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The Florida Minimum Wage Act: thoughts on the impending notice debate.

I. INTRODUCTION

Although litigation has yet to erupt in this arena, the 2005 Minimum Wage Amendment to the Florida Constitution (2) laid the groundwork for what may soon become a hotbed of litigation. (3) Specifically, the Minimum Wage Amendment ("Amendment") set a minimum wage above the federal standard and created a civil cause of action and specifically allowed the Florida legislature or Agency for Workforce Innovation to "adopt any measures appropriate for the implementation of this amendment." (4) The result has led to little litigation to date, but the two initial cases examining the implementing legislation--Throw v. Republic Enter. Sys., Inc. and Resnick v. Oppenheimer & Co., Inc.--indicate the battles ahead will be hotly contested and may continue to lead to divergent results in the court systems. (5)

Enacted by the Florida legislature, the Florida Minimum Wage Act (6) was the first implementing legislation created pursuant to the Amendment's power. (7) One of the most significant provisions requires a prospective plaintiff to notify his or her employer in writing of the alleged failure to comply with the statute. (8) The statute then grants the employer "15 calendar days after receipt of the notice to pay the total amount of unpaid wages or otherwise resolve the claim to the satisfaction of the" prospective plaintiff. (9)

The ability to bring a claim directly under the Amendment and the enforceability of these statutory provisions were subsequently challenged. (10) The first two Florida federal district courts to publish opinions regarding the enforceability of this notice provision as a precondition to filing suit directly expressly disagreed with each other, and subsequent cases have shown continued discord. (11) As a result, employers and employment lawyers should expect a rise in litigation in this area in the near future, at least until answers to these major questions are settled.

II. OVERVIEW OF THE MINIMUM WAGE AMENDMENT AND THE MINIMUM WAGE ACT

Prior to considering the arguments relating to the applicability and effect of the Minimum Wage Act, one must explore the express individual provisions of both the Amendment and the Minimum Wage Act. (12) Notably, the Florida Supreme Court has repeatedly explained constitutional provisions must be interpreted in order to maintain to the intent of the implementer. (13) Further, legislation implementing or relating to constitutional provisions must be interpreted in a way allowing the legislation to be found constitutional, if possible. (14) Only after such literal examination of the two writings can we properly compare them and consider their proper interpretations. (15)

A. MINIMUM WAGE AMENDMENT TO THE FLORIDA CONSTITUTION

The Minimum Wage Amendment to the Florida Constitution, approved by Florida's voters on November 2, 2004, (16) took effect on May 2, 2005. (17) The Amendment is divided into seven distinct sections, (18) the relevant sections of which are explained below. (19)

1. Section 24(a)--Public Policy

The Amendment begins with a telling public policy section, (20) which states:
 Floridians are entitled to be paid a minimum wage that is
 sufficient to provide a decent and healthy life for them and their
 families, that protects their employers from unfair low-wage
 competition, and that does not force [employees] to rely on
 taxpayer-funded public services in order to avoid economic
 hardship. (21)


This policy statement seems to indicate the goal of the Amendment itself is not only to protect workers, but also to provide protections for employers from injustices, which likely occur when employers are required to compete with unregulated workplaces.

Significant in considering the appropriateness of the implementing language, the policy language in the constitution specifies the people of Florida did not intend for employees to be benefitted at the expense of employers, but instead the citizenry sought to create an equitable and just situation for three separate interest groups: (1) employees; (22) (2) employers; and (3) each tax-paying citizen. (23) One of the major issues being litigated is whether the implementing legislation's notice provision conflicts with the Amendment. (24) Based on this policy language, I submit that the notice provision at least complies with the spirit of the Amendment, as explained further below. (25)

2. Section 24(e)--Enforcement

After defining the terms "employer," "employee," and "wage," (26) setting the minimum acceptable wage in Florida, (27) and protecting against potential employer retaliation for exercising the rights protected in the Amendment, (28) the Amendment explains the general enforcement mechanism for exercising the rights vested under the Amendment. (29)

The Amendment specifically allows for civil actions by an allegedly aggrieved employee or the Florida "attorney general or other official designated by the state legislature" against employers who violate the amendment, (30) and mandates that the successful plaintiff or aggrieved party receive, (1) back wages, (2) liquidated damages in the amount of back wages, and (3) reasonable attorney's fees and costs. (31) In addition, this provision provides the court may, in its discretion, award appropriate legal and equitable relief to the successful plaintiff, "including without limitation reinstatement and/or injunctive relief." (32) Further, if the employer is found to have violated the Amendment "willfully," the employer "shall also be subject to a fine payable to the state in the amount of $1000.00 for each violation." (33)

This provision ends by expressly authorizing actions under the Amendment to be brought as class actions in accordance with the Florida Rule of Civil Procedure governing class status. (34) Further, it sets the statute of limitations in which to bring a claim under the Amendment as four years for inadvertent violations and five years for "willful" violations. (35)

The two most significant and interesting parts of this subsection from a liability perspective are the sentences setting forth the statute of limitations and possibility for class treatment. The subsequent section of the Amendment interestingly notes the Amendment "intend[s] that case law, administrative interpretations, and other guiding standards developed under the federal FLSA shall guide the construction of this amendment and any implementing statutes and regulations." (36)

But, despite this intent to use the Federal Fair Labor Standard Act ("FLSA") (37) as a measuring stick by which the Amendment would be interpreted, the Amendment deviates in these two important areas from the FLSA. (38) Specifically, where the Amendment provides a four and five-year limitations period, the FLSA provides for a much more limited two-year statute of limitations for inadvertent violations and extends the statutory period to three years in the case of willful violations. (39) Additionally, the Amendment states civil claims brought to enforce this right may be brought in class form while the FLSA provides a unique "collective action" scheme under [section] 2 1 6(b). (40)

These two notable differences between the Amendment and the FLSA should perhaps be the most alarming to employers--particularly when they are considered together. For instance, the possibility of class treatment where class plaintiffs remain part of the plaintiff pool without taking any action could expose employers to much greater liability than they would be exposed to under the FLSA's opt-in method. (41) Because the FLSA employs an "opt-in" method in collective actions, where class members need to affirmatively join the pool of plaintiffs by filing a form stating that they do wish to join the action, the number of members of the group seeking recovery tends to be much smaller. (42) Thus, the ease with which additional class members are added under the Amendment is much greater than under the FLSA. (43) Adding in the additional several years for which an employer could potentially be held liable under the Amendment's longer statute of limitations, (44) employers should be extremely concerned about their potential exposure under the Amendment.

3. Section 24(f)--Additional legislation, implementation and construction

The Amendment is clearly intended to be self-executing based on the important opening line to this section stating that "[i]mplementing legislation is not required in order to enforce this amendment." (45) Regardless, as discussed below, the mere fact that a constitutional amendment is self-executing does not restrict the right of the legislature from creating appropriate and completely enforceable implementing legislation. (46) In fact, this provision specifically reserves various rights to the state legislature. (47)

After stating no implementing legislation is required for the Amendment to take effect, the Amendment provides several instances in which governmental bodies may add to the Amendment's protections. (48) This provision first states the Florida legislature may enact legislation, (1) providing additional remedies in the event of violation of the Amendment, (2) raising the current state minimum wage, (3) reducing the tip credit defined in Section 24(c) of the Amendment, or (3) "extend[ing] coverage of the Minimum Wage to employers or employees not covered by" the Amendment. (49)

These rights reserved for the legislature appear to be intended to give the legislature the ability to provide the citizens of Florida greater protections in the event the legislature deems it necessary at a future time. This is consistent with the public purpose of the Amendment noted in Section (a) (50) Interestingly, though, these specifically named protections do not name any potential further protections for employers who may be sued in the future under the Amendment. (51)

But immediately following these express additional worker protections, the Amendment grants the same legislature, along with Florida's Agency for Workforce Innovation, the right to "by statute or ... regulation [to] adopt any measures appropriate for the implementation of this amendment." (52) This language is the most significant for the purposes of the discussions herein, as the Florida statute enacted by the legislature for the purpose of implementing the Amendment--namely Section 448.110--is the statute in dispute. (53) The rights granted in this line of the Amendment should be interpreted in the same way as the further protections granted to employees in the previous sentence--namely, in accordance with the public policy behind the implementation of the Amendment. As a result, it seems not only possible, but likely, that the Amendment intended to provide the legislature with the ability to write legislation regarding procedures through which civil claims under the Amendment can be brought. Thus, employers will not be unfairly bombarded with lawsuits, which would directly contradict the public policy purpose of protecting employers, along with employees and the general public, by creating a new problem for them.

Finally, the Amendment makes two interesting statements regarding the intent of the drafters of the Amendment. (54) The first states the Amendment should not be interpreted to "preempt or otherwise limit the authority of the state legislature or any other public body to adopt or enforce any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends such protections to employers or employees not covered by this amendment." (55) This expressly states that protecting employers, as well as employees, through future legislation and subsequent rule-making is available to those public bodies regardless of whether they are covered by the Amendment, (56) again showing that the public purpose of the Amendment should not be ignored. The second states the interpretation of the FLSA should "guide the construction of this amendment and any implementing statutes or regulations," (57) which further implies the drafters of the Amendment expected implementing legislation would be enacted at some point.

B. FLORIDA MINIMUM WAGE ACT

Pursuant to its powers granted under article 10, section 24 of the Florida Constitution, the Florida Legislature enacted the Florida Minimum Wage Act ("FMWA"). (58) Although this statute is the implementing legislation foreseen by section 24(f) of the Amendment, its constitutionality has recently come under attack. (59) Further, one challenge to the exclusivity of the cause of action under the FMWA has succeeded, as the Middle District of Florida determined there are parallel causes of action which can be brought under either the Amendment itself or the statutory implementing legislation. (60) This is so despite the obvious argument that such an interpretation frustrates the purpose of the implementing language provision of the constitutional amendment itself. (61) The provisions of the Minimum Wage Act, which are important to these brewing litigation issues, are explained in detail below. (62)

C. FLA. STAT. [section] 448.110(2)--PURPOSE

The legislature cited to the Amendment itself when stating the "purpose of this section is to provide measures appropriate for the implementation of s. 24, Art. X of the State Constitution, in accordance with authority granted to the Legislature pursuant to s. 24(f), Art. X of the State Constitution." (63) Thus, the legislature merely intended to take up the charge allowed by the constitution's express language.

