Frs-Fast Reliable Seaway v. Board of Pilot Commissioners

• Court: District Court of Appeal of Florida
• Decided: December 26, 2018
• Docket: 18-1154
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 26, 2018. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D18-1154 Lower Tribunal No. PRRC2014-1 ________________

FRS-FAST Reliable Seaway, LLC., et al., Petitioners,

vs.

Board of Pilot Commissioners of the State of Florida, et al., Respondents.

On Petition for Writ of Certiorari from the Pilotage Rate Review Committee of the Florida Department of Business and Professional Regulation.

Wicker, Smith, O’Hara, McCoy & Ford, P.A., and Jordan S. Cohen, Brandon J. Hechtman and Alyssa M. Reiter, for petitioners.

Radey Law Firm, and Donna E. Blanton, Brittany Adams Long, and Lauren Thompson (Tallahassee), for Biscayne Bay Pilots, Inc.; Panza, Maurer & Maynard, P.A., and Thomas F. Panza and Jennifer K. Graner (Fort Lauderdale), for Florida- Caribbean Cruise Association; Marlene K. Stern and Clark Jennings, Assistant Attorneys General (Tallahassee), for Pilotage Rate Review Committee, for respondents.

Before SALTER, SCALES and LINDSEY, JJ.

SCALES, J. Petitioners FRS-Fast Reliable Seaway, LLC., Antillean Marine Shipping,

Corp., Betty K Agencies (USA), L.L.C., God Is Able Shipping, LLC, and River

Terminal Services, Inc. (collectively, “Petitioners”) challenge, via petition for writ

of certiorari, a final order rendered by respondent Pilotage Rate Review Committee

(“the Committee”), a committee of the Board of Pilot Commissioners of the State of

Florida (“Board”). Because we lack jurisdiction under Florida Rule of Appellate

Procedure 9.030(b)(2) to review final orders of administrative agencies, and because

Petitioners are not “parties” for the purposes of final agency action review under

section 120.68 of the Florida Statutes, we dismiss the petition without prejudice to

Petitioners filing a declaratory judgment and/or injunction action in the Circuit

Court.

I. Parties

Respondent Board is a division of Florida’s Department of Business and

Professional Regulation. The duties of the ten-member Board are described in

chapter 310 of the Florida Statutes. Primarily, the Board determines the number of

pilots necessary for efficient piloting services in each port and disciplines pilots for

misconduct and other violations of duty or law. See §§ 310.061, 310.101, Fla. Stat.

(2017).

2 Pursuant to section 310.151 of the Florida Statutes, the legislature established

the Committee to set pilotage rates at the various ports within the state of Florida.

This seven-member Committee establishes the rates that pilots1 may charge for

piloting vessels in and out of Florida’s various ports. Any pilot or group of pilots or

person(s) whose substantial interests are directly affected may apply to the

Committee for a change of pilotage rates. § 310.151(2), Fla. Stat. (2017).

Respondent Florida Caribbean Cruise Association (“Association”) is a trade

association composed of fifteen cruise line companies that are either based at

PortMiami or call on PortMiami regularly. Respondent Biscayne Bay Pilots, Inc.

(“Pilots”) is an association of harbor pilots who perform pilotage services at

PortMiami.

Petitioners are five individual shipping companies working within PortMiami

that object to pilotage rate changes the Committee adopted in a final order dated

May 9, 2018, but that did not participate in the lower tribunal proceedings.

II. Factual and Procedural Background

In March of 2014, Association filed an application to the Committee seeking

a twenty-five percent decrease in pilotage rates for passenger vessels calling on

PortMiami. Two years later, in March of 2016, Pilots filed a competing application

1 Pilots navigate large ships in and out of the ports of Florida. “‘Pilot’ means a licensed state pilot or a certificated deputy pilot.” § 310.002(2), Fla. Stat. (2017).

3 seeking a set of increases, including a six percent increase in pilotage rates for each

of the following five years and additional vessel charges and surcharges. The

applications of Association and Pilots eventually were consolidated for the

Committee’s consideration.

The Committee conducted a three-day hearing on May 16-19, 2017, and

preliminarily approved an increase to pilotage rates, but to a lesser extent than the

rates proposed by Pilots in their application. Pursuant to section 310.151(4)(a),2 on

2 This section reads in its entirety as follows:

The applicant shall be given written notice, either in person or by certified mail, that the committee intends to modify the pilotage rates in that port and that the applicant may, within 21 days after receipt of the notice, request a hearing pursuant to the Administrative Procedure Act. Notice of the intent to modify the pilotage rates in that port shall also be published in the Florida Administrative Register and in a newspaper of general circulation in the affected port area and shall be mailed to any person who has formally requested notice of any rate change in the affected port area. Within 21 days after receipt or publication of notice, any person whose substantial interests will be affected by the intended committee action may request a hearing pursuant to the Administrative Procedure Act. If the committee concludes that the petitioner has raised a disputed issue of material fact, the committee shall designate a hearing, which shall be conducted by formal proceeding before an administrative law judge assigned by the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57(1), unless waived by all parties. If the committee concludes that the petitioner has not raised a disputed issue of material fact and does not designate the petition for hearing, that decision shall be considered final agency action for purposes of s. 120.68. The failure to request a hearing within 21 days after receipt or publication of notice shall constitute a waiver of any right to an administrative hearing and shall cause the order modifying the pilotage rates in that port to be entered.

