SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-0587 Lower Tribunal No. 21-0059 _____________________________
LIGHTSEY CATTLE COMPANY,
Appellant,
v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION,
Appellee. _____________________________
Appeal from the Florida Fish and Wildlife Conservation Commission.
July 12, 2024
MIZE, J.
In this administrative law appeal, Appellant, Lightsey Cattle Company
(“Appellant” or “Lightsey”), appeals a final order entered by the Florida Fish and
Wildlife Conservation Commission (the “Commission”) that upheld the
Commission’s issuance of a conditional hunting preserve license to Lightsey.1
Specifically, Lightsey objects to the condition placed on the license, which is that
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. Lightsey construct a fence around its hunting preserve. We conclude that this court
lacks jurisdiction over the appeal and that Lightsey’s proper remedy is to seek review
of the Commission’s order by petition for writ of certiorari in circuit court. Because
the notice of appeal was timely and otherwise sufficient to invoke certiorari
jurisdiction, we transfer this case to the Circuit Court of the Ninth Judicial Circuit in
and for Osceola County.
Background and Procedural History
The Commission was created by article IV, section 9 of the Florida
Constitution. The Constitution provides that the Commission “shall exercise the
regulatory and executive powers of the state with respect to wild animal life and
fresh water aquatic life.”2 Art. IV, § 9, Fla. Const. The Commission’s power to adopt
rules to regulate game and fresh water fishing in the State is exclusive, and its rules
adopted to this end are tantamount to legislative acts. Airboat Ass’n of Fla., Inc. v.
Fla. Game & Fresh Water Fish Comm’n, 498 So. 2d 629, 631-32 (Fla. 3d DCA
1986); Wakulla Com. Fishermen’s Ass’n. v. Fla. Fish & Wildlife Conservation
Comm’n, 951 So. 2d 8, 9 (Fla. 1st DCA 2007).
2 Article IV, section 9 includes one exception to the Commission’s power to exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, which is that “all license fees for taking wild animal life, fresh water aquatic life, and marine life and penalties for violating regulations of the commission shall be prescribed by general law.” 2 Pursuant to its constitutional authority, the Commission has adopted a rule
requiring every private hunting preserve to be enclosed by a fence that meets certain
requirements, the specifics of which are not material to this appeal. The rule is set
forth in Rule 68A-12.010(8) of the Florida Administrative Code (the “Fencing
Rule”).
In 1987, Lightsey applied for and received from the Commission’s
predecessor agency, the Florida Game and Freshwater Fish Commission (the
“Predecessor Commission”), a license to operate a hunting preserve on Brahma
Island, which is located inside Lake Kissimmee in Osceola County.3 The hunting
preserve encompasses the entire island. The license was valid for one year. The
license contained a note handwritten by a then-Bureau Chief of the Predecessor
Commission which stated, “water barrier OK for existing facilities.” After this
license was issued, Lightsey continued to apply for and receive annual license
renewals every year from the Predecessor Commission and later, the Commission,
3 The Predecessor Commission was merged into the Commission in 1999 after the voters of Florida enacted an amendment to article IV, section 9 of the Florida Constitution that created the Commission. Under the version of article IV, section 9 in effect prior to this constitutional amendment, the Predecessor Commission also exercised “the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” Art. IV, § 9, Fla. Const. (1974). The Predecessor Commission originally adopted the Fencing Rule, and the Commission maintained the rule after the Commission was created. The Commission last amended the Fencing Rule in 2018 when it amended the rule to change the specifications that a fence must meet in order to satisfy the rule. 3 without either the Predecessor Commission or the Commission ever making any
attempt to enforce the Fencing Rule against Lightsey’s island hunting preserve.
Over the years, the Commission’s annual inspection reports for the hunting preserve
often contained references to Lightsey’s exemption from the Fencing Rule and noted
that the exemption was granted in 1987.4
The Commission’s position with respect to Lightsey’s hunting preserve
changed in 2021. When Lightsey’s license came up for its annual renewal in June
of 2021, the Commission granted Lightsey only a conditional hunting preserve
license. Specifically, the license conditioned Lightsey’s ability to operate the
hunting preserve on Lightsey erecting a fence around the hunting preserve that
complied with the Fencing Rule. The license provided that Lightsey’s failure to
comply with the Fencing Rule within twelve months of the issuance of the license
would result in the Commission denying Lightsey a renewal of its license for the
following twelve-month period.
