FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-2940 

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C&S WHOLESALE GROCERS, INC.,

Appellant,

v.

STATE OF FLORIDA, DEPARTMENT 

OF BUSINESS AND PROFESSIONAL 

REGULATION, DIVISION OF 

ALCOHOLIC BEVERAGES AND 

TOBACCO,

Appellee.

_____________________________

On appeal from the Division of Alcoholic Beverages and Tobacco.

Sterling Whisenhunt, Director.

December 13, 2023

PER CURIAM.

C&S Wholesale Grocers, Inc. (C&S), seeks review of a final 

order from the Department of Business and Professional 

Regulation, Division of Alcoholic Beverages and Tobacco (the 

Division) dismissing its petitions for administrative hearing with 

prejudice. We reverse the portion of the order dismissing the initial 

petition, affirm the portion of the order dismissing the amended 

petition, and remand for further proceedings as discussed herein.

Facts
2

C&S, a large out-of-state grocery wholesaler, distributes 

tobacco products in Florida. Its Florida operations require C&S to 

collect and remit Florida other tobacco products excise taxes and 

surcharges (OTP taxes). See §§ 210.30(1) & 210.276(1), Fla. Stat. 

C&S requested a tax refund for OTP taxes it paid between August 

2013 and June 2015 (the refund claim).

On August 14, 2015, the Division denied the refund claim. The 

denial letter notified C&S that under section 72.011, Florida 

Statutes, it had sixty days within which to contest the denial via 

an administrative or judicial proceeding. 

On October 13, 2015, C&S filed a petition for formal 

administrative hearing with the Division (the initial petition). The 

parties agree the initial petition was timely. The second paragraph 

of the petition stated:

[C&S] respectfully requests that this Petition be held in 

the Office of General Counsel to the Department and not 

forwarded to the Department of Administrative Hearings 

as there is a substantially similar case (e.g., facts and

claims) pending before Florida’s Ninth Judicial Circuit 

Court that will be dispositive of the matter once a final 

ruling has been made.

The initial petition noted the refund claim was identical to that

presented in the Ninth Judicial Circuit case, to wit, that the taxes

violate the Commerce and Equal Protection clauses of the United 

States Constitution.1

1 C&S also raised Commerce Clause and Equal Protection 

challenges to cigarette taxes under sections 210.011 and 210.02(1), 

Florida Statutes, in a separate circuit court case specific to refund 

years 2016–2019. The final judgment on the pleadings denied the 

constitutional challenges. C&S appealed that case to this Court in 

case number 1D2022-3040. A per curiam affirmance opinion issued 

on August 23, 2023. 
3

The Division admits it did not acknowledge, respond to, or rule

on the initial petition. Likewise, C&S admits it did not update its 

hold request or take action to compel the Division to rule. As a 

result, the initial petition languished with the Division for years. 

A little over four years later, on February 28, 2020, C&S filed 

a first amended petition for formal administrative hearing (the 

amended petition). Count one added a new, independent basis for 

refund under a 2012 Second District Court of Appeal decision. 

Count two reasserted the constitutional arguments from the initial 

petition.2 The amended petition again languished with the 

Division for years.

Finally, almost seven years after the initial petition and over 

two years after the amended petition, on August 29, 2022, the 

Division filed a final order dismissing the petitions with prejudice 

(the final order).3 The final order concluded the initial petition was 

“insufficient” and the amended petition was barred by the sixtyday jurisdictional window in section 72.011. The final order stated:

The [initial petition] cannot be indefinitely held while 

waiting on an indeterminate outcome in an unrelated 

case. The [amended petition], filed outside the 60-day 

statutory requirement pursuant to section 72.011, F.S., 

cannot cure any initial petition deficiencies nor include 

an additional independent basis first asserted years after 

the Division’s refund denial.

The Division concluded neither it nor the Division of 

Administrative Hearings had jurisdiction to consider the refund 

denial after sixty days such that dismissal with prejudice was 

warranted.

2 The related Ninth Judicial Circuit case was voluntarily 

dismissed in August 2019.

3 The final order is titled as denying the petitions, but in fact, 

dismisses both petitions with prejudice.
4

C&S seeks review of the final order pursuant to section 

120.68, Florida Statutes. Our review is de novo. Save Our Creeks 

v. State of Fla. Fish & Wildlife Conser. Comm’n, 112 So. 3d 128, 

130 (Fla. 1st DCA 2013).

