Tuesday, October 24, 2017

Weekly Roundup: Begin again

News-Service-Florida-Logo-68x25BY | Brandon Larrabee
The News Service of Florida

THE CAPITAL, TALLAHASSEE……… Spring is usually the season for renewal, but new beginnings for state government are underway in the heat of summer.

Some are cyclical, like the earliest legislative proposals being filed for the session that begins in January. The claim bills — filed for people who have been harmed by the government in some ways — are usually the first concrete steps toward lawmakers’ annual gathering in Tallahassee.

Meanwhile, Visit Florida’s boss began a swing across the state, with the aim of helping rebuild the tourism marketer’s reputation after this year’s legislative session, which saw the organization serve as a pinata for House Speaker Richard Corcoran.

Also, the state’s new death-penalty regime moved one step closer to a fateful decision that could clear the way for Florida’s first execution in more than 18 months. Some starts are unpleasant.

But the hope is that most new beginnings will be for the better and that the improvement will last until the next one comes along.


It is virtually inevitable, when a state introduces a new drug mix for its lethal injections, that a legal challenge will soon follow. The case of Mark James Asay, a Death Row prisoner scheduled to be put to death Aug. 24, is following the pattern.

After losing the first round of the legal battle, Asay’s lawyer has gone to the Florida Supreme Court, asking justices to review the new drug protocol that would be used on Asay. It would mark the first execution in Florida since the state’s death-penalty regime was tied up by months of wrangling over the role of juries in imposing capital punishment.

Gov. Rick Scott originally set Asay’s execution for early 2016, before the legal battles put things on hold. After those issues were resolved, Scott moved the date to August; but by then, the Florida Department of Corrections had introduced its new drug mix.

Now, the state plans to use etomidate instead of midazolam as the critical first drug, used to sedate prisoners before injecting them with a paralytic and then a drug used to stop prisoners’ hearts.

Asay argues that the state failed to provide him notice of the revamped lethal injection protocol, essentially keeping his lawyer, Marty McClain, from having enough time to present evidence at a circuit court hearing last week. Ultimately, Duval County Circuit Judge Tatiana Salvador ruled that Asay failed to prove that the new three-drug protocol is unconstitutional.

McClain argues that, instead of the new drug protocol, corrections officials should use the three-drug lethal injection procedure involving midazolam, vecuronium bromide and potassium chloride that was in effect when Asay’s original death warrant was signed last year, or a single-drug protocol adopted by some other death-penalty states.

Despite numerous challenges to the use of midazolam as the first drug in the lethal injection process, courts have repeatedly upheld its use, McClain wrote. But etomidate is another matter.

“It carries a risk of pain and a risk of seizure-like movements as Mr. Asay dies. This raises Eighth Amendment bases to challenge both the substantial risk of pain and the undignified manner of death,” he wrote.

The change in the protocol has come as states have scrambled to obtain lethal-injection drugs because manufacturers have refused to sell the substances to corrections agencies for execution purposes.

In a 65-page response, Assistant Attorney General Charmaine Millsaps referenced Salvador’s ruling.

Etomidate, also known by the brand name “Amidate,” is a short-acting anesthetic that renders patients unconscious. Twenty percent of people experience mild to moderate pain after being injected with the drug, but only for “tens of seconds” at the longest, the Duval County judge noted.

“Given that lethal injection protocols use needles to deliver the drugs, all such protocols involve some pain. But executions are not required to be totally painless,” Millsaps wrote. “Rather, the risk of pain from the protocol must be sure or very likely to cause ‘needless suffering.’ ”

Both of the state’s experts testified that, even though the medical literature refers to a 20 percent chance of patients experiencing some pain from etomidate, “neither had actually seen a patient experience any pain,” Millsaps added.


Visit Florida is usually just the name of the state’s tourism-marketing agency — not an action plan. But Ken Lawson, president and CEO of the public-private organization, said this week he would indeed visit Florida.

After months of negative press and new rules that ended partnerships with a number of local tourism organizations, Lawson has started traveling the state to try to rebuild trust with industry officials.

He wrote Wednesday on the corporate blog “Sunshine Matters” that he has started to “humbly” reach out to different groups across the state.