Lightsey challenged the Commission’s issuance of the conditional license,
and specifically the imposition of the condition for Lightsey to comply with the
Fencing Rule, by filing with the Commission a petition (the “Petition”) for an
administrative proceeding pursuant to sections 120.569 and 120.57, Florida Statutes,
4 Lightsey obtained annual licenses for its hunting preserve every year since at least some time in the 1970s, but the 1987 license is the license that Lightsey asserts contained a permanent exemption from the Fencing Rule. 4 which are part of the Administrative Procedure Act (the “APA”).5 These sections
provide for two types of hearings. Section 120.57(1) applies whenever a proceeding
involves a disputed issue of material fact. § 120.569(1), Fla. Stat. (2011). Hearings
under section 120.57(1) are conducted by an administrative law judge assigned by
the Division of Administrative Hearings (“DOAH”). Section 120.57(1) also
provides the parties with various significant procedural rights, including the right to,
among other things, present evidence and cross-examine witnesses. A hearing
conducted under section 120.57(1) is referred to as a “formal hearing.” Section
120.57(2) applies when a proceeding does not involve a disputed issue of material
fact. § 120.569(1), Fla. Stat. Hearings under section 120.57(2) are conducted by a
hearing officer assigned by the Commission. Under section 120.57(2), the parties
have significantly fewer procedural rights and do not have the same rights with
respect to the submission of evidence. A hearing conducted under section 120.57(2)
is referred to as an “informal hearing.”
In its Petition, Lightsey asserted, among other things, that the notation on its
1987 license constituted a permanent exemption from the Fencing Rule (including
any future amendments thereto) granted to Lightsey by the Commission. Lightsey
requested a formal hearing before DOAH under section 120.57(1) to present
5 As will be explained below, the administrative proceeding in this case was not actually conducted under the APA, but rather under the Commission’s own procedures which incorporate the text of the APA but are not, in fact, the APA. 5 evidence and prove that it possessed the exemption. The Commission responded to
the Petition by sending Lightsey a letter stating that there were no material facts in
dispute and that, therefore, the Commission would only allow Lightsey an informal
hearing under section 120.57(2). Despite additional subsequent objections from
Lightsey, the Commission maintained its position that Lightsey was not entitled to
a formal hearing under section 120.57(1).
The informal hearing was conducted in December 2021. In its brief submitted
to the Commission before the hearing and then again at the hearing, Lightsey argued
that it possessed an exemption to the Fencing Rule and that, even if it did not actually
possess an exemption, the doctrine of estoppel should prevent the Commission from
enforcing the Fencing Rule against Lightsey. At the hearing, Lightsey also again
objected to the Commission holding an informal hearing, again requested that the
hearing officer refer the parties to DOAH to hold a formal hearing under section
120.57(1), and then attempted to present various pieces of evidence. The
Commission argued in response that there were no material facts in dispute because
the Commission, as a matter of law, does not have the legal authority to grant
exemptions to the Fencing Rule.6 The Commission asserted that since it cannot
6 The parties’ disagreement regarding whether the Commission possesses legal authority to grant exemptions to the Fencing Rule centers on whether the Commission is bound by section 120.542 of the APA, which concerns variances and waivers, in its enforcement of the Fencing Rule, as well as the proper interpretation of that section if the Commission is bound by it. Which party is correct about this 6 legally grant an exemption to the Fencing Rule, the notation on Lightsey’s 1987
license could not, as a matter of law, be an exemption regardless of what the notation
stated. The hearing officer denied Lightsey’s request for a formal hearing and
proceeded with the informal hearing.7
After the hearing, the hearing officer issued his Recommended Order, which
denied Lightsey’s challenge to the conditional hunting preserve license. While the
order is not perfectly clear, the hearing officer appears to have adopted the position
of the Commission that the Commission cannot legally grant an exemption to the
Fencing Rule and that, therefore, the notation on Lightsey’s 1987 license could not,
as a matter of law, be an exemption. Lightsey submitted Exceptions to the
Recommended Order. In June 2022, the Commission entered a Final Order which
rejected Lightsey’s exceptions, accepted the Recommended Order of the hearing
officer, and upheld the issuance of Lightsey’s conditional hunting preserve license.