The unique procedural posture of this case raises two issues 

for discussion: (I) What duty did the Division have to act on the 

petitions, irrespective of any hold request from C&S, and (II) can

the amended petition relate back to the timely filed initial petition. 

I.

The Division’s letter notified C&S of its right to challenge the 

refund denial. C&S attempted to exercise that right by filing a 

timely petition for formal administrative hearing with the 

Division. Under the Administrative Procedure Act, chapter 120, 

Florida Statutes, the Division had fifteen days within which to rule 

on the petition. § 120.569(2)(a), Fla. Stat. (a request for a hearing 

shall be granted or denied within fifteen days after receipt); § 

120.569(2)(c), Fla. Stat. (“The agency shall promptly give written 

notice to all parties of the action taken on the petition, shall state 

with particularity its reasons if the petition is not granted, and 

shall state the deadline for filing an amended petition if 

applicable.”). An agency has a statutory mandate to act on a 

request for hearing. See Failer v. State, Dep’t of Health, 139 So. 3d 

359, 362 (Fla. 1st DCA 2014) (recognizing an agency “must” grant 

or deny a request for hearing within fifteen days); Simmons v. 

State, Ag. for Health Care Admin., 950 So. 2d 431 (Fla. 1st DCA 

2007) (“An agency is not entitled to ignore a properly filed request 

for hearing, and if it determines that the petitioner is not entitled 

to a hearing, it is obligated to issue an order to that effect.”).4 The 

Division eschewed this statutory mandate when it took no action 

for almost seven years. We recognize that C&S is not blameless,

4 It is worth mentioning that Simmons involved a petition for 

writ of mandamus to compel the agency to rule on a petition for 

formal administrative hearing. 950 So. 2d at 432. Had C&S truly 

been concerned that the Division was depriving it of due process, 

C&S could have filed a mandamus petition to compel a ruling. It 

did not.
5

but we disagree that C&S could have invited the error where the 

Division had a duty to act. Cf. Salam v. Bd. of Prof’l Eng’rs, 946 

So. 2d 48, 49 (Fla. 1st DCA 2006) (granting attorney’s fees on a 

mandamus petition after finding the agency’s four-month delay in 

ruling on Salam’s petition for formal hearing constituted a “gross 

abuse justifying an award of attorney’s fees” and stating, “A 

citizen’s rights under the Florida Statutes must be taken seriously 

by the State’s agencies and handled expeditiously.”). The 

Division’s inaction deprived C&S of a point of entry to challenge 

its refund denial. 

A.

The Division asks us to affirm under the harmless error 

standard. See Chrysler v. Dep’t of Prof’l Reg., 627 So. 2d 31, 34–35 

(Fla. 1st DCA 1993) (“An error is harmful where there is a 

reasonable probability a different result would have been reached 

but for the error committed.”). The Division now asserts there is 

no reasonable probability of a different result because both it and 

the Division of Administrative Hearings lack jurisdiction to 

consider the merits of C&S’s constitutional claims. 

Irrespective of the hold request, it is difficult to understand 

why the Division needed almost seven years to determine the 

initial petition was “insufficient.” The Division is correct that 

agencies and administrative law judges have no authority to 

declare statutes or existing rules unconstitutional. See Palm 

Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249, 250 (Fla. 

1987) (“[I]t is axiomatic that an administrative agency has no 

power to declare a statute void or otherwise unenforceable.”). 

However, that does not mean the Division could dismiss the initial 

petition with prejudice. In Key Haven Associated Enterprises, Inc. 

v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 

2d 153, 157 (Fla. 1982), the Florida Supreme Court acknowledged 

that a challenge to the facial constitutionality of a statute 

authorizing agency action may be made in one of two ways — by 

seeking a declaratory judgment in circuit court or by completing 

the administrative process and seeking direct review of the facial 

unconstitutionality in the district court under section 120.68. That 

is to say, C&S had a right to a section 120.57 proceeding to make 

its arguments and a record even though the merits of its 
6

constitutional challenge could not be considered in the 

administrative context. We decline to find the Division’s almost 

seven-year delay harmless.

While C&S is not blameless, the Division failed to follow the 

mandate of section 120.569 and deprived C&S of due process when 

it dismissed the initial petition without providing an opportunity 

to be heard under section 120.57. We reverse the portion of the 

final order dismissing the initial petition.

