) governmental interest, and (c) leave open alternative channels of

communication.” 113 So. 3d at 1049 (citing Clark v. Cmty. for Creative Non–

Violence, 468 U.S. 288, 293 (1984)).

      Applying this test here, sections 440.105(3)(c) and 440.34 fail, because

      [t]here is no significant governmental interest being served, because
      there is no “benefit secured” associated with the fees at issue in this
      case and, thus, no need to protect such from depletion. Moreover, the
      legislation is not content-neutral. “The principal inquiry in determining
      content neutrality, in speech cases generally and in time, place, or
      manner cases in particular, is whether the government has adopted a
      regulation of speech because of disagreement with the message it
      conveys.” Ward [v. Rock Against Racism, 491 U.S. 781, 791, 1989)].
      The fee restrictions at issue here are not content-neutral, both because
      they are limited to work done on workers’ compensation issues as
      opposed to other areas of law, and because they are imposed only on
      claimants arguing [entitlement to benefits], rather than on both parties’
      arguments . . . .

Id. at 1050.

      Thus, we conclude that, to the extent these statutes prohibit a workers’

compensation claimant (or a claimant’s union) from paying attorney’s fees out of

their own funds for purposes of litigating a workers’ compensation claim, these

statutes are unconstitutional, because they impermissibly infringe on a claimant’s

                                          18
rights to free speech and to seek redress of grievances. Additionally, any fee

agreement “must nonetheless, like all fees for Florida attorneys, comport with the

factors set forth in Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454,

458 (Fla.1968), and codified in the Rules Regulating the Florida Bar at rule 4–

1.5(b).” Jacobson, 113 So. 3d at 1052. Consequently, we hold that no attorney

accepting fees in this situation may be prosecuted under section 440.105(3)(c),

Florida Statutes.

                                 Freedom to Contract

      The Jacobson court also held that the statutes under review violated the

claimant’s right to contract for legal services. Id. at 1050. “The right to make

contracts of any kind, so long as no fraud or deception is practiced and the contracts

are legal in all respects, is an element of civil liberty possessed by all persons who

are sui juris. It is both a liberty and property right and is within the protection of the

guaranties against the taking of liberty or property without due process of law.” State

ex rel. Fulton v. Ives, 167 So. 394, 398-99 (Fla. 1936) (citations omitted). “The right

to contract is one of the most sacrosanct rights guaranteed by our fundamental law.”

Lawnwood Med. Ctr. v. Seeger, 959 So. 2d 1222, 1224 (Fla. 1st DCA 2007).

      “Like the First Amendment rights to freedom of speech, assembly, and

petition, the right to contract for legal services is a fundamental right, implicating

strict scrutiny.” Jacobson, 113 So. 3d at 1050. Although strict scrutiny applies,

                                           19
because the right to contract is a property right, the relevant exception to strict

scrutiny review is whether the restrictions on the right to contract represent a

“reasonable restraint” under the State’s police power, “the right being ‘the general

rule’ and its restraint ‘the exception to be exercised when necessary to secure the

comfort, health, welfare, safety and prosperity of the people.’” Id. at 1050-51

(quoting Golden v. McCarty, 337 So. 2d 388, 390 (Fla. 1976)).

      The Jacobson court determined that the statutory limitations on attorney’s fees

were not a permissible exercise of that police power in the context of a legal defense

against a motion to tax costs, because the fee provisions precluded entirely the

claimant’s ability to obtain legal representation. Id. at 1051. The Jacobson court

distinguished the determination in Lundy v. Four Seasons Ocean Grand Palm

Beach, 932 So. 2d 506 (Fla. 1st DCA 2006), that section 440.34 “‘does not offend

the right to freely contract,’” on grounds that Lundy addressed E/C-paid fees as

opposed to claimant-paid fees. Id. at 1052 (quoting Lundy, 932 So. 2d at 510).

      Here, although, Claimant is seeking benefits (unlike the claimant in

Jacobson), she argues that her right to contract is no less violated by the strict

adherence to the fee schedule than it was under the circumstances in Jacobson, where

the issue was not an E/C-paid fee, but a claimant-paid fee, because the challenged

statutes prevented Claimant from retaining and paying an attorney with her own

funds (or those of her union) in an amount not based on the mandated statutory fee

                                         20
schedule.   The issue, therefore, is whether sections 440.105 and 440.34 are

constitutionally permissible restrictions on claimant-paid fees based on the State’s

police power.

      “There is no settled formula for determining when the valid exercise of police

power stops and an impermissible encroachment on private property rights begins.”

Graham v. Estuary Props., Inc., 399 So. 2d 1374, 1380 (Fla. 1981) (reviewing

decision to deny approval for development of wetlands). As we noted in Jacobson,

however, the Florida Supreme Court listed some factors in Graham which have been

considered in past appeals, and the Jacobson court found that the following of those

factors were relevant in addressing the fees statutes at issue here: (1) whether the

regulation confers a public benefit or prevents a public harm; (2) whether the

regulation promotes the health, safety, welfare, or morals of the public; and

(3) whether the regulation is arbitrarily and capriciously applied. Jacobson, 113

So. 3d at 1051.

      Regarding factor (1), the supreme court observed, “If the regulation creates a

public benefit it is more likely an exercise of eminent domain, whereas if a public

harm is prevented it is more likely an exercise of the police power.” Graham, 399

So. 2d at 1381. The fee regulations here are intended to prevent public harm, and

are therefore at least purportedly an exercise of the State’s police power. See

generally City of El Paso v. Simmons, 379 U.S. 497, 508 (1965) (noting, in

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reviewing statute governing forfeiture of public land sale contracts for nonpayment

of interest, that Legislature has “wide discretion” in determining what is necessary

to protect general welfare of people in association with police power).