Lightsey then filed this appeal.
On appeal, Lightsey argues that its Petition raised disputed issues of material
fact, specifically whether Lightsey possessed a permanent exemption from the
Fencing Rule and whether the Commission should be estopped from enforcing the
issue is not material to this opinion given our determination that we lack jurisdiction to decide this appeal. 7 While the hearing officer accepted some evidence, he denied Lightsey’s request for a formal hearing under section 120.57(1) and ultimately prohibited Lightsey from introducing most of the evidence that Lightsey attempted to introduce. 7 Fencing Rule against Lightsey. Lightsey argues that because its Petition presented
disputed issues of material fact, the Commission committed reversible error by
refusing to grant Lightsey a formal administrative hearing before DOAH under
section 120.57(1).
Analysis
I. Jurisdiction
Both parties in this case agree that we possess jurisdiction over this appeal.
However, “the parties cannot confer jurisdiction on the court that it does not have by
agreement or acquiescence.” Shannon v. Cheney Bros. Inc., 157 So. 3d 397, 399
(Fla. 1st DCA 2015). “We have an independent obligation to examine our
jurisdiction in every case.” Riggins v. Clifford R. Rhoades, P.A., 373 So. 3d 655, 660
n.4 (Fla. 6th DCA 2023). Accordingly, we begin by determining whether we possess
jurisdiction.
“Article V, Section 4(b)(2) of the Florida Constitution establishes the basic
jurisdiction of district courts of appeal to review the action of administrative
agencies by direct appeal.” Airboat Ass’n, 498 So. 2d at 631. Article V, section
4(b)(2) provides: “District courts of appeal shall have the power of direct review of
administrative action, as prescribed by general law.”
Thus, in order for a district court of appeal to have jurisdiction over a direct
appeal of an action by an administrative agency, there must be a general law
8 prescribing such jurisdiction. In this case, the only general law that the parties have
cited in support of their assertion that we possess jurisdiction over this appeal is
section 120.68 of the APA, which states: “A party who is adversely affected by final
agency action is entitled to judicial review. . . . 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.” § 120.68(1)(a), (2)(a), Fla. Stat. (2016).
The problem is that the Commission, when acting pursuant to its
constitutional powers, is not an “agency” as defined by the APA, and its actions,
therefore, are not “agency action.” Section 120.52(1)(a) of the APA defines agency
to mean certain officers and governmental entities, including the Commission, “if
acting pursuant to powers other than those derived from the constitution.” (emphasis
added). In this case, both parties agree that the Commission promulgated the
Fencing Rule pursuant to its constitutional authority granted by article IV, section 9.
Additionally, in enforcing the Fencing Rule, the Commission was exercising the
executive power of the state with respect to wild animal life, also pursuant to its
constitutional authority. See Art. IV, § 9, Fla. Const.; Wakulla Com. Fishermen’s
Ass’n, 951 So. 2d at 9 (“[A] rule adopted by [the Commission] is tantamount to a
legislative act.” (quoting Airboat Ass’n, 498 So. 2d at 631 (internal quotations
omitted))); Tyson v. Viacom, Inc., 760 So. 2d 276, 277 (Fla. 4th DCA 2000) (“The
enforcement of laws is a function of the executive branch of government.”); Curry
9 v. State, 811 So. 2d 736, 743 (Fla. 4th DCA 2002) (“[T]he enforcement of laws is
also a function of the executive branch of government.”). Thus, both in adopting
and enforcing the Fencing Rule, the Commission was acting pursuant to powers
derived from the Florida Constitution and, therefore, was not an “agency” for
purposes of the APA. Consequently, a party who is adversely affected by the
Commission’s adoption or enforcement of the Fencing Rule is not “adversely
affected by final agency action” under the APA, nor can judicial review be sought
in the appellate district where the agency maintains its headquarters because the
Commission, for purposes of the Fencing Rule, is not an agency as defined in the
APA. See Decker v. Univ. of W. Florida, 85 So. 3d 571, 573 (Fla. 1st DCA 2012)
(“A decision is reviewable by appeal to a district court of appeal under the general
provisions of the Administrative Procedure Act only if the person or entity rendering
the decision falls within the statutory definition of an agency. The Act limits the
definition of an agency to persons or entities ‘acting pursuant to powers other than
those derived from the constitution.’ The significance of this limitation is clear:
when an officer or agency is exercising power derived from the constitution, the
resulting decision is not one that is made by an agency as defined in the
Administrative Procedure Act.” (internal citations omitted)).