Notably, this is not the only place where the purpose of the FMWA is discussed with regards to the legislation. (64) In fact, there is a more specific statement of purpose regarding the notice provision--[section] 448.110(6)--which has been the focus of the suits thus far. (65) Discussed more fully below, the Senate Staff Analysis and Economic Impact Statement, while not part of the FMWA itself and not an official statement of the introducer of the bill, (66) recognized that the "15-day [notice] period gives an employer the opportunity to resolve the dispute." (67) However, this Staff Analysis recognized that "[t]o the extent this implementing legislation unreasonably limits access to the court, it may be subject to constitutional challenge." (68) This Staff Analysis is discussed further herein. (69)

D. FLA. STAY. [section] 448.1 10(6)(A)-(B)--PREREQUISITE TO FILING CIVIL ACTION

First, this subsection recognizes there is a substantive right for "[a]ny person aggrieved by a violation of [the FMWA to] bring a civil action in a court of competent jurisdiction against an employer violating this section or a party violating subsection (5)," (70) with subsection (5) being the retaliation provision. (71) But the language at the center of the debate surrounding the FMWA immediately follows:
 However, prior to bringing any claim for unpaid minimum wages
 pursuant to this section, the person aggrieved shall notify the
 employer alleged to have violated this section, in writing, of an
 intent to initiate such an action. The notice must identify the
 minimum wage to which the person aggrieved claims entitlement, the
 actual or estimated work dates and hours for which payment is
 sought, and the total amount of alleged unpaid wages through the
 date of the notice. (72)


In addition, subsection (6)(b) of the FMWA then provides the notified employer with 15 days after receiving the notice to rectify the alleged shortfall, notably even equitably tolling the statute of limitations during this period:
 The employer shall have 15 calendar days after receipt of the
 notice to pay the total amount of unpaid wages or otherwise resolve
 the claim to the satisfaction of the person aggrieved. The statute
 of limitations for bringing an action pursuant to this section
 shall be tolled during this 15-day period. If the employer fails to
 pay the total amount of unpaid wages or otherwise resolve the claim
 to the satisfaction of the person aggrieved, then the person
 aggrieved may bring a claim for unpaid minimum wages, the terms of
 which must be consistent with the contents of the notice. (73)


The combination of these subsections, (6)(a) and (6)(b), add the only prerequisite to filing suit under either the Amendment or in the FMWA. (74) While the precondition has logical underpinnings based in commonly accepted legal themes of fundamental fairness, equitable resolution of claims, and preservation of scarce resources for litigation, it has come under attack by the Florida plaintiff's bar, (75) as explained below. (76)

E. FLA. STAY. [section] 448.1 10(6)(D)--APPLICABILITY OF THE RULES REGARDING OFFERS OF AND DEMANDS FOR JUDGMENT

Although there is no express allowance for incorporating the statutory provisions for offers of and demands for judgment (77) in the Amendment, the FMWA specifically incorporates that provision by saying any civil action "brought under s. 24, Art. X of the State Constitution and this section shall be subject to s. 768.79." (78)

While the plaintiffs' bar has challenged the constitutionality of the notice provisions, (79) if they are correct in their arguments, logically, this provision would also be unconstitutional since it is a cost and fee shifting statute, which encourages plaintiffs to accept reasonable offers, similar to Federal Rule of Civil Procedure 68. (80) But as discussed herein, both provisions are likely valid and enforceable. (81)

F. FLA. STAT. [section] 448.1 10(10)--EXCLUSIVE REMEDY FOR VIOLATIONS OF THE AMENDMENT

In an attempt to quell future filings directly under the Amendment, the legislature specified that the FMWA would be the exclusive vehicle for seeking recovery for the rights guaranteed by the Amendment. (82) Logically, it appears the intent of the legislature was to avoid attempts to circumvent the policy-driven provisions it crafted--including the prerequisites to filing a civil action in subsection (6)--by filing claims directly under the language in the Amendment while ignoring the implementing legislation. (83) Such is the issue in Throw. (84)

III. REVIEW OF THE DIVERGENT THROW AND RESNICK OPINIONS

In order to understand and explore the various directions from which the FMWA has been attacked, it is integral to understand the arguments made and decisions in the two initial cases exploring this legislation. Although a few other FMWA cases have been decided since Throw and Resnick providing the initial answers regarding the enforceability of the FMWA's notice provision, (85) the Throw and Resnick cases have been the benchmark analyses against which those more recent cases have been determined. (86) Given the stark differences between those two written opinions, (87) this analysis is particularly important here.

A. THE THROW OPINION

In early 2006, Plaintiff Tammy Elaine Throw sued Defendant Republic Enterprise Systems, Inc., in the Middle District of Florida for alleged willful failure to pay for services rendered in accordance with the FMWA. (88) Ms. Throw also filed her complaint as a class action, in accordance with the class provisions under the Amendment and FMWA. (89) Specifically, she pled one count directly under Article X, Section 24, of the Florida Constitution and one directly under the FMWA. (90)

The defendant moved to dismiss these two counts on the basis that Ms. Throw failed to give Republic notice in accordance with the FMWA. (91) The parties did not dispute that Ms. Throw failed to give Republic notice, (92) but instead Ms. Throw contended she did not have to comply with the notice provision because she could sue directly under the Amendment and the Amendment had no notice requirement. (93) Upon full briefing, Judge James S. Moody granted dismissal in part, granting the dismissal on the FMWA claim because the statute's notice requirement was not met, but allowing the claim directly under the Amendment to proceed because the Amendment itself contains no notice requirement. (94)

The analysis of the motion to dismiss the FMWA claim was brief and to the point. (95) The court agreed that when a "[p]laintiff seeks relief under [the FMWA], [the] [p]laintiff must also fulfill the conditions precedent of bringing such an action." (96) The court then reviewed the notice provisions in section 448.110(6)(a)-(b) and determined the FMWA claim should be dismissed because the "[p]laintiff has not alleged that the written notice requirement under [the FMWA] has been fulfilled, nor has [the] [p]laintiff alleged basic details regarding her actual or estimated work dates and hours for which payment is sought, or the total amount of alleged unpaid wages for which Plaintiff is entitled." (97)

But while the court upheld the validity of the notice provision in relation to the FMWA, it essentially determined a parallel cause of action remained directly under the Florida constitution to which the notice provision did not apply, and denied Defendant's motion to dismiss on that count. (98) After briefly discussing the history of both the Amendment and the FMWA, the court even notes that this "is a close question" before explaining its reasoning for reaching such a difficult conclusion. (99)

Judge Moody recognized that "when comparing the provisions of Section 24, to those of [section] 448.10(6)(a) [sic], it is apparent that [section] 448.10(6)(a) [sic] creates and imposes an additional requirement beyond that required under Section 24, to wit: a potential plaintiff must provide written notice to an employer prior to bringing suit under the Florida Minimum Wage Act." (100) But the court determined the Amendment itself "creates a constitutional right entitling all persons aggrieved by a violation of [the Amendment] to bring a civil action in a court of competent jurisdiction," and the court felt that this notice requirement was inappropriate, although it did not exactly explain the reason. (101)

In a brief section of the opinion only spanning a few paragraphs, the court merely notes that subsection (f) of the Amendment states "'[i]mplementing legislation is not required in order to enforce this amendment," but subsequently makes no mention of the specific carve-out in the same section of the Amendment for the legislature to in fact write implementing legislation if it so desired. (102) Instead, the court identified three distinct and fundamental principles of Florida law. (103)

First, the court stated the Florida constitution cannot be amended or revised unless it is done through the constitution itself. (104) Next, the court explains "the Constitution cannot be modified, amended or repealed by legislative enactments, executive usurpation, or judicial interpretation, except by amendment." (105) This second proposition of law merely elaborates upon the first, and begs the question as to whether the implementing legislation does any of these prohibited acts when Subsection (f) of the Amendment itself specifies that the legislature may enact "implementing legislation." (106) Finally, the court states the longstanding test for determining the constitutionality of a statute "'[i]n determining whether a challenged statute is violative of constitutional provisions, the rule is that "[t]he constitutionality of a statute should be determined by its practical operation and effect."'" (107)

Again, this proposition of law merely begs the question as to whether the notice provision of the FMWA is the precise type of procedural implementing legislation that the Amendment expressly anticipated--the operative question being whether the "practical operation and effect" of the Amendment is frustrated by the notice requirement.

After stating these general propositions of law, Judge Moody's analysis sharply concludes in an abrupt two sentence paragraph that "[t]hrough the enactment of Fla. Stat. [section] 448.10 [sic], the legislature attempts to add a requirement that must be fulfilled before an aggrieved party may exercise a fight previously granted by the Constitution. This they cannot do." (108) Notably absent following this statement are any citations regarding the imposition of a precondition to filing suit as part of legislation "implementing" the statute when such legislation is specifically allowed by the constitution. (109) Instead, the analysis ends, and the surviving claims ultimately settled. (110)

B. THE RESNICK OPINION

Where Judge Moody's opinion in Throw is brief and lacks analysis, Southern District of Florida District Judge Kenneth A. Marra's opinion in the Resnick case carefully analyzes various issues which were not discussed in Throw. (111) In this case, Mr. Resnick asserted "his FMWA claim as a class action pursuant to Fed.R.Civ.P. 23," (112) and pled his claim in a single count under both the Amendment and the FMWA. (113) Mr. Resnick's former employer, Oppenheimer & Co., Inc., simply moved to dismiss the FMWA claim on the basis that Mr. Resnick failed to meet the notice requirement. (114) Essentially relying entirely on the Throw opinion, Mr. Resnick responded that "this statutory procedure has already been struck down in federal court because it impermissibly limits a state constitution that is self-executing on its face." (115) However, even in its loosest reading, Throw never appears to reach such a conclusion as explained prior, (116) although Mr. Resnick did ask Judge Marra to reach such a conclusion. (117)

