From Casetext: Smarter Legal Research

Tyson v. Viacom, Inc.

District Court of Appeal of Florida, First District
Jun 7, 2000
760 So. 2d 276 (Fla. Dist. Ct. App. 2000)

Summary

finding that injunction by federal district court was not a "law, rule, or regulation" within the meaning of the FWBA

Summary of this case from Morin v. Day Zimmermann NPS, Inc.

Opinion

No. 4D99-0517.

Opinion filed June 7, 2000.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. No. 97-002190 (03).

Joseph C. Segor, Miami, and Chonin Sher, P.A., Coral Gables, for appellant.

Lawrence P. Bemis, P.A., and Robert W. Pittman of Steel Hector Davis, L.L.P., Miami, for appellee.


Viacom was subject to an injunction issued by a federal court in Oregon. Tyson was an officer-employee of Viacom. He wrote a letter to the federal court contending that Viacom had violated the injunction. Viacom fired him. He sued Viacom in the circuit court in Fort Lauderdale, alleging that the retaliation was a violation of the Florida Whistle Blowers Act. The circuit court dismissed his suit. We affirm.

The Act in question bars an employer from retaliating against an employee who has:

"(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.

"(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.

"(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.

§ 448.102, Fla. Stat. (1997). Tyson's claims were based on subsections (2) and (3), and not on subsection (1).

Claims under subsections (2) and (3) are not subject to the prior notice provision contained in the second sentence of subsection (1); the notice provision is limited to claims under subsection (1). See The Golf Channel v. Jenkins, 752 So.2d 561, 565 (Fla. 2000); Baiton v. Carnival Cruise Lines, Inc., 661 So.2d 313, 316-17 (Fla. 3d DCA 1995); Judd v. Englewood Community Hosp., 739 So.2d 627, 628 (Fla. 2d DCA 1999) (Blue, J., specially concurring). The complaint was not defective in failing to allege prior notice.

The complaint failed to state a cause of action under section 448.102, however, because an injunction is not "a law, rule or regulation" and the federal district court is not an "agency" within the meaning of the Act. The term "law" does not refer to the whole body of law but instead only to positive law. Section 448.101(4) states that the statutory term law, rule, or regulation:

"includes any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business."

In context, the word "includes" is unambiguously one of limitation, not enlargement.

Moreover, in this act, the legislature has defined agency as "any agency of government charged with the enforcement of laws, rules, or regulations governing an activity, policy, or practice of an employer." § 448.101(1) Fla. Stat. (1999). The enforcement of laws is a function of the executive branch of government. See Art. IV, § 1, Fla. Const. ("The governor shall take care that the laws be faithfully executed. . . ."). Courts are in a separate branch of government and, unless clearly and expressly defined by statute, not embraced by the term "agency." See also Art. II, § 3, Fla. Const. ("The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."). Violations of court orders or injunctions are subject to the contempt powers of a court issuing the injunction powers that are certainly adequate to their purpose. In using the term "agency" the legislature has given the term a meaning narrower than the whole universe of government.

Consequently, the trial court did not err in dismissing the claim.

AFFIRMED.

STEVENSON and HAZOURI, JJ., concur.


Summaries of

Tyson v. Viacom, Inc.

District Court of Appeal of Florida, First District
Jun 7, 2000
760 So. 2d 276 (Fla. Dist. Ct. App. 2000)

finding that injunction by federal district court was not a "law, rule, or regulation" within the meaning of the FWBA

Summary of this case from Morin v. Day Zimmermann NPS, Inc.

concluding that a federal court injunction is not a law, rule or regulation under Florida's Whistleblower Act

Summary of this case from Bush v. Raytheon Co.

concluding that the violation of an injunction is not a violation of law under the FWA

Summary of this case from Pierre v. AIDS Healthcare Found., Inc.

stating that the violation of an injunction is not a violation of law under the FWA

Summary of this case from Kearns v. Farmer Acquisition Co.
Case details for

Tyson v. Viacom, Inc.

Case Details

Full title:JOHN M. TYSON, Appellant v. VIACOM, INC., a Delaware Corporation, Appellee

Court:District Court of Appeal of Florida, First District

Date published: Jun 7, 2000

Citations

760 So. 2d 276 (Fla. Dist. Ct. App. 2000)

Citing Cases

Kearns v. Farmer Acquisition Co.

In contrast to Luna, in White, 369 F.Supp.2d at 1338, the Middle District stated that it would not apply the…

White v. Purdue Pharma, Inc.

Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 423 (Fla. 1994) (emphasis added). Defendant has cited the Court to…