After this Court requested supplemental briefing concerning whether this
Court possesses jurisdiction over this appeal, the Commission filed its supplemental
10 brief in which it argued that the Commission actually was acting pursuant to the
APA when it denied Lightsey a formal hearing, when it conducted the informal
hearing that it did allow Lightsey, and when it denied Lightsey’s Petition and entered
the Final Order. Specifically, the Commission argues that article IV, section 9
requires that “[t]he commission shall establish procedures to ensure adequate due
process in the exercise of its regulatory and executive functions.” With respect to
the enforcement of rules promulgated under its constitutional authority, the
procedures the Commission has adopted to satisfy this requirement are certain
provisions of the APA, including sections 120.569, 120.57 and 120.68.8 See Fla.
Admin. Code R. 68-1.008(5). The Commission argues that because the Commission
has adopted portions of the APA to govern proceedings concerning the enforcement
of rules adopted pursuant to its constitutional authority, including the administrative
proceeding at issue in this case, the Commission was acting pursuant to the APA
when it denied Lightsey a formal hearing, when it conducted the informal hearing,
and when it denied Lightsey’s Petition and entered the Final Order upholding the
Commission’s issuance of Lightsey’s conditional license. Accordingly, the
Commission argues, its action in entering the Final Order was final agency action
under the APA. And because the Commission has adopted section 120.68, judicial
8 The parties dispute whether the Commission has adopted and is bound by section 120.542. See note 6, supra. 11 review of the Commission’s Final Order can be sought in the appellate district where
the Commission maintains its headquarters or in any appellate district where a party
to the appeal resides. There are two problems with this argument.
First, jurisdiction of a district court of appeal over a direct appeal of
administrative action can only be prescribed by general law. Art. V, § 4(b)(2), Fla.
Const. The Commission cannot enact a “general law.” See Art. III, § 1, Fla. Const.
(“The legislative power of the state shall be vested in a legislature of the State of
Florida, consisting of a senate composed of one senator elected from each senatorial
district and a house of representatives composed of one member elected from each
representative district.”); Art. III, § 6, Fla. Const. (“The enacting clause of every law
shall read: “Be It Enacted by the Legislature of the State of Florida.” (emphasis
added)).
While the Commission was certainly permitted to incorporate the APA as its
due process procedures, that does not mean that its due process procedures are the
APA or that the Commission acts pursuant to the APA when it utilizes those
procedures. The Commission was not required to adopt the APA as its due process
procedures. The Commission could have also adopted the due process procedures
used by a particular agency of the federal government or the procedures utilized by
another state or an agency thereof. The Commission could have also written its own
procedures from scratch. If the Commission had adopted as its due process
12 procedures the federal Administrative Procedure Act, some due process procedures
set forth in the statutes of the State of Georgia, or the Code of Hammurabi for that
matter, the Commission would not be acting pursuant to federal law, Georgia law,
or the Code of Hammurabi when it conducted its proceedings. Rather, the
Commission would be acting pursuant to its own due process procedures which
incorporate the text of another set of procedures.
Simply put, when the Commission acts pursuant to its own procedures that
incorporate the text of a general law, it is acting under its own procedures, not under
general law. The Commission has no authority to enact general laws, and it cannot
do so by adopting rules that incorporate the text of a general law. The Commission
was not acting under the APA when it conducted the administrative proceeding at
issue in this case, and there was no final agency action under section 120.68. While
section 120.68 is a general law, the Commission’s procedures incorporating section
120.68 are not a general law.
Second, section 120.52(1)(a) defines agency to mean certain officers and
governmental entities, including the Commission, “if acting pursuant to powers
other than those derived from the constitution.” Thus, for an agency to be an agency
for purposes of the APA, it must be acting pursuant to a power not derived from the
Constitution, such as a power derived from a statute.
13 Even if the Commission had the authority to and did “adopt the APA” to
govern the administrative proceeding at issue in this case such that the Commission
was acting pursuant to the APA when it conducted the proceeding (which it does not
and did not), the Commission still was not acting pursuant to power derived from
the APA. The APA does not grant agencies power to act. Rather, the APA governs
an agency’s exercise of power derived from some source of law other than the APA.