Instead, Judge Marra identified that the Throw Court recognized under the Amendment itself a "'constitutional right directly enforceable in a court of law by an aggrieved part, with no requirement that notice be given'" (118) and then "respectfully disagree[d] with the analysis of the Throw court...." (119) The Resnick Court read the entire subsection (f) of the Amendment--which contains the provision stating no implementing legislation is necessary to make the rights in the Amendment enforceable, which is then followed by the provision expressly allowing for implementing legislation--and determined:
 Reading these two sentences together, it appears that the people of
 Florida intended to guarantee workers a constitutional right to a
 minimum wage without making the right dependent upon action of the
 legislature. However, at the same time, the people of Florida
 authorized the legislature, in its wisdom, to enact legislation
 that would implement the constitutional right. (120)


Judge Marra's analysis thus goes far beyond that in Throw, directly addressing the interplay between self-executing constitutional provisions and implementing legislation. (121) In fact, Judge Marra concluded that "the fact that an individual has a constitutionally guaranteed ability to enforce a right does not mean that the legislature is categorically barred from regulating the method of that enforcement when such regulation is permitted on the face of the constitutional provision." (122)

However, the Resnick analysis does not stop at finding that the legislature in fact had the fight to implement legislation for the enforcement of the Amendment, but instead notes that "where a statute 'violates expressly or clearly implied mandates of the Constitution, the act must fall'" and then directly discounts that concern. (123) Judge Marra stated that "[t]his statute does not present such a case" because "[t]he statutory [notice] provision merely requires that the employer be notified of the worker's claim so the matter can be resolved within a relatively short period of time." (124) Also, the court recognized that "[t]he worker's rights are fully protected during the statutory time period by tolling the running of the statute of limitations." (125)

The most notable difference between the two opinions is that the Resnick opinion recognizes the purpose and effect of the legislation (126) where the Throw opinion merely exclaimed a cause of action under the Amendment not subject to the notice requirement remained despite the implementing legislation. (127) Specifically, Judge Marra averred that while the "statutory provision which fully protects the fight of the worker to full compensation, yet seeks to encourage prompt resolution of wage disputes short of litigation, is fully consistent with the constitutional right and the grant of authority to the legislature to pass legislation implementing that right." (128) The key issue for the Resnick Court was whether upholding the implementing legislation would "contradict any command or grant in the Constitution," (129) and the court found that it would not. (130)

The Resnick Court further discounted Throw's reliance on the Amendment's language that it was self-executing as a reason that parallel causes of action exist based on the long-standing modern presumption in Florida that constitutional provisions are self-executing. (131) This presumption exists '"because in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people[,]'" merely by failing to enact implementing legislation, (132) In fact, the Florida Supreme Court pointed out 50 years ago in Gray, which the Resnick Court quoted, "[t]he fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing." (133) Judge Marra concluded that "Florida law has long recognized both the presumption of self-execution for constitutional provisions and the legislature's prerogative in passing implementing legislation for such amendments." (134)

In sum, regarding the enforceability of the notice provision in order to file a claim under either the Amendment or the FMWA, the Resniek Court concluded that "[section] 448.1 10(6) is binding and enforceable" because "the Florida Legislature could constitutionally create implementing legislation under Article X, Section 24, and because the specific implementing legislation passed ... does not prevent an individual from enforcing his rights under the Florida Constitution...." (135) The court then dismissed Mr. Resnick's claim under both the Amendment and FMWA for failure to give his former employer notice as the FMWA requires. (136)

IV. ANALYSIS

A. FAILURE TO DISCUSS THE NOTICE PROVISION AS VALID IMPLEMENTING LEGISLATION

Notably absent in the Throw decision and sparse in the Resnick decision are citations to other cases where a court determined whether specific implementing statutory language was acceptable when a constitutional amendment either implicitly or explicitly allowed for implementing legislation. (137) As the Throw Court did correctly state, "the Constitution cannot be modified, amended or repealed by legislative enactments, executive usurpation, or judicial interpretation, except by amendment." (138) However, as mentioned earlier, this merely begs the question as to whether adding this specific notice provision impermissibly modifies or amends the Amendment.

The Resnick opinion only names one case in particular, and it was to distinguish the case from that of the FMWA notice provision. (139) In that case, Notami Hosp. of Fla., Inc. v. Bowen, (140) Florida's First District Court of Appeal ruled a Florida statute unconstitutional on the basis that it "limited certain rights that had been expressly granted by the Constitution." (141) Specifically noted by the Resnick Court, "the Constitutional grant[,] [Amendment 7 to the Florida Constitution,] was retroactive and allowed an individual access to medical records generated at any time, but [the statute at issue,] Fla. Stat. [section] 381.028(5)[,] limited an individual's access to records generated only after a certain date. Because the statute and the constitution were in direct conflict, the court held the statute unconstitutional." (142)

Judge Marra declared the Notami case to "not [be] comparable" to the scenario in Resnick. (143) Given the striking difference between the legislation at issue, it is fairly clear the Notami scenario stopped the constitutional amendment from providing the citizenry with the full extent of the rights granted by the constitutional amendment. That statute specifically restricted the ability of citizens to access medical records when the amendment was self-executing and likely allowed for it. (144) But, unlike as recognized by the Throw Court in regards to the FMWA's notice provision, (145) it was not really a close question in Notami. (146)

Further research reveals additional telling cases regarding acceptable implementing legislation versus implementing legislation that surpasses the constitutional limit. (147) For example, in Sparkman v. State ex rel. Scott, (148) the Florida Supreme Court examined whether a statutory residence requirement acting as a condition precedent to Florida's homestead exemption (149) from taking effect for one year--far more similar to the notice requirement than the statute in Notami and Kroll--was unconstitutional. (150) The Florida Supreme Court framed the issue in Sparkman as follows:
 [W]hether the fixing in the statute of the residential requirement
 of one year as a condition precedent to the right of an owner to
 claim homestead exemption is within the authority granted to the
 Legislature by the last sentence of Section 7, Article X of the
 Constitution; i.e. to 'prescribe appropriate and reasonable laws
 regulating the manner of establishing the right to said exemption';
 or is an unlawful attempt by the Legislature to alter, contract, or
 enlarge Section 7, Article X, by legislative enactment, contrary to
 the express pronouncements of this court that 'Express or implied
 provisions of the Constitution cannot be altered, contracted or
 enlarged by legislative enactments.' (151)


As the court decided this case in 1952, about 55 years before the Throw and Resnick cases were decided, (152) it appears the inquiry as to the legislature surpassing its power through implementing legislation is a common one.

While the Sparkman case is almost 60 years old at this point, its analysis is essentially the same as that of Judge Marra in the Resnick decision. (153) Chief Justice Sebring considered the "practical operation and effect" of the statute limiting the homestead exemption's applicability to owners of their property for one year in order to determine this case. (154) The court found that it could not be "seriously questioned" that limiting the applicability of homestead exemption rights to homeowners who owned their property for at least one year violated the constitution when the constitutional language contained no such limitation. (155) The court was most concerned in Sparkman that the "class or group entitled to homestead exemption under the constitution, and the class or group entitled to such right or privilege under the constitution as attempted to be restricted by legislative enactment, are quite materially different." (156) And it is easy to see the difference between the protected classes with and without the statute. (157) Without the statute, any resident of a home in Florida could exercise their rights under the homestead exemption. (158) However, with the statute in place, only those who were "legal residents of the State for a period of one year prior to making application for homestead exemption" were protected. (159)

Notably, no such distinction could be made in the case of the FMWA notice provision. (160) Specifically, in the case of the homestead exemption statute, people who had not resided in Florida for one year were permanently stripped of their rights under the constitutional provision. (161) However, as Judge Marra found, unlike that condition precedent to being protected by the constitution, the notice provision under the FMWA "does not prevent an individual from enforcing his rights under the Florida Constitution...." (162) The Resnick decision is the only opinion to date to have analyzed the reasons why such a condition precedent to filing suit--in its "practical operation and effect"--did not prevent the enforcement of the rights granted by the Amendment. (163)

Frankly, it seems to be a simple analysis in both Sparkman and Resnick, but the analysis does not seem to ever have actually been expressly made by the Throw Court. (164) The Resnick opinion addresses the issue that a citizen would lose protections if the notice provision were given effect (165) but, unlike the residents in Sparkman who could not claim the homestead exemption for one year despite the constitution's language, (166) determines that there are adequate safeguards put in place to protect the rights of both the workers and the employers. (167)

The employers are an important segment of society that the Amendment sought to protect, as is evidenced by their inclusion in the policy statement at the start of the Amendment. (168) They are so protected because "[t]he statutory [notice] provision merely requires that the employer be notified of the worker's claim so the matter can be resolved within a relatively short period of time...." (169) Litigation is expensive and puts a strain on any company's model. (170) Harming employers only reduces assets that the employers have to pay to employees or reinvest in positive portions of the economy. This vicious cycle only repeats itself if unchecked.

The court in Resnick also recognized that "[t]he worker's rights are fully protected during the statutory time period by tolling the running of the statute of limitations." (171) This equitable tolling provision is key because it thwarts a potential bad-actor employer from attempting to circumvent the statute's requirements by preserving the employee's constitutional rights during what amounts to nothing more than an informal mediation period. (172) Thus, it is fairly evident that the constitutional violation in Sparkman was not a matter of a close question as in the case of the FMWA's notice provision, and possibly indicates that in comparison the FMWA's notice provision would likely be determined to be constitutional by the Florida Supreme Court.

