An injunction for protection can have serious consequences for a respondent in Florida, including consequences to your family, your job, and your education, as well as the deprivation of your right to bear arms. It can be helpful to consult with an attorney before attending an injunction hearing, to ensure you understand your rights and know what to expect in these proceedings.
Temporary Injunctions
After a person files a petition for injunction to a court, the court may enter a temporary ex parte injunction. An ex parte injunction is one entered without prior notice to the respondent, and this can only be entered if, based on the allegations in the petition, it appears to the court that there is an immediate and present danger that domestic violence exists. §741.30(5), Fla. Stat. (2023). If the court does enter a temporary injunction, there will be a final hearing at which the respondent can contest the allegations - the entry of a temporary injunction does not mean that a final injunction will be awarded. Similarly, if the court finds the allegations insufficient to support the entry of a temporary injunction, it can still set a hearing to allow the petitioner to present evidence, and may still award a final injunction. In some cases, the court will decline to enter a temporary injunction and decline to set a final hearing.
Due Process
If someone files a petition for injunction against you, you have a right to due process in those proceedings before a final injunction can be entered against you. Due process includes the right to adequate notice of the proceedings against you. Brooks v. Basdeo, 336 So. 3d 423 (Fla. 5th DCA 2022). Florida law requires that a petition for injunction for protection against domestic violence include the specific facts and circumstances upon which relief is sought. § 741.30(3)(a), Fla. Stat. (2023). This means that, at a final injunction hearing, the court should not allow the petitioner to testify about incidents that are not included in their petition. Brooks v. Basdeo, 336 So. 3d 423 (Fla. 5th DCA 2022).
Due process also requires that a respondent is provided a full hearing before an injunction can be entered. § 741.30(5), Fla. Stat. (2023). A “full hearing” includes the opportunity to present and cross-examine witnesses and to submit evidence for the court’s consideration. Ceelen v. Grant, 210 So. 3d 128 (Fla. 2d DCA 2016).
Domestic Violence Injunctions
Section 741.30, Florida Statutes (2023) allows a person to petition a court for an injunction for protection against domestic violence if they currently are, or have reasonable cause to believe they are in imminent danger of becoming, a victim of domestic violence. The term “domestic violence” is defined in Section 741.28(2), Florida Statutes (2002) as:
“any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member”.
A final judgment of injunction for protection against domestic violence must be supported by competent, substantial evidence that the respondent has recently committed acts of violence, or has threatened to imminently do so. Mack v. Mack, 308 So. 3d 220 (Fla. 1st DCA 2020); Curl v. Roberts ex rel. E. C., 279 So. 3d 765 (Fla. 1st DCA 2019).
Stalking Injunctions
Section 784.0485, Florida Statutes (2022) establishes a cause of action for an injunction for protection against stalking. “Stalking” is defined by Section 784.048, Florida Statutes (2021) as either: (1) willfully, maliciously, and repeatedly following; (2) harassing; or (3) cyberstalking another person. Cyberstalking is defined by Florida Statute as a course of conduct that communicates, directly or indirectly, words, images, or language through electronic communication, directed at or pertaining to a specific person, causing substantial emotional distress and serving no legitimate purpose. §784.048(1)(d), Fla. Stat. (2021).
Florida law defines “harassment” as a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a), Fla. Stat. (2021). The same law defines a “course of conduct” as a “pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b), Fla. Stat. (2021).
In order to support an injunction for protection against stalking, a court must find that there is competent, substantial evidence of repeated acts. Pickett v. Copeland, 236 So. 3d 1142 (Fla. 1st DCA 2018).
Florida courts have repeatedly held that a course of conduct has a “legitimate purpose” where there is any reason behind the conduct other than to harass the victim. See Cash v. Gagnon, 306 So. 3d 106 (Fla. 4th DCA 2020). Voicing complaints about another person, even if done so in an “intemperate, crude, and uncivil manner” constitutes a legitimate purpose and does not warrant injunctive relief. However, even if a person has ulterior motives for contacting a person’s employer, it does not mean that this motive renders the entire contact bereft of legitimate purpose. See Gonzalez v. Funes, 300 So.3d 679 (Fla. 4th DCA 2020).
Incidences of harassment must also be “directed at a specific person”. See Fla. Stat. § 784.048(1)(a) (2021). Emails sent to a third party, even if they discuss or affect the Petitioner, cannot be considered as “directed at” the Petitioner for purposes of establishing an incident of stalking for a Petition for Injunction. See Dixon v. Sermon, 230 So. 3d 609, 610 (Fla. 2d DCA 2017)(reversing a stalking injunction where the respondent's conduct was directed at the petitioner's husband, rather than the petitioner);
In order to support a finding that a person has engaged in an act of “stalking”, the Court must find that the Respondent’s actions caused “substantial emotional distress”. See Fla. Stat. § 784.048(1)(a) (2021). In considering the sufficiency of the evidence of emotional distress, the Court must apply a reasonable person standard, not a subjective standard. See D.L.D. v. State, 815 So. 2d 746, 748 (Fla. 5th DCA 2002)(holding that the fact that the victim was in tears and terrified was not sufficient to establish emotional distress if a reasonable person would not be put in distress when subjected to the same conduct). "Mere irritation, annoyance, embarrassment, exasperation, aggravation, and frustration, without more, does not equate to ‘substantial emotional distress.’" See Cash v. Gagnon, 306 So. 3d 106 (Fla. 4th DCA 2020); Santiago v. Leon, 299 So.3d 1114 (Fla. 3d DCA 2020).Simply put, injunctive relief is not available to prohibit or prevent defamatory or libelous statements. See Cash v. Gagnon, 306 So. 3d 106 (Fla. 4th DCA 2020).
Although lawyers are not required and not provided automatically in injunction proceedings, involving an attorney early on in the process can be a game-changer. Attorneys Ben and Lori Wurtzel have substantial experience on both sides of injunction hearings, as well as in the appeal of injunction orders. Too often, individuals wait until after a final injunction has been entered to call an attorney, after attempting to navigate the process on their own. Contact Wurtzel Law, PLLC for a free consultation to be proactive and discuss and what we can do to help, today.