“I want to earn your trust and learn from you first hand,” Lawson wrote. “This has been a hard year for all of us.”

Visit Florida this year had to fight to keep its state funding from being cut by two-thirds. Also, it dropped the sponsorship of an auto racing team and recently did not continue sponsorship of the British football club Fulham.

The tourism-marketing agency ultimately avoided major funding cuts. But with lawmakers approving new disclosure rules tied to the state funding, the agency has lost partnerships with 12 local organizations. That doesn’t necessarily mean the regional organizations have severed ties with Visit Florida.

“We will continue to evaluate sales and marketing opportunities, on a case-by-case basis, for possible integration within our destination marketing plan,” Jorge Pesquera, president & CEO of Discover The Palm Beaches, said Thursday.

Even with the change, 46 tourism organizations have agreed to continue partnering with Visit Florida.

Lawson acknowledged in the blog that the “battle” to maintain funding “was hard and messy.”

“It is now time to heal and come together,” Lawson wrote. “As part of this process, I am humbly reaching out to you to hear your story, learn about your challenges, and determine how Visit Florida can help with your future success.”

Meanwhile, the fallout from changes at another economic development agency continued. The board of the South Florida Water Management District decided to promote Ernie Marks to serve as executive director, taking over for Pete Antonacci.

Antonacci left the district to take over Enterprise Florida, the state’s business-recruitment agency.

Board members said they looked to Marks, director of Everglades policy and coordination, in part to avoid disruptions in ongoing water projects throughout the district’s 16-county region, which stretches from Orlando to the Florida Keys.

“We have a lot of projects that are critical, that we are on the cusp of completing, and having a seamless transition in that leadership is very, very important,” board member Brandon Tucker said. “I think those relationships that Mr. Marks has with our partnering agencies, and all these things we have going on, I believe he’ll do a tremendous job.”


As a percentage of money that the state spends every year, claim bills amount to a tiny sliver of the budget. For those affected by them, it’s another matter. And in any case, the legislative calendar pretty much dictates that the bills are first out of the chute.

Claim bills filed in the Senate for the 2018 session include addressing a woman who died as a result of a Florida Highway Patrol officer using a Taser and a Tampa chef left disabled after a crash with a city water truck.

Claim bills stem from people who are injured or die because of the actions of government agencies or employees. A legal concept known as “sovereign immunity” typically shields agencies from paying large amounts in lawsuits. But claim bills, if passed, direct agencies to pay more than sovereign-immunity caps, which are often $200,000 or $300,000.

The measures filed Tuesday totaled more than $50 million, but many of the proposals have previously been introduced in the Capitol and have struggled to advance.

Among the bigger-ticket proposals, Sen. Bill Galvano, R-Bradenton, filed a bill (SB 46) that would direct the city of Tampa to pay $17.8 million to chef Ramiro Companioni.

In 1996, Companioni suffered “catastrophic” injuries when the motorcycle he was riding was involved in a crash with a city of Tampa water truck that had crossed three lanes of traffic, the bill said.

Sen. Audrey Gibson, D-Jacksonville, proposed directing money to the estate of Danielle Maudsley, who in 2011 was critically injured and later died after a Florida Highway Patrol officer used a Taser on her.

The bill (SB 14), which would carry out a $1.95 million settlement, said the 20-year-old Maudsley was taken in September 2011 to a Florida Highway Patrol substation in Pinellas Park for processing after being arrested on traffic charges.

While handcuffed, Maudsley ran from the substation. In the parking lot, a trooper used a Taser, causing her to collapse and fall, leading to a traumatic brain injury. She died two years later.

STORY OF THE WEEK: The battle over the state’s new death-penalty protocol moved to the Florida Supreme Court, the next stage in a months-long fight about how the state carries out the ultimate punishment.

QUOTE OF THE WEEK: “This case, however, is a classic example of how inflexible mandatory minimum sentences may result in injustices within the legal system that should not be tolerated. I, therefore, recommend that appellant apply for executive clemency … and that the governor and Cabinet act favorably upon this request.”—1st District Court of Appeal Judge James Wolf, in a concurring opinion upholding the conviction and 20-year sentence of Eric Patrick Wright. Wright was found guilty of aggravated assault with a deadly weapon in the 2013 incident in Duval County.

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