Another telling case, although far less obviously related to the issues swirling around the FMWA, is Bain v. State. (173) In Bain, the Second District Court of Appeal of Florida examined the extent to which the Florida legislature could impose conditions upon the constitutionally preserved right to appeal final orders of trial courts in criminal cases. (174)

Interestingly, the Second District Court of Appeal expressly disagreed with the precedent set by the fairly liberal Florida Supreme Court determination that, while all agree "[t]he Florida Constitution grants [Florida's] citizens the right to appeal, and confers upon the appellate courts jurisdiction to review, all final orders of trial courts," (175) the Florida Supreme Court has determined that "the legislature may impose reasonable conditions on that right." (176)

One of the threshold issues in the Bain case was whether the limitations of the Criminal Appeal Reform Act, which limited the right to appeal to issues "properly preserved or, if not properly preserved, would constitute fundamental error." (177) The Second District was bound by the Florida Supreme Court's determination that this limitation did not violate the constitution, but still discussed that it disagreed with the determination given the unqualified right under the constitution to appeal. (178) In fact, the Second District seemed concerned that the Amendments' opinion "viewed the [Criminal Appeal Reform] Act as jurisdictional; hence, the court's discussion of the constitutional right to appeal final orders, and the legislature's authority to impose conditions on that right, in the context of the Act." (179)

Considering the jurisdictional nature in which the FMWA's notice provision was applied in the Resnick case, where the court dismissed the FMWA claim pursuant to Federal Rule of Civil Procedure 12(b)(6), (180) the Bain and Amendments discussions regarding the constitutionality of the Criminal Appeal Reform Act underscores the weakness of the argument that the FMWA's mere notice prerequisite to filing suit violates the constitution. Unlike the issues in the Sparkman, Bain, Amendments, and Notami cases, the deprivation of the constitutional right caused by the FMWA's implementing legislation is not permanent. (181)

In fact, in the Resnick case, the plaintiff's FMWA claim was dismissed so that the plaintiff could give his former employer notice of his intent to sue for unpaid minimum wages under the Amendment and the FMWA. (182) Subsequently, plaintiff filed an amended complaint after the parties apparently failed to resolve the FMWA dispute within the statutorily allotted 15 days. (183) This is the precise point which differentiates the FMWA's notice provision from the Sparkman, Bain, Amendments, and Notami cases, and is the clearest support for the proposition that the FMWA's notice provision is constitutional.

B. THE EXTENT OF THE RIGHT TO CREATE A SELF-EXECUTING STATUTE SUBJECT TO REASONABLE STATUTORY REGULATION THROUGH IMPLEMENTING LEGISLATION

The general rule is that "[t]he fact that a constitutional guarantee of rights is self-executing does not prevent the legislature from enacting legislation to facilitate the exercise of the constitutional privileges and the enforcement of these protective rights." (184) Such is the case here, particularly since the right to enact such legislation is specifically granted in the same constitutional provision stating it is self-executing. (185)

The Florida Supreme Court specifically found this general rule to apply in Florida courts in Gray v. Bryant, decided in 1960. (186) In Gray, the Supreme Court first examined what makes a constitutional provision self-executing. (187) The court determined:
 [t]he basic guide, or test, in determining whether a constitutional
 provision should be construed to be self-executing, or not
 self-executing, is whether or not the provision lays down a
 sufficient rule by means of which the right or purpose which it
 gives or is intended to accomplish may be determined, enjoyed, or
 protected without the aid of legislative enactment. (188)


Here, not only does the Amendment specifically state that it is self-executing, (189) and the presumption under Florida law is that it is self-executing, (190) but it most likely meets this test as it is highly detailed.

But the most interesting part of the Gray analysis is when the Supreme Court, relying on New York law, clearly states that "It]he fact that the right granted by the [constitutional] provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing." (191) Here, though, we have the opposite scenario, as the Amendment specifically allows for the legislature to define those self-executing rights. (192)

Why include the self-executing language but allow the legislature to reasonably define it? The Illinois Supreme Court, in Baker v. Miller, (193) provides the clearest example when explaining the reason; namely in order "to avoid the effects of Dorsey v. Stuyvesant Town Corp.," (194) which held "that a general civil rights provision in New York's constitution did not outlaw racial discrimination in housing in the absence of legislative action." (195) As the Baker court realized, (196) constitutional provisions like the one discussed in this article are merely a safeguard, but not an end in themselves.

But what is the effect of the self-executing constitutional provision when the constitution also allows for implementing legislation? In the Throw case, the plaintiff essentially took the position that dual causes of action were created--one under the constitution itself and one under the implementing legislation. (197) However, as the Baker and Resnick Courts closely examined with regard to significantly different statutes,
 Plaintiff's argument that the drafters intended that a plaintiff be
 able to pursue a remedy directly under [the constitutional
 provision at issue] is not wholly incorrect. The self-executing
 provision is clearly an attempt to defeat any claim of
 unenforceability of [those constitutional] rights. However, we
 believe that the provision is operational only in the absence of
 implementing legislation--where 'the legislature has not set up any
 procedure.' (198)


Thus, the careful analysis of both of these courts clearly rejects that of the Throw Court. (199)

In Baker, Cathy Baker was a former employee of the defendant restaurant. (200) Baker sought damages for employment discrimination and attempted to bring a direct action under the Illinois constitutional provision (201) with disregard for the "reasonable exemptions" created by statute pursuant to the express language of the constitutional provision. (202) As the Baker court noted, the constitutional provision was purposefully self-executing, but the clause immediately following this self-executing provision was "an express grant of authority empowering the legislature to 'establish reasonable exemptions' relating to the rights guaranteed." (203) This provision is extremely similar to the constitutional language used to support the creation of the FMWA's notice provision. (204)

Most importantly, though, the Baker court notes that "where the [statute] provides coverage, it is the exclusive remedy for" the rights created by the constitutional provision and a private cause of action can no longer be brought directly under the constitution. (205) The Resnick decision adopts an approach that reaches the identical result--regardless of whether the claim is brought under the statute or the constitution--it must comply with the implementing legislation where applicable. (206) And similar to the language in Baker, the FMWA states that it is the exclusive remedy for violations of the Amendment. (207)

Again, Baker wrestled with the same issues as Resnick, as the Baker Court did note that the drafters of the legislation "made it clear ... that any legislative exemption must be reasonable and could not undermine the substance of the right to freedom from discrimination." (208) Similarly, Judge Marra, in Resnick, analyzed whether the substance of the right to receive a minimum wage would be limited by the implementing legislation, but he determined it did not. (209)

C. METHOD OF INTERPRETATION BASED ON THE AMENDMENT AND STATUTE

How should the FMWA and the Amendment be interpreted in future cases? It is one of the most fundamental concepts of constitutional interpretation upon which the Florida Supreme Court relied when it issued its decision in Thomas v. State ex rel. Cobb, (210) in which it stated:
 We can only construe the [Florida] Constitution as it is and not as
 we might like it to be. Every provision of it was inserted with a
 definite purpose and all sections and provisions of it must be
 construed together, that is, in pari materia, in order to determine
 its meaning, effect, restraints, and prohibitions. (211)


The Court then referred to a quotation made in many of its previous opinions to drive the point home: The purpose of the people in adopting the Constitution should be deduced from the Constitution as an entirety. Therefore, in construing and applying the provisions of the Constitution, such provisions should be considered, not separately, but in co-ordination with all other provisions. (212)

Considering that, according to the Supreme Court, each provision of the Amendment and all of its provisions must be considered together, it logically follows that not only should practitioners accept that while the Amendment is undoubtedly self-executing, reasonable implementing legislation was specifically anticipated and allowed. (213) Further, reading the statement of purpose together with these provisions--no one of which should be read alone--the classes specifically sought to be protected by the Amendment includes employers. (214)

Regarding the statute and implementing legislation, Florida courts "are obliged to construe a statute in such a way as to render it constitutional if there is any reasonable basis for doing so." (215) Further, in determining the application and meaning of the language in the statute, the Florida Supreme Court recently reaffirmed that the state's courts
 are required to give effect to every word, phrase, sentence, and
 part of the statute, if possible, and words in a statute should not
 be construed as mere surplusage. Moreover, a basic rule of
 statutory construction provides that the Legislature does not
 intend to enact useless provisions, and courts should avoid
 readings that would render part of the statute meaningless. (216)


Similar to the Baker case, in Throw, a major issue was whether the creation of the implementing legislation created an exclusive remedy for violations of the constitutional protection which is expressly self-executing. (217) In Baker, the court determined the statute created an exclusive remedy. (218) In Throw, the court appears to assume, without discussion, that causes of action exist for the identical group of people under both the Amendment and the FMWA. (219) But in Resnick, the court determined anyone seeking to recover under the Amendment or the FMWA had to adhere to the prerequisite created through the statute pursuant to the power granted by the Amendment. (220)

So, looking at the Amendment and Statute in a vacuum, what is the best view regarding the constitutionality of the FMWA's notice provision? It is a complete and literal interpretation of the Amendment and statute when viewed as a whole.

D. THE BEST VIEW--A COMPLETE AND LITERAL INTERPRETATION

Unless a court determines the FMWA's notice provision to be unconstitutional--which neither the Throw nor Resniek Courts seemed inclined to do given that it is a close question--the courts should respect all of the language in the Amendment and statute, not just what is convenient or seems more equitable at the time.

Specifically, the Amendment itself answers the question regarding whether the notice provision is authorized. (221) The public policy section opens the Amendment, and specifically notes that employers are a group targeted for protection through implementation of the Amendment, along with employees and the general taxpaying public. (222)

Subsection (f) of the Amendment then names some specific protections for employees, but omits any specifics to protect employers from abuse. (223) This did not concern the legislature because it allowed for the creation of laws "appropriate for implementing this legislation." (224) As explained earlier in this article, it is likely the drafters of the Amendment intended to provide the legislature the ability to create procedures through which civil claims under the Amendment would be brought. (225) The purpose of bringing a civil claim is to avoid employers being unfairly bombarded with lawsuits, which would directly contradict the public policy purpose of protecting employers, together with employees and the taxpayers, by creating a new problem for them.

Reading the FMWA together with the Amendment as the Florida Supreme Court has mandated, and remembering that the courts are required to "avoid readings that would render part of the statute meaningless," (226) the notice provision in section 448.1 10(6) of the Florida Statutes does not impermissibly eliminate any rights, but merely provides employers a chance to resolve disputes before the serious disruption of their business. (227) If the businesses are harmed by an excess of litigation to the point that they close or are unable to afford to conduct business, the minimum wage will no longer be a pressing issue for any of the now unemployed workers. And the other public policy named in the Amendment--to keep workers from requiring public support (228)--will also be frustrated.

