Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-2844 _____________________________ NEVAEH LOVE, Appellant, v. KATOSHIA YOUNG, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Edward P. Nickinson, III, Judge. June 22, 2021 ON APPELLANT’S MOTION FOR REHEARING EN BANC PER CURIAM. DENIED. ROWE and KELSEY, JJ., concur; BILBREY, J., concurs with opinion. BILBREY, J., concurring in denial of rehearing en banc. Appellant Nevaeh Love moved for rehearing en banc claiming that this case merits the entire court’s consideration based on the exceptionally important need to overrule the primary opinion. See Fla. R. App. P. 9.331(a) (permitting en banc consideration if a case or issue is of exceptional importance). I respectfully maintain, as explained in my dissent, that we should reverse and remand the judgment for further proceedings. The Florida Civil Rights Act applies to the discrimination suffered by Love whether characterized as because of sex or gender identity. See Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). I do not agree that the FCRA contains an exception for the sexually related nature of the public performance as the primary opinion contends. And I do not agree that the lodge hall where the unlawful discrimination occurred was not a public accommodation, as the concurring in result opinion contends. But I agree we are correct to deny en banc consideration of the case because of the lack of any binding precedent created by the three opinions here. Although I respectfully disagree with my colleagues’ opinions, the only decision from this court on Love’s appeal is “affirmed.” There is a primary opinion and a concurring in result opinion, but there is no majority opinion. As I discussed in footnote 13 of my dissent, “An opinion joined in by a majority of the members of the Court constitutes the law of the case. A concurring opinion does not constitute the law of the case nor the basis of the ultimate decision unless concurred in by a majority of the Court.” Greene v. Massey, 384 So. 2d 24, 27 (Fla. 1980). My colleagues on the panel agreed that the judgment for Appellee Katoshia Young should be affirmed. In doing so they reached a binding decision on Love’s appeal, as the Florida constitution requires for all appeals. See Santos v. State, 629 So. 2d 838, 840 n.1 (Fla. 1994); see also Art. V, § 4(a), Fla. Const. (requiring the “concurrence of two” out of the three judges on a district court appellate panel to reach a decision). But they did not agree on the rationale for their decision, so there was no binding precedential opinion. See Santos, 629 So. 2d at 840 n.2 (defining the “opinion” to mean “the entire written statement issued by the Court in reaching its decision in a case, including the analysis and reasoning”). Here, the two separate opinions for affirming, with no shared rationale, are the same as an unelaborated affirmance. The two judges could have issued a brief per curiam opinion affirming followed by two concurring opinions had they chosen to do so. That is how a previous panel of this court handled a case in which two judges agreed on a result but did not agree on a rationale. See In 2 re Doe 13-A, 136 So. 3d 723 (Fla. 1st DCA 2014); see also Woods v. State, 214 So. 3d 803 (Fla. 1st DCA 2017) (en banc) (affirming by an unelaborated per curiam decision supported by a majority of the en banc court followed by three concurring opinions each lacking a majority). Either way, no precedent is created because there was no opinion joined by a majority. See, e.g., Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So. 2d 310, 311 (Fla. 1983) (holding that an “appellate court decision with no written opinion” does not have “any precedential value”). All our sound and fury, my dissent included, has signified nothing other than a two to one vote for affirming the judgment for Young. With no precedent having been created, later panels of this court are free to consider everything discussed in the three opinions anew. Furthermore, we have done nothing to bind the trial courts in interpreting the FCRA. The value of anything written on Love’s appeal is only persuasive, not binding. “Courts frequently fail to achieve a majority vote in closely divided cases, so it cannot be considered a judicial sin to fail to achieve a precedential opinion.” Scott D. Makar, Browning v. Florida Hometown Democracy, Inc.: A Case Study in Judicial Opinion Writing, 41 STETSON L. REV. 477, 495 (2012). In conclusion, Love’s concern that this court has approved the trial court’s creation of a judge-made defense to the FCRA is misplaced. Since the panel’s affirmance of the trial court’s judgment does not create any binding precedential opinion, and since Love’s motion does not set forth any other grounds for en banc consideration, I agree we are correct to deny rehearing en banc. _____________________________ Benjamin James Stevenson, ACLU Foundation of Florida, Pensacola; Daniel B. Tilley and Nancy Abudu, ACLU Foundation of Florida, Miami, for Appellant. Kenneth L. Brooks, Jr. of Brooks, Warrick & Associates, Milton, for Appellee. 3