§ 120.515, Fla. Stat. (2012) (“This chapter provides uniform procedures for the
exercise of specified authority.” (emphasis added)).
When a statutorily created agency enforces a rule promulgated pursuant to its
statutory authority, and the enforcement of that rule against a party requires a hearing
under the APA, it was the statute under which the rule was promulgated that granted
the agency the power to promulgate and enforce the rule, not the APA. The APA
governs the agency’s exercise of its authority to promulgate and enforce the rule, but
the power to promulgate and enforce the rule is derived from the statute that
authorized the agency to promulgate and enforce the rule. Thus, even if the
Commission had the power to and did “adopt the APA” to govern the administrative
proceeding conducted in this case such that the proceeding was conducted pursuant
to the APA, the APA still would not grant us jurisdiction over this appeal because
the Commission’s power to take action in this case was derived from the Florida
14 Constitution and the Commission’s final action, therefore, was not “final agency
action” for purposes of section 120.68.
Because there is no general law prescribing this court jurisdiction over a direct
appeal of the administrative action taken by the Commission in this case, we lack
jurisdiction to decide this appeal.
II. Appropriate Remedy and Forum
While we lack jurisdiction to decide a direct appeal of the Commission’s Final
Order, that does not end our analysis. Florida Rule of Appellate Procedure 9.040(c)
states that “[i]f a party seeks an improper remedy, the cause must be treated as if the
proper remedy had been sought.” Rule 9.040(b)(1) states that “[i]f a proceeding is
commenced in an inappropriate court, that court will transfer the cause to an
appropriate court.” Therefore, we must determine if Lightsey could have sought a
different remedy other than a direct appeal and, if so, what was the appropriate court
in which Lightsey should have sought that remedy.
The Florida Constitution gives both district courts and circuit courts the power
to issue writs of certiorari. Art. V, § 4(b)(3), Fla. Const. (“A district court of appeal
may issue writs of mandamus, certiorari, prohibition, quo warranto, and other writs
necessary to the complete exercise of its jurisdiction.”); Art. V, § 5(b), Fla. Const.
(Circuit courts “shall have the power to issue writs of mandamus, quo warranto,
15 certiorari, prohibition and habeas corpus, and all writs necessary or proper to the
complete exercise of their jurisdiction.”).
The power vested by Article V in district courts and circuit courts to issue
writs of certiorari includes the authority to issue writs of certiorari as this power
existed in courts in the common law. See G-W Dev. Corp. v. Vill. of N. Palm Beach
Zoning Bd. of Adjustment, 317 So. 2d 828, 829-30 (Fla. 4th DCA 1975); see
generally Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 525-28 (Fla. 1995).
Florida Rule of Appellate Procedure 9.030 explicitly recognizes the power of district
courts and circuit courts to issue common law writs of certiorari, as distinct from
their authority to issue writs of certiorari in other circumstances set forth in the rules
promulgated by the Florida Supreme Court. As to district courts, Rule 9.030(b)(2),
entitled “Certiorari Jurisdiction,” provides that “[t]he certiorari jurisdiction of
district courts of appeal may be sought to review . . . nonfinal orders of lower
tribunals other than as prescribed by rule 9.130 . . . or . . . final orders of circuit courts
acting in their review capacity.” Rule 9.030(b)(3), entitled “Original Jurisdiction,”
then provides that “[d]istrict courts of appeal may issue writs of mandamus,
prohibition, quo warranto, and common law certiorari, and all writs necessary to the
complete exercise of the courts’ jurisdiction.” (emphasis added). Similarly, Rule
9.030(c), entitled “Certiorari Jurisdiction,” provides that “the certiorari jurisdiction
of circuit courts may be sought to review nonfinal orders of lower tribunals other
16 than as prescribed by rule 9.130.” Rule 9.030(c)(3), entitled “Original Jurisdiction,”
then provides that “[c]ircuit courts may issue writs of mandamus, prohibition, quo
warranto, common law certiorari, and habeas corpus, and all writs necessary to the
complete exercise of the courts’ jurisdiction.” (emphasis added).