II.

That leaves the amended petition. We agree with the Division 

in this regard. It had no jurisdiction to consider Count one of the 

amended petition because the jurisdictional statute of nonclaim 

expired. 

Section 72.011(2)(a) prohibits filing an action to contest the 

denial of a refund more than sixty days after the date the denial 

becomes final. In this case, that date was October 13, 2015. C&S’s 

initial petition was filed just in time – on the sixtieth day. The 

amended petition was not filed until years later.

The sixty-day window in section 72.011(2)(a) is jurisdictional. 

§ 72.011(5), Fla. Stat. With the addition of subsection (5), the 

legislature clearly meant this to be a jurisdictional statute of 

nonclaim. See Dep’t of Rev. v. Rudd, 545 So. 2d 369, 371 (Fla. 1st 

DCA 1989); Am. Heritage Window Fashions, LLC v. Dep’t of Rev., 

191 So. 3d 516, 522 (Fla. 2d DCA 2016). Jurisdictional statutes of 

nonclaim are distinct in that they operate to deprive a court of the 

power to adjudicate an untimely claim. See Tampa Port Auth. v. 

Henriquez, 48 Fla. L. Weekly D1358 *5 (Fla. 2d DCA July 7, 2023)

(citing Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1253 

(Fla. 5th DCA 2010)). The Division is correct that neither it nor the 

Division of Administrative Hearings had jurisdiction to consider 

the amended petition that was filed well outside the jurisdictional 

nonclaim period.

C&S argues a version of the “relation back doctrine” should 

apply to liberally permit its amendment to the initial petition. We 

agree that Florida Rule of Administrative Procedure 28-106.202 
7

permits amendment. The “relation back doctrine” generally allows 

an amended pleading to relate back to the date of the original 

pleading for limitations purposes. See Fla. R. Civ. P. 1.190(c); 

Smith v. Bruster, 151 So. 3d 511, 515 (Fla. 1st DCA 2014) 

(recognizing the relation back doctrine should be liberally 

construed and applied). The problem for C&S here is the statute of 

nonclaim. A nonclaim statute is distinct from a statute of 

limitation in that it deprives a court of jurisdiction to entertain a 

claim filed after the nonclaim period. See Gulf Marine Repair Corp. 

v. Henriquez, 48 Fla. L. Weekly D1363 *9–*10 (Fla. 2d DCA July 

7, 2023) (discussing the application of the relation back doctrine in 

statute of limitation and highlighting that the relevant statute was 

not a jurisdictional nonclaim statute that would prevent 

application of the doctrine) (citing Wilkinson v. Reese, 540 So. 2d 

141, 143 (Fla. 2d DCA 1989)). 

The Division correctly dismissed the amended petition with 

prejudice as the expiration of the nonclaim period was a 

jurisdictional defect that could not be cured. See Merrick Park, 

LLC v. Garcia, 299 So. 3d 1096, 1103 (Fla. 3d DCA 2019) (affirming 

dismissal of Count II of Second Amended Counterclaim where the 

trial court could not acquire jurisdiction through the relation back 

doctrine due to the nonclaim statute); Taylor v. City of Lake Worth, 

964 So. 2d 243, 244 (Fla. 4th DCA 2007) (concluding circuit court 

lacked jurisdiction to consider an amended pleading that was filed 

after the nonclaim period expired). We affirm the portion of the 

final order dismissing the amended petition with prejudice.

III.

Pursuant to section 120.68(6)(a)1., Florida Statutes, we 

reverse the portion of the final order dismissing the initial petition. 

We affirm the portion of the final order dismissing the amended 

petition with prejudice. The case is remanded to the Division with 

instructions to conduct a hearing under section 120.57.

REVERSED in part, AFFIRMED in part, and REMANDED.

ROBERTS, KELSEY, and WINOKUR, JJ., concur.
8

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Kristen M. Fiore and J. Riley Davis, Akerman LLP, Tallahassee; 

Michael J. Bowen, Akerman LLP, Jacksonville, for Appellant.

Jake Whealdon, General Counsel, Brooke Elizabeth Adams, Chief 

Appellate Counsel, and Jett Lee Baumann, Chief Legal Counsel,

Tallahassee, for Appellee.