Further, interpreting there to still be a cause of action directly under the Amendment which does not require compliance with the FMWA's notice provision ignores: (1) the Amendment's express language that implementing legislation was allowed; (229) (2) the express language of section 448.110(10); namely, that the FMWA is the exclusive remedy for violations of the Amendment; (230) and (3) the Florida Supreme Court's mandate that readings which render part of a statute meaningless should be avoided. (231) Allowing a cause of action to proceed under the Amendment without meeting the notice requirement under the FMWA renders section 448.110(6) and 448.110(10) meaningless without stating they are not enforceable. This flies in the face of constitutional and statutory interpretation under Florida law and should not be done by the courts. Thus, in short, the best view is to require potential litigants to meet the notice provision of section 448.110(6), regardless of whether they make a claim under either the Amendment or the FMWA.

V. AREAS OF ADDITIONAL CONCERN (232)

There are additional areas of concern over which there has yet to be any litigation, however, they are ripe for litigation in the near future. (233) Among the most striking are issues regarding the availability of class litigation under the FMWA and the application of Erie principles in order to essentially preempt parts of the FMWA when such claims are brought in federal court under diversity jurisdiction.

A. CLASS ACTION CONCERNS

Both the Amendment and the FMWA specify that actions for the failure to pay minimum wages "may be brought as a class action pursuant to [Florida Rule of Civil Procedure] 1.220." (234) However, as explained below, the application of the notice provision in subsection (6) of the FMWA appears to be an almost impenetrable bar to maintaining class actions under the FMWA for the failure to pay minimum wages. (235) This class action provision of the Amendment, codified in [section] 448.110(9) of the Florida Statutes, thus provides a potential counterargument to the constitutionality of the notice provision based on the application of the same rules of interpretation explained above. (236)

Similar to its federal counterpart, (237) Rule 1.220 of the Florida Rules of Civil Procedure ("Rule 1.220") requires: (1) numerosity of class members making it impracticable to join each member; (2) a showing that the claim raises common questions of law or fact among the class members; (3) typicality of the claim among class members, and (4) a showing that the adequacy of representation. (238) Further, the court must also determine that one of the additional three circumstances specified in Rule 1.220(b) be satisfied in order for class designation to be appropriate. (239)

The first circumstance is where the:
 prosecution of separate claims or defenses by or against the
 individual members of the class would create a risk of either
 inconsistent or varying adjudications concerning the individual
 members of the class that would establish incompatible standards of
 conduct for the party opposing the class or adjudications
 concerning the individual members of the class that would, as a
 practical matter, be dispositive of the interest of other members
 of the class who are not parties to the adjudications or
 substantially impair or impede the ability of other members of the
 class who are not parties to the adjudications to protect their
 interests. (240)


The second circumstance is where "the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate." (241)

The final circumstance is where
 the claim or defense is not maintainable under either of the above
 conditions, but the questions of law or fact common to the claim or
 defense of the representative party and the claim or defense of
 each member of the class predominate over any question of law or
 fact affecting only individual members of the class, and class
 representation is superior to other available methods for the fair
 and efficient adjudication of the controversy. (242)


In application, because the individual class members have not yet provided their employer with the requisite notice as required by the statute, there is a possibility that the application of the notice provision limits the ability to successfully create a class action under the Florida Minimum Wage Act. Specifically, it is highly notable that "class representation is not 'superior' to individual suits for fair and efficient adjudication of a controversy when significant individual issues exist." (243) Such an overwhelming issue is whether the prerequisite to recover from an employer by the individual class member has been exhausted as required by statute. To the extent that such an argument is made by an employer's defense firm, the logical counterargument would be that such interpretation unconstitutionally inhibits the constitutionally protected right to institute class litigation under the Amendment.

Further, the applicability of the notice provision provides employers opportunity to essentially pay any reasonable amount to a single potential plaintiff in a FMWA case in order to avoid class litigation, particularly where they suspect they have committed a widespread violation. (244) Although unethical, employee's side lawyers could essentially blackmail a company with the threat of litigation unless an essentially unreasonable or unsustainable demand is paid. While succumbing to such threats is unadvisable, it does create an escape route for the employer who seeks to avoid the potential for class litigation.

B. ERIE CONCERNS

There is an additional issue apparently not addressed in either the Throw or Resnick cases regarding whether the FMWA's notice provision constitutes a pre-suit procedural requirement in fact barred to the extent that a federal court is sitting in diversity. (245)

Specifically, as set forth in Braddock v. Orlando Regional Health Care System, Inc., (246) there is a possibility the FMWA's notice provision does not apply when suit is brought under only the FMWA in federal court on diversity grounds. (247) Braddock was a medical malpractice case which was removed to federal court on diversity grounds. (248) Plaintiff admitted she did not comply with the pre-suit requirements under Florida's medical malpractice statute, and Defendants sought to dismiss as a result. (249) But the court did not dismiss. (250) Instead, the court determined the presuit requirements of the statute were procedural in nature, as opposed to substantive, and determined that based on the Erie Doctrine, the pre-suit requirements should not be applied. (251) Specifically, the court determined that the pre-suit requirements conflicted with Federal Rules of Civil Procedure 3, 4, and 8(a), and the federal court was required to "abide by the procedural rules established by Congress." (252)

However, in a very recent decision, the Northern District of Florida reached a determination directly conflicting with the Braddock case. (253) In that case, Curry v. High Springs Family Practice Center Inc., (254) the court determined that the pre-suit notice provision was in fact substantive and, therefore, the federal court was obligated to apply it. (255) Unlike Braddock, the court did not examine Florida law, but looked to the Erie analysis done by a Mississippi federal court with relation to that state's medical malpractice pre-suit notice requirement. (256)

While application of the FMWA's notice requirement has yet to be fully litigated on Erie grounds, and the only case directly on point in the FMWA context determined the notice provision to apply in federal court, "states have created specialized hurdles for filing particular causes of action, as Florida has with regard to medical malpractice suits, the Eleventh Circuit has consistently favored the federal rules." (257) Given the nature of the FMWA's notice requirement, and the necessary pleading that it entails, (258) practitioners should at least be wary about the implications of the Braddock case and the application of the Erie Doctrine in the FMWA context.

VI. CONCLUSION

Litigation under the FMWA has yet to develop, but it will not always remain dormant. The divergent Throw and Resnick opinions are the perfect examples of potential scenarios in which this litigation is presently ripening. However, until such time as the Florida Supreme Court expressly addresses the issues such as those discussed in this article and determine the constitutionality of the notice and exclusive remedy provisions under the FMWA, the courts should honor them, as was done in the Resnick case. Doing otherwise dishonors the judicial process and is the true constitutional violation.

CHRISTOPHER M. PARDO, ESQ. (1)

(1.) The author graduated valedictorian from St. Thomas University School of Law in 2007, where he was an editor of the St. Thomas Law Review. He received a Bachelor of Arts in English Literature in 2004 from Boston College. Currently, he is a labor and employment litigator at Constangy, Brooks & Smith LLP's office in Boston, Massachusetts, specializing in wage-and-hour law.

(2.) See FLA. CONST. art. X, [section] 24.

(3.) See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. June 30, 2006); Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Jan. 8, 2008). In fact, a brief review of the most recent case law in this area--discussed herein--indicates that not only is litigation in this area rapidly increasing, but the two seminal cases most carefully analyzed in this article are the lynchpin of every analysis relating to the constitutionality of the Florida Minimum Wage Amendment's implementing legislation. See Throw, 2006 WL 1823783; Resnick, 2008 WL 113665.

(4.) FLA. CONST. art. X, [section] 24(f).

(5.) Notably, in one of the most recent written opinions directly addressing this topic, Judge Presnell of the Middle District of Florida declined to exercise supplemental jurisdiction over the claim made under the Florida Minimum Wage Act essentially on the grounds that the divergent Throw and Resnick decisions created such confusion in the courts that exercising supplemental jurisdiction was inappropriate. See Kwasnik v. Charlee Family Care Servs. of Cent. Fla., Inc., No. 6:08-cv-926-Orl-31KRS, 2009 WL 160789, at *6 (June 9, 2009).

(6.) See FLA. STAT. [section] 448.110 (2005).

(7.) See, e.g., Throw, 2006 WL 1823783, at *2; [section] 448.110.

(8.) See [section] 448.110(6)(a).

(9.) [section] 448.110(6)(b).

(10.) See Throw, 2006 WL 1823783, at *1; Resnick, 2008 WL 113665, at *1.

(11.) See Throw, 2006 WL 1823783, at *2 (stating that "[t]hrough the enactment of Fla[.] Stat. [section] 448.10, the Legislature attempts to add a requirement that must be fulfilled before an aggrieved party may exercise a right previously granted by the Constitution. This they cannot do."). But see Resnick, 2008 WL 113665, at *3 (stating that "[b]ecause the Florida Legislature could constitutionally create implementing legislation under Article X, Section 24, and because the specific implementing legislation passed ...does not prevent an individual from enforcing his rights under the Florida Constitution, the Court holds that [section] 448.110(6) is binding and enforceable ....").

(12.) See discussion infra Part D and accompanying notes.

(13.) See, e.g., Thomas v. State ex rel. Cobb, 58 So. 2d 173, 178 (Fla. 1952).

(14.) See Aldana v. Holub, 381 So. 2d 231, 237-38 (Fla. 1980).

(15.) See discussion infra Part D and accompanying notes.

(16.) See Robin Greiwe Midulla, Florida's New Minimum Wage Provision: An Overview of the Amendment to the Florida Constitution, 79 FLA. B.J. 72, 72 (2005).

(17.) See id. at 72.

(18.) See FLA. CONST. art. X, [section] 24.

(19.) See infra notes 20-57 and accompanying text.

(20.) See FLA. CONST. art. X, [section] 24(a).

(21.) Id.

(22.) See id. The Florida Statutes contain a separate safeguard for employees, which notify them of their rights under the Amendment and Florida Minimum Wage Act. See FLA. STAT. [section] 448.109 (2007). Specifically, this additional statute requires employers to prominently post a notice of right to the Florida minimum wage. See id. [section] 448.109(2).

(23.) See FLA. CONST. art. X, [section] 24(a). According to the Amendment, minimum wage benefits taxpaying citizens by reducing the number of individuals who must rely on taxpayer funded public services. See id.