“[T]he English common-law writ of certiorari was an original writ issuing out
of chancery or the King’s Bench, directing that an inferior tribunal return the record
of a pending cause so that the higher court could review the proceedings.” Haines
City Cmty. Dev., 658 So. 2d at 525 (citing George E. Harris, A Treatise on the Law
of Certiorari § 1 (1893)). In more modern use, common law certiorari has been
described as a writ issued by an appellate court to a lower court in cases where an
appeal was unavailable to direct that the record of the lower court be provided for
review to the appellate court to determine whether the lower court has exceeded its
jurisdiction or not proceeded according to law. Haines City Cmty. Dev., 658 So. 2d
at 525 (citing 3 Fla.Jur.2d Appellate Review § 456 (1978)).
The Florida Supreme Court has stated multiple times that a common law writ
of certiorari is available to obtain review of quasi-judicial action of an administrative
agency where no other method of appeal is available. See, e.g., Codomo v. Shaw, 99
So. 2d 849, 852 (Fla. 1958); De Groot v. Sheffield, 95 So. 2d 912, 915-16 (Fla. 1957);
State ex rel. Landis v. Simmons, 140 So. 187, 190 (Fla. 1932); Haines City Cmty.
Dev., 658 So. 2d at 530; see also G-W Dev., 317 So. 2d at 829-30. Florida Rule of
17 Appellate Procedure 9.190(b)(3) expressly recognizes that certiorari is the
appropriate remedy to review quasi-judicial action of an administrative agency
where no other method of appeal is available. Fla. R. App. P. 9.190(b)(3) (“Review
of quasi-judicial decisions of any administrative body, agency, board, or commission
not subject to the Administrative Procedure Act must be commenced by filing a
petition for certiorari in accordance with rules 9.100(b) and (c), unless judicial
review by appeal is provided by general law.”); see also Decker, 85 So. 3d at 574.
Based on the foregoing, we conclude that Lightsey’s remedy in this case is to
seek review of the Commission’s Final Order by writ of certiorari. However, as
explained above, both district courts and circuit courts have the power to issue
common law writs of certiorari. Therefore, we must determine which court was the
appropriate court in which Lightsey should have sought certiorari review. We
conclude that circuit court was the appropriate forum.
The Florida Supreme Court appears to have approved the filing of petitions to
review administrative action of state agencies in circuit court. For example, the
Florida Supreme Court has held that a petition for mandamus is an acceptable
remedy for a prisoner seeking review of an order of the Florida Parole Commission.
Sheley v. Florida Parole Comm’n, 720 So. 2d 216, 217 (Fla. 1998) (citing Griffith
v. Florida Parole and Probation Comm’n, 485 So. 2d 818 (Fla. 1986)). In making
that holding, the Florida Supreme Court stated that “[s]uch petitions are properly
18 directed to the circuit courts.” Id. at 217. Additionally, in the case of local
administrative action, the Florida Supreme Court has held that “a final administrative
decision by a local administrative body is initially reviewable by certiorari to the
circuit court.” Decker, 85 So. 3d at 574 (citing Haines City Cmty. Dev., 658 So. 2d
at 530); see also Sheley v. Florida Parole Comm’n, 703 So. 2d 1202, 1206 (Fla. 1st
DCA 1997), approved, 720 So. 2d 216 (Fla. 1998). While neither of these examples
is precisely on point – mandamus9 is not certiorari and a local agency is not a state
agency – we find them to be analogous and the best guidance that we have from the
Florida Supreme Court.
We also note that in a case in which the Florida Supreme Court determined
that both it and a circuit court possessed jurisdiction over a petition for writ of
certiorari to review administrative action, the Court stated that “[a]s a matter of
judicial administration, this court will not ordinarily issue the writ of certiorari to
review the rulings of an administrative board so long as a court of inferior
jurisdiction is empowered to issue it.”10 Nat’l Dairy Prods. Corp. v. Odham, 100 So.
2d 394, 395 (Fla. 1958). Heeding the Supreme Court’s example, if we did possess
concurrent jurisdiction with a circuit court over a petition for writ of certiorari, we
9 The First District noted in its Sheley opinion that certioriari, and not mandamus, may in fact be the more appropriate remedy for an inmate challenging the merits of an order of the Florida Parole Commission. 703 So. 2d at 1205, n.2. 10 In National Dairy Products Corp., the Florida Supreme Court construed a prior version of the Florida Constitution. 19 would find it appropriate to decline such jurisdiction in favor of the circuit court.