4 September 21, 2017, the Committee issued its notice of intent (“NOI”) to modify

the pilotage rates, as the Committee preliminarily approved at its May 2017 meeting.

Then, pursuant to section 310.151(4)(a)’s hearing request provision, both

Association and Pilots requested that a hearing be conducted before an

administrative law judge (ALJ) designated by the Division of Administrative

Hearings. The Committee concluded that the hearing requests raised disputed issues

of material fact, thus necessitating a formal hearing by the ALJ. Id. Petitioners did

not object to the rates noticed in the September 21, 2017 NOI, and therefore, did not

request an administrative hearing.

On January 22, 2018, the ALJ determined there was a defect in the

Committee’s September 21, 2017 NOI.3 The ALJ terminated the administrative

proceedings and relinquished jurisdiction to the Committee to proceed with its

statutory obligations under section 310.151(4)(a). After relinquishment, the

If an administrative hearing is requested pursuant to this subsection, notice of the time, date, and location of the hearing shall be published in the Florida Administrative Register and in a newspaper of general circulation in the affected port area and shall be mailed to the applicant and to any person who has formally requested notice of any rate change for the affected port area.

§ 310.151(4)(a), Fla. Stat. (2017). 3 The ALJ ascertained that he did not have subject matter jurisdiction because the Committee had not complied with procedures set forth in section 310.151(3) that are a prelude to its issuance of an NOI, thereby causing the September 21, 2017 NOI to be ineffective.

5 Committee, on January 30, 2018, then issued a corrected NOI to address the

infirmities of the September 21, 2017 NOI. The Committee’s corrected NOI did not

yield a renewed round of administrative review. In fact, no hearing request was filed

by any party after the Committee’s issuance of the corrected NOI. Instead,

Association and Pilots entered into settlement negotiations. Again, Petitioners did

not object to the rates noticed in the January 30, 2018 corrected NOI, so they did not

Association and Pilots reached a tentative settlement agreement, and their

proposed settlement was presented to the Committee at a noticed meeting on April

27, 2018, at which the Committee approved the negotiated rates outlined in the

settlement agreement.4 The approved rates varied considerably from the rates

noticed in the January 30, 2018 corrected NOI. The Committee adopted these

negotiated rates and rendered the challenged final order on May 9, 2018.

Petitioners filed the instant petition for certiorari relief, seeking a writ from

this Court quashing the Committee’s final order.

III. Discussion and Analysis

A. Petitioners’ Challenge and the Response

4 The March 22, 2018 notice for this April 27, 2018 meeting, which included the Committee’s agenda, referred to a discussion item related to the proposed settlement agreement, but otherwise did not notice a proposed modification to those pilotage rates the Committee had noticed in its January 30, 2018 NOI, nor did the meeting notice contain the NOI formalities required by section 310.151(4)(a).

6 Petitioners assert that they were denied due process because, in adopting the

increased pilotage rates in the May 9, 2018 final order, the Committee failed to

follow the notice requirements of section 310.151(4)(a). Thus, Petitioners argue, the

Committee failed to provide the designated point of entry into the administrative

process, as required by section 310.151(4)(a).

Respondents make two, principal counterarguments as to why this Court

should not review the merits of the petition. First, Respondents assert that rate-

making is a legislative function, and therefore is not subject to certiorari review.

Second, Respondents assert that, because Petitioners never sought an administrative

hearing challenging the rates re-noticed in the January 30, 2018 corrected NOI, they

lack standing to challenge the rates.

B. Availability of Relief to the Petitioners

In order to reach the merits of Petitioners’ claims, we initially must decide

whether, under the facts of this case, we have jurisdiction to adjudicate a petition

seeking certiorari review of a final administrative order. Generally, without

jurisdiction, we do not reach the merits of a controversy. See Kincaid v. World Ins.

Co., 157 So. 2d 517, 517 (Fla. 1963); see also Parkway Bank v. Fort Myers Armature

Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995) (explaining that a district court

should dismiss, rather than deny, a certiorari petition if the petition fails to establish

a basis for jurisdiction). Similarly, without petitioner standing to seek judicial

7 review under Florida’s Administrative Procedures Act (“APA”), we do not reach the

merits of a controversy. Norkunas v. Fla. Building Comm’n., 982 So. 2d 1227, 1228

(Fla. 1st DCA 2008). Our jurisdiction to review a final order from an administrative

agency subject to the APA must derive from either Florida Rule of Appellate

Procedure 9.030(b)(2) or section 120.68 of the Florida Statutes. We review each in

turn.