(24.) See infra Part III.

(25.) See infra Part IV.

(26.) FLA. CONST. art. X, [section] 24(b). Section 24(b) of the Amendment states: "[a]s used in this amendment, the terms 'Employer,' 'Employee' and 'Wage' shall have the meanings established under the federal Fair Labor Standards Act (FLSA) and its implementing regulations." Id.

(27.) See id. art. X, [section] 24(c). Section 24(c) of the Amendment states:
 Employers shall pay Employees Wages no less than the Minimum Wage
 for all hours worked in Florida. Six months after enactment, the
 Minimum Wage shall be established at an hourly rate of $6.15. On
 September 30th of that year and on each following September 30th,
 the state Agency for Workforce Innovation shall calculate an
 adjusted Minimum Wage rate by increasing the current Minimum Wage
 rate by the rate of inflation during the twelve months prior to
 each September 1st using the consumer price index for urban wage
 earners and clerical workers, CPI-W, or a successor index as
 calculated by the United States Department of Labor. Each adjusted
 Minimum Wage rate calculated shall be published and take effect on
 the following January 1st. For tipped Employees meeting eligibility
 requirements for the tip credit under the FLSA, Employers may
 credit towards satisfaction of the Minimum Wage tips up to the
 amount of the allowable FLSA tip credit in 2003.


Id.

(28.) See id. art. X, [section] 24(d). Section 24(d) of the Amendment states:
 It shall be unlawful for an Employer or any other party to
 discriminate in any manner or take adverse action against any
 person in retaliation for exercising rights protected under this
 amendment. Rights protected under this amendment include, but are
 not limited to, the right to file a complaint or inform any person
 about any party's alleged noncompliance with this amendment, and
 the fight to inform any person of his or her potential rights under
 this amendment and to assist him or her in asserting such rights.


Id.

(29.) Id. art. X, [section] 24(e).

(30.) Id. In its entirety, article 10, section 25(e) of the Florida Constitution states:
 Persons aggrieved by a violation of this amendment may bring a
 civil action in a court of competent jurisdiction against an
 Employer or person violating this amendment and, upon prevailing,
 shall recover the full amount of any back wages unlawfully withheld
 plus the same amount as liquidated damages, and shall be awarded
 reasonable attorney's fees and costs. In addition, they shall be
 entitled to such legal or equitable relief as may be appropriate to
 remedy the violation including, without limitation, reinstatement
 in employment and/or injunctive relief. Any Employer or other
 person found liable for willfully violating this amendment shall
 also be subject to a fine payable to the state in the amount of
 $1000.00 for each violation. The state attorney general or other
 official designated by the state legislature may also bring a civil
 action to enforce this amendment. Actions to enforce this amendment
 shall be subject to a statute of limitations of four years or, in
 the case of willful violations, five years. Such actions may be
 brought as a class action pursuant to Rule 1.220 of the Florida
 Rules of Civil Procedure.


Id.

(31.) Id.

(32.) FLA. CONST. art. X, [section] 24(e).

(33.) Id.

(34.) See id.; see also FLA. R. CIV. P. 1.220 (regulating class actions).

(35.) FLA. CONST. art. X, [section] 24(e). This constitutional statute of limitations was also codified in the statute of limitations section of the Florida Statutes. See FLA. STAT. [section] 95.1 l(2)(d), (3)(q) (2006).

(36.) FLA. CONST. art. X, [section] 24(f).

(37.) Fair Labor Standards Act, 29 U.S.C. [section][section] 201-219 (2007).

(38.) Compare FLA. CONST. art. X, [section] 24, with 29 U.S.C. [section] 201.

(39.) Compare FLA. CONST. art. X, [section] 24(e), with 29 U.S.C. [section] 255(a).

(40.) Compare FLA. CONST. art. X, [section] 24(e), with 29 U.S.C. [section] 216(b).

(41.) See, e.g., Ellis v. Edward D. Jones & Co., 527 F. Supp. 2d 439, 444-45 (W.D. Pa. 2007). The Ellis Court deftly recognized the advantages to plaintiffs when class certification was allowed instead of applying the opt-in method:
 The most obvious effect of the choice of rule is on the size of the
 resulting classes. The opt-in rate in a FLSA collective action not
 backed by a union is generally between 15 and 30 percent. Although
 a variety of reasons for failure to opt in have been posited, the
 strongest, at least among comparatively well-educated
 English-speaking parties, is likely "inertia": the view that the
 notice received in the mail is just another piece of junk that the
 recipient has neither the time nor the interest to read, let alone
 to act on.

 The same inertia that promotes low response rates in opt-in
 collective actions fosters low opt-out rates in class actions
 maintained under FED. R. CIV. P. 23(b)(3). As a result, for similar
 causes of action, Rule 23 classes are much larger than the
 corresponding [section] 216(b) collective action groups; they may
 even be "exponentially greater" and "number[] in the millions."


Id. at 444-45 (internal citations omitted).

(42.) See 29 U.S.C. [section] 216(b). While the ability to bring state and FLSA claims at the same time has been challenged in many courts, including Florida, it is also an undecided point of law. See, e.g., Mesa v. Ag-Mart Produce, Inc., No. 2:07-cv-47-FtM-34DNF, 2008 U.S. Dist. LEXIS 54958, at *1 n. 3 (M.D. Fla. July 18, 2008). However, it is not discussed in full in this article. In certain circumstances, there are theoretical incompatibilities between bringing claims under the two methods in the same action. See id. at *1 (acknowledging the lack of clarity on this issue, even among the cases that had considered it specifically in the FMWA context within the Southern District of Florida). As noted in Mesa, this argument also arose in the Resnick litigation. See id. at *8; Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *4 (S.D. Fla. Jan. 8, 2008). This article assumes there is no conflict between the Amendment and the FLSA, although such an assumption is debatable at best.

(43.) Compare Fair Labor Standards Act, 29 U.S.C. [section] 216(b), with FLA. CONST. art. X, [section] 24(e).

(44.) See FLA. STAT. [section] 448.110(8) (2005).

(45.) FLA. CONST. art. X, [section] 24(f).

(46.) See id.

(47.) See id.

(48.) See id

(49.) Id.

(50.) See FLA. CONST. art. X, [section] 24(a).

(51.) See id. art. X, [section] 24(f).

(52.) Id. (emphasis added).

(53.) See, e.g., Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. June 30, 2006); Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Jan. 8, 2008).

(54.) See FLA. CONST. art. X, [section] 24(f).

(55.) Id.

(56.) Id.

(57.) Id.

(58.) FLA. STAT. [section] 448.110 (2005). In fact, in section 448.110(1), the legislature notes that the section could be called the "Florida Minimum Wage Act." Id.

(59.) See, e.g., Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Jan. 8, 2008).

(60.) See, e.g., Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. June 30, 2006).

(61.) See id.

(62.) See infra notes 63-84 and accompanying text.

(63.) [section] 448.110(2).

(64.) See generally FLA. COM. & CONSUMER SERV. COMM., S. STAFF ANALYSIS AND ECON. IMPACT STATEMENT, S.B. 18 (2005) [hereinafter ECON. IMPACT STATEMENT].

(65.) See id. at 6-7.

(66.) See id. at 9.

(67.) Id. at 7.

(68.) Id.

(69.) See discussion infra note 220 and accompanying text.

(70.) FLA. STAY. [section] 448.110(6)(a) (2005).

(71.) See id. [section] 448.110(5). Employers are prohibited from retaliating or taking adverse action against any person for exercising their rights under the Florida Minimum Wage Act. See id.

(72.) [section] 448.110(6)(a).

(73.) [section] 448.110(6)(b).

(74.) See [section] 448.110(6). This provision mandates the person aggrieved notify his employer, in writing, of his intent to bring the action. See id. After receiving notification the employer is allotted fifteen days to resolve the claim, during which time the statute of limitations is tolled. See [section] 448.110(6)(b). Following this fifteen day period, if the claim is not resolved to the satisfaction of the aggrieved a claim may be brought forward consistent with the contents of the written notice. See id. Although certainly unofficial, the Florida Pleading and Practice Forms do have a form notice which, in the eyes of the drafters of these Florida forms, complies with the notice requirements. See 11 FLA. PL. & PR. FORMS [section] 85:4. However, it is important to note that there could be future disputes about what constitutes fair notice when employees may make the vaguest of allegations to try and get to court and the employers may challenge that notice as inadequate. See [section] 448.110(6)(b). As explained under subsection (6)(b), it is mandated that the terms of the claim "must be consistent with the contents of the notice." Id.

(75.) See, e.g., Ouellette v. Wal-Mart Stores, Inc., 888 So. 2d 90, 91 (Fla. 1st Dist. Ct. App. 2004). The plaintiff's bar seemed to prevail in 2004 when a class action suit brought under the ambit of section 448 of the Florida Statutes was certified despite the zealous argument that the individualized nature of the claims barred class certification. See id.

(76.) See infra notes 79-81 and accompanying text.

(77.) See FLA. STAY. [section] 768.79 (1997). Although there are various details not relevant to this article, the statute essentially mandates that if an offer of judgment is made by defendant, and, ultimately, "the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, [then] the court shall set off such costs and attorney's fees against the award." Id.

(78.) [section] 448.110(6)(d).

(79.) See, e.g., Wal-Mart Stores, 888 So. 2d at 91.

(80.) FED. R. CIV. P. 68(d) ("If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.").

(81.) See supra text accompanying notes 77-81.

(82.) [section] 448.110(10).

(83.) [section] 448.110(6)(a).

(84.) See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2-3 (M.D. Fla. June 30, 2006).

