# Third District Court of Appeal

State of Florida

Opinion filed December 26, 2018. Not final until disposition of timely filed motion for rehearin g.

________________ 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 Revi ew Committee of the Florida Department of Business and Professional Regulati on. 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, M aurer & Maynard, P.A., and Thomas F. Panza and Jennifer K. Graner (Fort Lauderda le), for FloridaCaribbean Cruise Association; Marlene K. Stern and Clark Jennin gs, Assistant Attorneys General (Tallahassee), for Pilotage Rate Review Commi ttee, for respondents. Before SALTER, SCALES and LINDSEY, JJ. SCALES, J.2 Petitioners FRS-Fast Reliable Seaway, LLC., Antillean Marine S hipping, Corp., Betty K Agencies (USA), L.L.C., God Is Able Shipping, LL C, and River Terminal Services, Inc. (collectively, “Petitioners”) challenge , via petition for writ of certiorari, a final order rendered by respondent Pilotage Ra te Review Committee (“the Committee”), a committee of the Board of Pilot Commission ers of the State of Florida (“Board”). Because we lack jurisdiction under Florida R ule 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 act ion in the Circuit

Court.

I. Parties Respondent Board is a division of Florida’s Department of Busi ness and Professional Regulation. The duties of the ten-member Board are described in chapter 310 of the Florida Statutes. Primarily, the Board deter mines the number of pilots necessary for efficient piloting services in each port a nd disciplines pilots for misconduct and other violations of duty or law. See §§ 310.061, 310.101, Fla. Stat. (2017).3 Pursuant to section 310.151 of the Florida Statutes, the legis lature established the Committee to set pilotage rates at the various ports within the state of Florida. This seven-member Committee establishes the rates that pilots 1 may charge for piloting vessels in and out of Florida’s various ports. Any pil ot 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. St at. (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 B ay Pilots, Inc. (“Pilots”) is an association of harbor pilots who perform pilot age services at

PortMiami. Petitioners are five individual shipping companies working with in 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 Commi ttee 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 co mpeting 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).4 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 s urcharges. The applications of Association and Pilots eventually were consolid ated 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 sect ion 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 o r by certified mail, that the committee intends to modify the pilota ge rates in that port and that the applicant may, within 21 days after r eceipt of the notice, request a hearing pursuant to the Administrative Pr ocedure 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 r ate change in the affected port area. Within 21 days after receipt or publication of notice, any person whose substantial interests w ill 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 ma terial fact, the committee shall designate a hearing, which shall be conduct ed by formal proceeding before an administrative law judge assigned b y the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57(1), unless waived by all parties. If the committee concl udes 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 r equest a hearing within 21 days after receipt or publication of notice s hall constitute a waiver of any right to an administrative hearing a nd shall cause the order modifying the pilotage rates in that port to be entered.5 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 prov ision, both Association and Pilots requested that a hearing be conducted be fore an administrative law judge (ALJ) designated by the Division of Ad ministrative Hearings. The Committee concluded that the hearing requests rai sed disputed issues of material fact, thus necessitating a formal hearing by the AL J. 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 p roceed with its statutory obligations under section 310.151(4)(a). After relinq uishment, the

If an administrative hearing is requested pursuant to this subs ection, notice of the time, date, and location of the hearing shall be published in the Florida Administrative Register and in a newspaper of ge neral circulation in the affected port area and shall be mailed to th e 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 jurisd iction 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 Septem ber 21, 2017 NOI to be ineffective.6 Committee, on January 30, 2018, then issued a corrected NOI to address the infirmities of the September 21, 2017 NOI. The Committee’s corr ected NOI did not yield a renewed round of administrative review. In fact, no hea ring request was filed by any party after the Committee’s issuance of the corrected NO I. Instead, Association and Pilots entered into settlement negotiations. Ag ain, Petitioners did not object to the rates noticed in the January 30, 2018 correct ed NOI, so they did not request an administrative hearing. Association and Pilots reached a tentative settlement agreemen t, 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 ad opted 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, whi ch included the Committee’s agenda, referred to a discussion item related to th e 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, no r did the meeting notice contain the NOI formalities required by section 310.151( 4)(a).7 Petitioners assert that they were denied due process because, in adopting the increased pilotage rates in the May 9, 2018 final order, the Co mmittee 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 thi s Court should not review the merits of the petition. First, Respondent s assert that ratemaking is a legislative function, and therefore is not subject to certiorari review. Second, Respondents assert that, because Petitioners never soug ht an administrative hearing challenging the rates re-noticed in the January 30, 201 8 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 initia lly must decide whether, under the facts of this case, we have jurisdiction to adjudicate a petition seeking certiorari review of a final administrative order. Gene rally, 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 stand ing to seek judicial8 review under Florida’s Administrative Procedures Act (“APA”), w e 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 f rom 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 provi sions 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’ certi orari 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 prescrib ed by rule 9.130;[ 5 ] (B) final orders of circuit courts acting in their review capa city.

(Footnote omitted). Rule 9.030(b)(2)(A) expressly contemplates district courts exe rcising 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 b e reviewed by direct appeal. Fla. R. App. P. 9.130(3).9 does not provide for a district court exercising such jurisdict ion to review a final order of an administrative agency. Petitioners have provided us with no authority authorizing such review, and our research similarly has uncover ed no authority that would expand rule 9.030(b)(2)(A)’s scope to include review of f inal orders of administrative agencies subject to the APA. We decline Petition er’s invitation to expand the scope of our certiorari jurisdiction to review the C ommittee’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 b y 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 distric t where the agency maintains its headquarters or where a party resides or a s otherwise provided by law. All proceedings shall be instituted by filing a notice of appeal or petition for review in accordance with th e 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 pro ceedings consistent with the court's decision or set aside agency action , as appropriate, when it finds that:10 . . . . (c) The fairness of the proceedings or the correctness of the a ction may have been impaired by a material error in procedure or a failur e to follow prescribed procedure . . . § 120.68(1)(a), (2)(a), (7)(c), Fla. Stat. (2017) (emphasis sup plied).

The statute provides express jurisdictional authority for a di strict 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, thou gh, by the express terms of the statute, only a “party” may invoke such jurisdicti on. § 120.68(1)(a), Fla. Stat. (2017). Section 120.52(13) of the Florida Statutes defines a “party” f or 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 p articipate in whole or in part in the proceeding, or whose substantial intere sts will be affected by proposed agency action, and who makes an appeara nce 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

.11 An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eli gible 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 1 228. Petitioners assert that, in response to the NOIs, they did not request an administrative hearing because they had no quarrel with the not iced rates. Petitioners argue that it would be absurd to challenge proposed agency acti on – that they support – simply to achieve “party” status under the APA. Petitioners f urther assert, without citation to authority, that we should exercise common law certi orari jurisdiction and reach the merits in this case because the impediment to Petitio ners’ 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 administr ative process in derogation of section 310.151(4)(a)’s notice requirements. Whil e we are not unsympathetic to Petitioners’ arguments in this regard, we neve rtheless are constrained by the plain and unambiguous text of the statute, s ection 120.68(1)(a), and cannot graft an exception onto the statute out of some amor phous sense of12 fairness. 6 In sum, Petitioners are not “parties” as defined in the APA; t herefore, Petitioners lack standing to seek review of the Committee’s fin al order under section

120.68.

IV. Conclusion We lack certiorari jurisdiction to review the Committee’s fina l order; and, because no Petitioner is a “party” under the APA, Petitioners l ack standing to assert a challenge to the final order under section 120.68. We, theref ore, 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 C ommittee’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 suc h action.