1. Rule 9.030(b)(2)

Rule 9.030(b) essentially paraphrases the jurisdictional provisions of article

V, section 4(b) of Florida’s Constitution. See Fla. R. App. P. 9.030 committee notes

(1977). Rule 9.030(b)(2) prescribes the district courts’ certiorari jurisdiction, and

reads, in its entirety, as follows:

(2) Certiorari Jurisdiction. The certiorari jurisdiction of district courts of appeal may be sought to review (A) non-final orders of lower tribunals other than as prescribed by rule 9.130;[5] (B) final orders of circuit courts acting in their review capacity.

(Footnote omitted).

Rule 9.030(b)(2)(A) expressly contemplates district courts exercising

certiorari jurisdiction to review non-final orders of lower tribunals. This rule plainly

5 Within rule 9.130 is a schedule of non-final orders that may be reviewed by direct appeal. Fla. R. App. P. 9.130(3).

8 does not provide for a district court exercising such jurisdiction to review a final

order of an administrative agency. Petitioners have provided us with no authority

authorizing such review, and our research similarly has uncovered no authority that

would expand rule 9.030(b)(2)(A)’s scope to include review of final orders of

administrative agencies subject to the APA. We decline Petitioner’s invitation to

expand the scope of our certiorari jurisdiction to review the Committee’s final order.

2. Section 120.68

This does not conclude our inquiry, though, because Article V, section 4(b)(2)

of the Florida Constitution provides that district courts shall have direct review of

administrative actions “as prescribed by general law.” Section 120.68, in turn,

expressly provides for judicial review of final agency action by the district courts. It

reads, in relevant part, as follows:

(1)(a) A party who is adversely affected by final agency action is entitled to judicial review.

....

(2)(a) Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. All proceedings shall be instituted by filing a notice of appeal or petition for review in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the order being appealed. ....

(7) The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when it finds that:

9 ....

(c) The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure . . .

§ 120.68(1)(a), (2)(a), (7)(c), Fla. Stat. (2017) (emphasis supplied).

The statute provides express jurisdictional authority for a district court to

review a final order of an administrative agency, and to quash the order if, as asserted

here, the fairness of the agency’s proceedings were impaired by the agency’s failure

to follow the prescribed statutory procedures. Critically, though, by the express

terms of the statute, only a “party” may invoke such jurisdiction. § 120.68(1)(a), Fla.

Stat. (2017).

Section 120.52(13) of the Florida Statutes defines a “party” for the purposes

of the APA, and reads in relevant part:

(13) “Party” means:

(a) Specifically named persons whose substantial interests are being determined in the proceeding.

(b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.

(c) Any other person, including an agency staff member, allowed by the agency to intervene or participate in the proceeding as a party.

10 An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties.

§§ 120.52(13)(a), (b), (c), Fla. Stat. (2017).

While Petitioners might indeed have been adversely affected by the

Committee’s final order, we are unable to fit Petitioners into any of the statutory

definitions of “party” under the APA. Norkunas, 982 So. 2d at 1228.

Petitioners assert that, in response to the NOIs, they did not request an

administrative hearing because they had no quarrel with the noticed rates. Petitioners

argue that it would be absurd to challenge proposed agency action – that they support

– simply to achieve “party” status under the APA. Petitioners further assert, without

citation to authority, that we should exercise common law certiorari jurisdiction and

reach the merits in this case because the impediment to Petitioners’ standing was

caused by the very conduct they challenge: i.e., the Committee’s failure to provide

Petitioners with a meaningful point of entry into the administrative process in

derogation of section 310.151(4)(a)’s notice requirements. While we are not

unsympathetic to Petitioners’ arguments in this regard, we nevertheless are

constrained by the plain and unambiguous text of the statute, section 120.68(1)(a),

and cannot graft an exception onto the statute out of some amorphous sense of

11 fairness.6 In sum, Petitioners are not “parties” as defined in the APA; therefore,

Petitioners lack standing to seek review of the Committee’s final order under section

120.68.

IV. Conclusion

We lack certiorari jurisdiction to review the Committee’s final order; and,

because no Petitioner is a “party” under the APA, Petitioners lack standing to assert

a challenge to the final order under section 120.68. We, therefore, do not reach the

merits of Petitioners’ claims, and are compelled to dismiss the petition. Our

dismissal, though, is without prejudice to Petitioners bringing an action for

declaratory judgment and/or injunction in the Circuit Court.7

Petition dismissed.

6 Our conclusion in this regard is somewhat ameliorated by the Committee’s concession that the final order – as a quasi-legislative action – may be reviewable in the Circuit Court via a declaratory judgment and/or injunction action. See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 526 n.3 (Fla. 1995). 7 We express no opinion as to the viability or merits of any such action.