(85.) See, e.g., Ramirez v. Martinez, No. 08-21863-CIV, 2009 WL 199786 (S.D. Fla. Jan. 23, 2009); Dominguez v. Design by Nature Corp., No. 08-20858-CIV, 2008 WL 4426721 (S.D. Fla. Sept. 25, 2008); see also Curry v. High Springs Family Practice Ctr., No. 1:08-cv-00008-MP-AK, 2008 WL 5157683 (N.D. Fla. Dec. 9, 2008). As of the writing of this article, only a few additional cases have specifically analyzed the constitutionality of the FMWA's notice provision discussed herein. See Ramirez, 2009 WL 199786, at *3-5; Dominguez, 2008 WL 4426721, *1-2. Notably, both are from the Southern District of Florida--the same district court as the Resnick case--and adopt the Resnick analysis finding the notice provision to be constitutional although they acknowledge that the Throw decision--from the Middle District of Florida--expressly disagrees. See Ramirez, 2009 WL 199786, at *4-6 (evaluating the courts' analyses in Resnick and Throw and agreeing with Resnick, particularly because: (1) the implementing legislation "supplements rather than restricts an aggrieved employee's constitutional right to minimum wages[;]" (2) "the 15-day notice does not impose any material or undue burden on plaintiff' but instead "provides a simple, efficient and inexpensive avenue for an employee to voice a grievance to an employer" and "informs an employer of the gravitas of the situation and provides information permitting resolution [before] litigation[;]" (3) "pre-suit notice provisions are common[;]" (4) "the statute incorporates a tolling provision to avoid any statute of limitation issues that may be in fact impair an employee's ability to ultimately seek judicial relief[;]" and (5) this provision does not violate the constitution as drafted--instead "encouraging swift resolution and compliance with the constitutional amendment."); Dominguez, 2008 WL 4426721, at *1-2 (evaluating the courts' analyses in Resnick and Throw and agreeing with Resnick); see also Curry, 2008 WL 5157683, at *8 n.4 (noting the conflict between the Resnick and Throw decisions but declining to rule on the constitutionality of the pre-suit notice provision). Thus, the Throw and Resnick cases remain the center of the universe in this analysis and have essentially led all other cases to adopt one line of reasoning or the other. See Ramirez, 2009 WL 199786, at *4-6; Dominguez, 2008 WL 4426721, at *2. And the Southern District-Middle District split is only growing as a result. See, e.g., Ramirez, No. 2009 WL 199786; Dominguez, 2008 WL 4426721; Curry, 2008 WL 5157683.

(86.) See Ramirez, 2009 WL 199786, at *4-5; Dominguez, 2008 WL 4426721, at *1-3; Curry, 2008 WL 5157683, at *8 n.4.

(87.) Compare Throw, 2006 WL 1823783, at *1-3, with Resnick, 2008 WL 113665, at *1-3.

(88.) See Complaint and Demand for Jury Trial of Plaintiff, Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. Apr. 20, 2006) (No. 06CV00724), 2006 WL 1389087.

(89.) See id.

(90.) See Throw, 2006 WL 1823783, at *1.

(91.) See Defendant's Motion to Dismiss Counts III and IV of Plaintiff's Complaint Pursuant to Rule 12(B)(6) of the Federal Rules of Civil Procedure, Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. May 26, 2006) (No. 8:06-cv-724-T30-TBM), 2006 WL 1747699.

(92.) See id. at *2.

(93.) See, e.g., Memorandum in Opposition to Defendant's Motion to Dismiss at [paragraph] 1, Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. June 6, 06) (No. 8:06-cv-724-T30-TBM); Throw, 2006 WL 1823783, at *1-2 (district court's order).

(94.) See Throw, 2006 WL 1823783, at *2-3.

(95.) See id. at *3.

(96.) Id.

(97.) Id.

(98.) See id. at *2.

(99.) Id.

(100.) Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2 (M.D. Fla. June 30, 2006) (emphasis added).

(101.) Id.

(102.) Id.; see FLA. CONST. art. X, [section] 24(t).

(103.) See Throw, 2006 WL 1823783, at *2.

(104.) See id. (citing Thomas v. State ex rel. Cobb, 58 So. 2d 173 (Fla. 1952)).

(105.) See id. (citing Sparkman v. State ex rel. Scott, 58 So. 2d 432, 432 (Fla. 1952)).

(106.) FLA. CONST. art. X, [section] 24(0.

(107.) Throw, 2006 WL 1823783, at *2 (citing Gray v. Cent. Fla. Lumber Co., 140 So. 2d 320, 323 (Fla. 1932)) (emphasis added).

(108.) Id.

(109.) See id.

(110.) See id.; Notice of Settlement, Throw, 2006 WL 1823783 (M.D. Fla. Nov. 03, 06) (No. 8:06-cv-00724-JSM-TBM).

(111.) Compare Throw, 2006 WL 1823783, at *2, with Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *1 (S.D. Fla. Jan. 8, 2008).

(112.) Resnick, 2008 WL 113665, at *1.

(113.) See id.; see also Complaint at [paragraph][paragraph] 29-31, Resnick v. Oppenheimer & Co., Inc., No. 0780609-CIV, 2008 WL 113665 (S.D. Fla. July 9, 2007) (No. 07-08609-CIV), 2007 U.S. Dist. Ct. Pleadings LEXIS 3673.

(114.) See Defendant's Motion to Dismiss Count II and Memorandum of Law at *1, Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Aug. 27, 2007) (No. 9:07-CV-80609-MARRA/JOHNSON), 2007 WL 2979763.

(115.) Plaintiff's Response to Motion to Dismiss at *1-2, Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Sept. 21, 2007) (No. 07-80609-CIV-MARRA/JOHNSON), 2007 U.S. Dist. Ct. Motions LEXIS 37329.

(116.) Complaint, supra note 113, at *1-2. Interestingly, a careful reading of Mr. Resnick's Complaint exposes an identical typographical error contained in the Throw opinion, which identifies the FMWA as section 448.10 of the Florida Statutes instead of section 448.110. See id. It appears that Mr. Resnick attempted to follow Throw quite closely. See id.

(117.) See Resnick, 2008 WL 113665, at *2 ("Plaintiff asks the Court to declare [section] 48.110(6) [sic] unconstitutional and deny Defendant's motion to dismiss.").

(118.) Id. (citing Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2 (M.D. Fla. June 30, 2006)).

(119.) Id.

(120.) Id. at *3 (citing Holley v. Adams, 238 So. 2d 401,405 (Fla. 1970)).

(121.) See id.

(122.) Id. at *3.

(123.) Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *3 (S.D.

Fla. Jan. 8, 2008) (citing Holley, 238 So. 2d at 405).

(124.) Id.

(125.) Id.

(126.) Id.

(127.) See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2 (M.D. Fla. June 30, 2006).

(128.) Resnick, 2008 WL 113665, at *3 (emphasis added).

(129.) Id.

(130.) See id.

(131.) See id.

(132.) Id. (quoting Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960)).

(133.) Gray, 125 So. 2d at 851; Resnick, 2008 WL 113665, at *3.

(134.) Resnick, 2008 WL 113665, at *3.

(135.) Id.

(136.) See id.

(137.) See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. June 30, 2006); Resnick, 2008 WL 113665. This is different from the analysis provided in the Ramirez case, which adopted Resnick's analysis. See Ramirez v. Martinez, No. 08-21863-CIV, 2009 WL 199786, at *5 (S.D. Fla. Jan. 23, 2009) (listing various pre-suit notice provisions after determining that under Florida law, "pre-suit notice provisions are common."). That point in the Ramirez analysis was not discussed in Resnick at least in part because the crux of the issue is whether the notice provision conflicted with the constitutional provision, not whether notice provisions are valid without any context. See Resnick, 2008 WL 113665, at *3. Essentially, it neither adds nor detracts anything from the analysis.

(138.) Throw, 2006 WL 1823783, at *2 (citing Sparkman v. State ex rel. Scott, 58 So. 2d 431, 432 (Fla. 1952)).

(139.) See Resnick, 2008 WL 113665, at *3 n.1.

(140.) Notami Hosp. of Fla., Inc. v. Bowen, 927 So. 2d 139 (Fla. 1st Dist. Ct. App. 2006).

(141.) Resnick, 2008 WL 113665, at *3 n.1.

(142.) Id. (citing Notami, 927 So. 2d at 143).

(143.) Id.

(144.) See Notami, 927 So. 2d at 143.

(145.) See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2 (M.D. Fla. June 30, 2006).

(146.) See Notami, 927 So. 2d at 143. In North Broward Hosp. Dist. v. Kroll, Florida's Fourth District Court of Appeal found the same statute unconstitutional as in Notami, specifically adopting Notami's analysis regarding the amendment's self-executing nature and retroactivity. See North Broward Hosp. Dist. v. Kroll, 940 So. 2d 1281, 1282-83 (Fla. 4th Dist. Ct. App. 2006).

(147.) See, e.g., Sparkman v. State ex rel. Scott, 58 So. 2d 431 (Fla. 1952); Bain v. State, 730 So. 2d 296 (Fla. 2d Dist. Ct. App. 1999).

(148.) Sparkman, 58 So. 2d431.

(149.) See FLA. CONST. art. VII, [section] 6.

(150.) See Sparkman, 58 So. 2d at 431-32.

(151.) Id. at 432 (citing Amos v. Mathews, 126 So. 2d 208 (Fla. 1930); State ex rel. West v. Butler, 69 So. 2d 771,777 (Fla. 1915)).

(152.) Id. at 431; Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *1 (M.D. Fla. June 30, 2006); Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *1 (S.D. Fla. Jan. 8, 2008).

(153.) Compare Sparkman v. State ex rel. Scott, 58 So. 2d 431, 432 (Fla. 1952), with Resnick, 2008 WL 113665.

(154.) See Sparkman, 58 So. 2d at 432 (citing Gray v. Cent. Fla. Lumber Co., 140 So. 2d 320, 323 (Fla. 1932)).

(155.) Id.

(156.) Id.

(157.) See, e.g., FLA. CONST. art. VII, [section] 6; Sparkman, 58 So. 2d at 432.

(158.) See FLA. CONST. art. VII, [section] 6.

(159.) Sparkman, 58 So. 2d at 432.

(160.) See Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *3 (S.D. Fla. Jan. 8, 2008).

(161.) See Sparkman, 58 So. 2d at 432.

(162.) Resnick, 2008 WL 113665, at *3.

(163.) See id at *2; Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. June 30, 2006).

(164.) See Throw, 2006 WL 1823783.

(165.) See Resniek, 2008 WL 113665, at *3.

(166.) See Sparkman, 58 So. 2d at 432.

(167.) See Resniek, 2008 WL 113665, at *3.

(168.) See FLA. CONST. art. X, [section] 24(a).

(169.) Resnick, 2008 WL 113665, at *3.

(170.) See Kirton v. Fields, 997 So. 2d 349, 363 (Fla. 3d Dist. Ct. App. 2008).

(171.) Resniek, 2008 WL 113665, at *3.

(172.) See id.

(173.) See Bain v. State, 730 So. 2d 296 (Fla. 2d Dist. Ct. App. 1999).

(174.) Id. at 298 300.

(175.) Id. at 298 (noting that in Amendments to the Florida Rules of Appellate Procedure, the Florida Supreme Court receded its earlier decision in State v. Creighton, 469 So. 2d 735 (Fla. 1985)).

(176.) Id. at 300.

(177.) Id. (quoting FLA. STAT. [section] 924.051(3) (2000)).

(178.) Id.

(179.) See Bain, 730 So. 2d at 300.

(180.) See Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *3 (S.D. Fla. Jan. 8, 2008).

(181.) See, e.g., Kwasnik v. Charlee Family Care Serv. of Cent. Fla., Inc., No. 6:08-cv-926-Orl-31KRS, 2009 WL 1607809, at *6 (M.D. Fla. June 9, 2009). The Kwasnick Court identified the constitutional effects of FMWA by summarizing the Resnick decision as follows:
 [T]he district court held that the FMWA did not interfere with the
 state constitutional fight to a minimum wage because the
 constitutional amendment that created the right to a minimum wage
 authorized the legislature to enact legislation to enforce that
 right. In light of this specific grant of authority in the
 amendment, the Resnick court concluded that the pre-suit notice
 requirement did not clearly violate the Florida Constitution.
 Because the Resnick plaintiffs had not provided the statutorily
 required pre-suit notice, the court dismissed their FMWA claims
 without prejudice.


Id.

(182.) See id. at *5.

(183.) See First Amended Complaint, Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Mar. 19, 2008) (No. 07-80609-CIV).

(184.) 16 C.J.S. Constitutional Law [section] 91 (2009) (citing State v. Bachelder, 403 A.2d 754 (Me. 1979)).

(185.) See FLA. CONST. art. X, [section] 24(a).

(186.) See Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960).

(187.) See id.

(188.) Id.

(189.) See FLA. CONST. art. X, [section] 24(f).

(190.) See Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *3 (S.D. Fla. Jan. 8, 2008) (quoting Gray, 125 So. 2d at 851).

(191.) Gray, 125 So. 2d at 851.

(192.) See FLA. CONST. art. X, [section] 24.

(193.) Baker v. Miller, 636 N.E.2d 551 (I11. 1994).

(194.) Id. at 558 (citing Dorsey v. Stuyvesant Town Corp., 87 N.E.2d 541 (N.Y. 1949)).

(195.) Id. (summarizing Dorsey, 87 N.E.2d 541).

(196.) See id.

(197.) See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *1, *3 (M.D. Fla. June 30, 2006).

(198.) Baker, 636 N.E.2d at 558.

(199.) But see Throw, 2006 WL 1823783.

(200.) See Baker, 636 N.E.2d at 552.

(201.) The Illinois Constitution provides:
 All persons shall have the right to be free from discrimination on
 the basis of race, color, creed, national ancestry and sex in the
 hiring and promotion practices of any employer or in the sale or
 rental of property. These rights are enforceable without action by
 the General Assembly, but the General Assembly by law may establish
 reasonable exemptions relating to these rights and provide
 additional remedies for their violation.


ILL. CONST. art. I, [section] 17.

(202.) Baker, 636 N.E.2d at 553.

(203.) Id.

(204.) Compare ILL. CONST. art. I, [section] 24, with FLA. CONST. art. X, [section] 17.

(205.) Baker, 636 N.E.2d at 554 (emphasis added).

(206.) See id.; see also Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *3 (S.D. Fla. Jan. 8, 2008).

(207.) See FLA. STAT. [section] 448.110(10) (2005).

(208.) Baker, 636 N.E.2d at 555.

(209.) See Resnick, 2008 WL 113665, at *2.

(210.) Thomas v. State ex rel. Cobb, 58 So. 2d 173 (Fla. 1952) (en banc).

(211.) Id. at 174 (citing Amos v. Mathews, 126 So. 308, 316 (Fla. 1930)) (emphasis added).

(212.) Id. (internal citations omitted).

(213.) See FLA. CONST. art. X, [section] 24(0.

(214.) Id. art. X, [section] 24(a) (emphasis added).

(215.) Aldana v. Holub, 381 So. 2d 231,237-38 (Fla. 1980) (citing Lightfoot v. State, 64 So. 2d 261 (Fla. 1952); Fla. Sugar Distrib. v. Wood, 184 So. 2d 641,645 (Fla. 1938); Spencer v. Hunt, 147 So. 2d 282,284 (Fla. 1933)).

(216.) Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 198 99 (Fla. 2007) (emphasis added) (citations omitted) (internal quotation marks omitted).

(217.) See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2 (M.D. Fla. June 30, 2006).

(218.) See Baker v. Miller, 636 N.E.2d 551,559 (Ill. 1994).

(219.) See Throw, 2006 WL 1823783, at *1-2.

(220.) See Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665, at *3 (S.D. Fla. Jan. 8, 2008).

(221.) See FLA. CONST. art. X, [section] 24(t").

(222.) See id. art. X, [section] 24(a); see also 34 FLA. JUR. 2D Labor & Labor Relations [section] 52 (2009). In this section, Florida Jurisprudence specifically notes as follows:
 Under the Florida Constitution, all working Floridians are entitled
 to be paid a minimum wage that is sufficient to provide a decent
 and healthy life for them and their families, that protects their
 employers from unfair low-wage competition, and that does not force
 them to rely on taxpayer-funded public services in order to avoid
 economic hardship.


34 FLA. JUR. 29 Labor & Labor Relations [section] 52 (2009) (citing FLA. CONST. art. X, [section] 24(a)) (emphasis added).

(223.) See FLA. CONST. art. X, [section] 24(f).

(224.) Id.

(225.) See supra Part II ("Overview of the Minimum Wage Amendment and the Minimum Wage Act")

(226.) Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 199 (Fla. 2007).

(227.) See FLA. STAT. [section] 448.110 (6)(a) (b) (2005).

(228.) See FLA. CONST. art. X, [section] 24(a).

(229.) See id. art. X, [section] 24(f).

(230.) See FLA. STAT. [section] 448.110(10).

(231.) See Heart of Adoptions, Inc., 963 So. 2d at 198.

(232.) Notably, each of the areas discussed in this section is complex enough to merit its own article. In the interest of space, they are not discussed in full here, but are mentioned in order to provide a more complete picture of the potential for future litigation issues relating to the Amendment and FMWA.

(233.) Also, in addition to the two areas addressed here, there are other areas of potential litigation which were noted even prior to the signing of the statute into law. For example, the Senate Staff Analysis and Economic Impact Statement notes various additional areas of constitutional concern, including access to the courts and damages, as areas which could potentially be challenged. See ECON. IMPACT STATEMENT, supra note 64, at 7-8. Further, some of the most recent cases address issues not discussed at all in this article which are ripe for consideration. See Curry v. High Springs Family Practice Ctr., No. 1:08-cv-00008-MP-AK, 2008 WL 5157683, at *9 (N.D. Fla. Dec. 9, 2008) (discussing, (1) whether satisfaction of the pre-suit notice provision is an element of a claim under the FMWA, meaning the burden of proving it was satisfied would be on plaintiff and (2) the sufficiency of notice letters in order to satisfy the notice provision).

(234.) FLA. CONST. art. X, [section] 24(e) (emphasis added); FLA. STAT. [section] 448.110(9) (2005).

(235.) See FLA. STAT. [section] 448.110(6).

(236.) See id. [section] 448.110(9).

(237.) See FED. R. CIV. P. 23.

(238.) See FLA. R. CIV. P. 1.220(a).

(239.) See id. 1.220(b).

(240.) 39 FLA. JUR. 2D Parties [section] 44 (2009) (citing FLA. R. CIV. P. 1.220(b), (1)(A), (1)(B)).

(241.) FLA. R. CIV. P. 1.220(b)(2).

(242.) Id. 1.220(b)(3).

(243.) See Ligget Group Inc. v. Engle, 853 So. 2d 434, 446-47 (Fla. 3d Dist. Ct. App. 2003); see also St. Joe Co. v. Leslie, 912 So. 2d 21 (Fla. 1st Dist. Ct. App. 2005) (illustrating individual questions predominating over common questions).

(244.) See FLA. R. CIV. P. 1.220(d)(2).

245. See Throw v. Republic Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783 (M.D. Fla. June 30, 2006); Resnick v. Oppenheimer & Co., Inc., No. 07-80609-CIV, 2008 WL 113665 (S.D. Fla. Jan. 8, 2008).

(246.) See Braddock v. Orlando Reg'l Health Care Sys., Inc., 881 F. Supp. 580 (M.D. Fla. 1995).

(247.) See id. at 583 84.

(248.) See id at 582.

(249.) See id. at 584.

(250.) See id.

(251.) See id. Interestingly, the Florida Supreme Court generally found the pre-suit notice requirement in the medical malpractice statute to be substantive, as opposed to procedural, only a few years earlier. See Williams v. Campagnulo, 588 So. 2d 982, 983 (Fla. 1991).

(252.) Braddock, 881 F. Supp. at 584.

(253.) See Curry v. High Springs Family Practice Ctr., No. I:08-cv-00008-MP-AK, 2008 WL 5157683, at *9 (N.D. Fla. Dec. 9, 2008).

(254.) See id.

(255.) See id.

(256.) See id.

(257.) Braddock, 881 F. Supp. at 583-84.

(258.) See FLA. R. CIV. P. 1.220(d)(2). For example, the suggested form in the Florida Pleading and Practice Forms regarding filing a complaint under the FMWA contains a separate paragraph detailing that notice of intent to initiate a suit was provided, along with other details. See 11 FLA. PL. & PR. FORMS [section] 85.5, at [paragraph] 10.
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