For one reason, the circuit court’s decision on the petition will be reviewable by a
district court on second-tier certiorari review, Fla. R. App. P. 9.030(b)(2)(B), while
our decision on the petition would not be reviewable by the Florida Supreme Court
unless one of the more limited bases for that Court’s jurisdiction were satisfied. Fla.
R. App. P. 9.030(a).
For these reasons, we hold that where a party seeks certiorari review of
administrative action of the Commission acting pursuant to its constitutional
authority, the appropriate court in which to seek such review is circuit court.
We note that the First District faced an essentially identical question in
Decker. In that case, a student sought judicial review in the First District Court of
Appeal under the APA of an order entered by the University of West Florida (the
“University”). Decker, 85 So. 3d at 573. Similar to this case, the First District found
that the University was acting pursuant to its constitutional authority and that,
therefore, the University was not an “agency” under the APA and the court lacked
jurisdiction over a direct appeal of the University’s order. Id. at 573. Also like us,
the court determined that certiorari was the appropriate remedy and that both district
courts and circuit courts possess the power to issue writs of certiorari. Id. at 574.
The court then considered which court was the appropriate forum for seeking
certiorari review and concluded that circuit court was the appropriate forum. Id.
20 Both this case and Decker involved the question of the proper court in which
a party should seek certiorari review of quasi-judicial administrative action of a state
constitutional entity that is not an “agency” under the APA. The only difference
between Decker and this case is the entity involved – a University in Decker and the
Commission in our case. Thus, we join the First District in concluding that where a
party seeks certiorari review of quasi-judicial administrative action of a state
constitutional entity that is not subject to the APA, the proper court in which to seek
such review is the circuit court.
Conclusion
The Florida Constitution grants district courts jurisdiction over direct appeals
of administrative action when “prescribed by general law.” Art. V, § 4(b)(2), Fla.
Const. There is no general law granting this court jurisdiction over a direct appeal
of the administrative action taken by the Commission in this case. The APA, by its
plain terms, does not grant us jurisdiction over this action because the Commission,
when acting pursuant to constitutional authority, is not an “agency” and its actions
are not “agency action” as defined by the APA.
The Commission has adopted procedures that incorporate the language of the
APA, but the Commission’s procedures are just that – the Commission’s procedures.
The Commission’s procedures are not general law and cannot grant us jurisdiction
over a direct appeal of administrative action. Additionally, even if the Commission
21 had the power to and did “adopt the APA” to govern the procedures of the
administrative proceeding conducted in this case, it was still the Constitution, not
the APA, that granted the Commission the power that it exercised in enforcing the
Fencing Rule. Therefore, even if the Commission was acting pursuant to the APA
in conducting the administrative proceeding at issue in this case, the APA still would
not grant us jurisdiction over this appeal.
However, as explained above, Rule 9.040(c) of the Florida Rules of Appellate
Procedure provides that “[i]f a party seeks an improper remedy, the cause shall be
treated as if the proper remedy had been sought,” and Rule 9.040(b)(1) states that
“[i]f a proceeding is commenced in an inappropriate court, that court shall transfer
the cause to an appropriate court.” Applying these two rules, we treat the notice of
appeal, which was timely filed with the agency clerk, as a petition for writ of
certiorari and transfer the petition to the Circuit Court of Ninth Judicial Circuit in
and for Osceola County, which is the county in which Lightsey’s hunting preserve
is located.11 § 47.011, Fla. Stat.
PETITION TRANSFERRED.
GANNAM and BROWNLEE, JJ., concur.
11 By our transfer of this case to the Ninth Judicial Circuit Court in Osceola County, we express no view regarding whether once there the Commission may invoke the home venue privilege to transfer the case to the county in which the Commission maintains its headquarters. If the Commission attempts to invoke the home venue privilege, the circuit court may decide that issue in the first instance. 22 Diane Buerger, Victor R. Smith, and Michael E. Raiden, of Victor R. Smith Law Group, P.A., Winter Haven, for Appellant.
Bridget K. McDonnell, Assistant General Counsel, and Joseph Meyer, Assistant General Counsel, of Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED