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 FloridaCaribbean 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. 
 2 

 

 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). 
 3 

 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). 
 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 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. 
 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 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. 
 6 

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 

request an administrative hearing. 

 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). 
 7 

 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 ratemaking 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 
 8 

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). 
 9 

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: 
 10

 . . . . 

(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.
 11

 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 
 12

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.