      For the same basic reasons addressed above holding that these statutes do not

advance the State’s interest in regulating attorney’s fees to protect the amount of

benefits a claimant is awarded, the statutes do not actually prevent a public harm.

To the contrary, as Claimant established, the statutes actually operated to discourage

attorneys from representing her, thus potentially placing the burden for any allegedly

compensable injury or condition, which might normally be borne by the E/C, on the

public as a whole, if Claimant is forced to access governmental benefits. Thus, the

statutes cannot be reasonably read to prevent a public harm.

      Likewise, the statutes’ restrictions on a claimant’s ability to contract for legal

representation to obtain benefits no longer promote the health, safety, welfare, or

morals of the public when, as demonstrated here, an injured worker is unable to

secure benefits to which she could potentially otherwise be entitled under law,

because of the statutory restrictions on attorney compensation. Finally, application

of the statutes to this scenario is arbitrary and capricious, because only the attorney’s

fees paid to claimants’ attorneys are regulated, and E/Cs are free to contract for legal

services without limitation. See id. (holding application of statutes to scenario in




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which only claimant is restricted from paying for legal services in an action for costs

is arbitrary and capricious).

      We recognize that the Legislature could intend to prevent the public harm

caused when injured workers might quixotically seek benefits the worker is highly

unlikely to obtain. In addition, the Legislature could rationally seek to disincentivize

meritless litigation which disrupts the workplace and causes unnecessary hostility

between employers and employees. But in a free society which attempts to allow

individuals the intellectual prerogative to personally weigh the benefits and risk of

exercising their statutory right to obtain redress for their injury, we hold that the

rational intent to minimize workplace litigation cannot ultimately trump the benefits

the public obtains by allowing an injured worker, or one who personally thinks she

is injured, to seek redress under law. Thus, the public harm to be prevented – undue

depletion of workers’ financial resources and undue disruption of the workplace –

does not prevail against the individual’s right to contract for legal representation.

      Because the record establishes that Claimant demonstrated that, as applied to

her, the restrictions on her right to contract for legal work in workers’ compensation

cases do not adequately prevent public harm, no longer promote the health, safety,

welfare, and morals of the public, and are being arbitrarily and capriciously applied,

sections 440.105 and 440.34 are not a valid exercise of the State’s police power, and

thus are unconstitutional violations of the right to contract.

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                                       Waiver

      Florida case law has long recognized that an individual can waive his or her

personal constitutional rights. In re Shambow’s Estate v. Shambow, 15 So. 2d 837,

837 (Fla. 1943) (“It is fundamental that constitutional rights which are personal may

be waived.”). Courts have also recognized the ability to waive various protective

rights, including the right to present mitigating evidence in the penalty phase of a

first-degree murder trial, see Spann v. State, 857 So. 2d 845, 853 (Fla. 2003); the

right to require a warrant before authorities can search one’s property, see Lockwood

v. State, 470 So. 2d 822 (Fla. 1985); the right to remain silent, see Bailey v. State,

31 So. 3d 809, 812 (Fla. 1st DCA 2009); and the right to a jury or speedy trial, see

Torres v. State, 43 So. 3d 831 (Fla. 1st DCA 2010), and State v. Burgess, 153 So. 3d

286 (Fla. 2d DCA 2014).

      Logically, then, if a person can waive constitutional rights, a person can also

waive statutory rights such as those in section 440.34, Florida Statutes. For example,

in In re Amendment to the Rules Regulating the Florida Bar – Rule 4-1.5(f)(4)(B)

of the Rules of Professional Conduct, the Florida Supreme Court approved a Florida

Bar rule that allowed medical malpractice plaintiffs to waive the constitutional caps

on attorney’s fees, subject to certain conditions. 939 So. 2d at 1038-39. Notably,

those conditions did not require judicial review of such waivers; whereas in the

workers’ compensation context, the JCC must approve as reasonable the fee a

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claimant agrees to pay her attorney.       Likewise, here, we see no reason why a

workers’ compensation claimant should not be able to waive a limitation on claimant

attorney’s fees and agree to pay her attorney with her own (or someone else’s) funds,

subject to a JCC’s finding that the fee is reasonable.

                                     Conclusion

      In conclusion, the restrictions in sections 440.105 and 440.34, when applied

to a claimant’s ability to retain counsel under a contract that calls for the payment of

a reasonable fee by a claimant (or someone on his or her behalf), are unconstitutional

violations of a claimant’s rights to free speech, free association, and petition – and

are not permissible time, place, or manner restrictions on those rights. Likewise,

those provisions also represent unconstitutional violations of a claimant’s right to

form contracts – and are not permissible police power restrictions on those rights.

Thus, we hold that the criminal penalties of section 440.105(3)(c), Florida Statutes,

are unenforceable against an attorney representing a workers’ compensation client

seeking to obtain benefits under chapter 440, as limited by other provisions

discussed above.

      We conclude that the statutory restrictions are unconstitutional, and that the

proper remedy is to allow an injured worker and an attorney to enter into a fee

agreement approved by the JCC, notwithstanding the statutory restrictions.




                                          25
Accordingly, we reverse the orders of the JCC, and remand for a new hearing on the

motion to approve the retainer agreements and on the petitions for benefits.

      REVERSED and REMANDED for further proceedings consistent with this

opinion.

ROBERTS, C.J., and WOLF, J., CONCUR.




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