BISCAYNE BAY PILOTS, INC.,

Petitioner,

v.

FLORIDA CARIBBEAN-CRUISE 

ASSOCIATION,

Respondent.

___________________________/

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D14-3974

Opinion filed April 8, 2015.

Petition for Writ of Prohibition -- Original jurisdiction.

Donna E. Blanton of Radey Law Firm, Tallahassee; Robert Peltz of The Peltz Law 

Firm, Miami, for Petitioner.

Thomas F. Panza of Panza, Maurer & Maynard, P.A, Ft. Lauderdale, for Respondent 

Florida Caribbean-Cruise Association.

Pamela Jo Bondi, Attorney General, and Marlene K. Stern, Assistant Attorney General, 

Tallahassee, for Pilotage Rate Review Committee.

WETHERELL, J.

Biscayne Bay Pilots, Inc. (Pilots) filed a petition for writ of prohibition to review 

the order entered by the Pilotage Rate Review Committee (Committee) denying the 
Pilots’ motion to disqualify two members of the Committee from participating in the 

proceeding initiated by the Florida Caribbean-Cruise Association (Cruise Association) 

to reduce certain pilotage rates. We deny the petition for the reasons that follow.

Factual and Procedural Background

The Committee is a collegial body comprised of seven members of the Board of 

Pilot Commissioners, including cruise line executives Thomas Burke and Enrique 

Miguez.

1

 The Committee is an “agency head” for purposes of the Administrative 

Procedure Act (APA) because it is responsible for taking final agency action on 

applications to change pilotage rates. See § 310.151(4)(a), Fla. Stat. (2014).

The Cruise Association2 initiated the underlying proceeding by filing an 

application with the Committee for a 25% reduction in the pilotage rates for 

commercial passenger cruise ships in PortMiami. The Committee investigated the 

application and set the matter for a public hearing. See § 310.151(3), Fla. Stat. (2014); 

Fla. Admin. Code R. 61G14-22.007.

1

 Commissioner Burke is the vice president of risk management for Royal Caribbean

cruise line, and Commissioner Miguez is the vice president and deputy general counsel 

for Carnival cruise line. 2

 Although the Cruise Association is the named party in the underlying proceeding, the 

cruise lines that are members of the association (including Royal Caribbean and 

Carnival) are the de facto parties because section 310.151(2), Florida Statutes, only 

allows groups whose “substantial interests are directly affected by the rates set by the 

committee” to apply for a rate change and Florida Homebuilders Association v. 

Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982), and its 

progeny make clear that a trade association’s standing to participate in an 

administrative proceeding is based on the fact that its members’ substantial interests 

2

 
Prior to the public hearing, the Pilotsfiled a motion to disqualify Commissioners 

Burke and Miguez from participating in the proceeding on the Cruise Association’s 

application for a rate reduction. The legal basis for the motion was section 120.665, 

Florida Statutes, which provides in pertinent part: 

any individual serving alone or with others as an agency head may be 

disqualified from serving in an agency proceeding for bias, prejudice, or 

interest when any party to the agency proceeding shows just cause by a 

suggestion filed within a reasonable period of time prior to the agency 

proceeding. If the disqualified individual was appointed, the appointing 

power may appoint a substitute to serve in the matter from which the 

individual is disqualified. . . . However, if a quorum remains after the 

individual is disqualified, it shall not be necessary to appoint a substitute. 

§ 120.665(1), Fla. Stat. (2014).

The motion asserted that Commissioners Burke and Miguez could not be fair 

and impartial in this proceeding because their employers were members of the party

that filed the application for the rate reduction and “[n]o reasonable person would 

expect [them] to vote against the interests of their employers . . . in a proceeding that 

has the potential of saving their employers substantial amounts of money.” The Cruise 

Association filed a response in opposition to the motion, arguing that the motion was 

legally insufficient to warrant the disqualification of Commissioners Burke and Miguez

and asserting that the motion was merely an attempt to “end-run around section 

310.151’s clear requirement[3] that the [Committee] be comprised of balanced 

are being affected by the agency action at issue.

3

 See § 310.151(1)(b), Fla. Stat. (2014) (providing that the Committee is to be 

3

 
representation from the piloting and maritime industry.” (emphasis in original). 

The Committee considered the motion to disqualify at the outset of the public 

hearing on the Cruise Association’s application. After the parties presented oral 

argument, the commissioner who would later move to deny the motion to disqualify 

asked the Committee’s legal counsel if the Committee had the authority to order its 

members to disqualify themselvesfrom this proceeding, and counsel responded that, in 

his opinion, the Committee did not have the authority to do so.

4

 A brief discussion 

comprised of two licensed pilots “actively practicing their profession;” two persons 

“actively involved in a professional or business capacity” in the maritime, marine 

shipping, or commercial passenger cruise industries; one certified public accountant; 

and two citizens of the state not involved in piloting or the shipping industry).

4

 The commissioner asked: “In your opinion, does this Committee have the authority 

to compel . . . a person to recuse themselves?” The Committee’s legal counsel 

responded:

No, sir. I don’t believe you do. I’ve looked at the statutes. I don’t 

see anything that gives you that authority. I have reviewed 

120.665. I will confess that it is a provision that I am not that 

familiar with. It’s hardly ever raised and I’ve never seen it. And, as 

[counsel for the Pilots] knows, there’s only two cases in the 

District Courts out there and I’ve read them. 

It’s still essentially a case of first impression. But, with regards to 

the specific authority of this [Committee], I don’t believe that you 

would have the authority to compel an individual member to 

disqualify themselves. That being said, each member does have 

the ability to recuse themselves if they believe under these 

provisions that they cannot give an impartial decision. 

But let’s address one thing at a time. Authority to compel, no, I 

don’t believe you do. With respect to withdrawal, if the two 

commissioners wish to do so, fine. If they don’t I think it would 

4

 
followed about the Committee’s authority to rule on the motion and, then, the 

Committee voted unanimously to deny the motion. At no point during the pre-vote 

discussion amongst the commissioners and the Committee’s legal counsel were there 

any comments about the merits of the motion or its legal sufficiency. 

Immediately after the Committee voted to deny the motion, the Committee’s 

legal counsel asked Commissioners Burke and Miguez if they intended to disqualify 

themselves from this proceeding. Each commissioner responded, “No. I do not.” 

The Committee then commenced the public hearing on the merits of the Cruise 

Association’s application for a rate reduction. At the conclusion of the public hearing, 

the Committee voted 4 to 3 (with Commissioners Burke and Miguez in the majority) to 

approve the 25% rate reduction requested by the Cruise Association. The Committee 

has not yet reduced this decision to writing.

The Committee entered a written order denying the motion to disqualify several 

weeks after the public hearing. The order does not articulate the grounds upon which 

the denial was based. The Pilots promptly sought review of the order in this court by 

filing a petition for writ of prohibition. 

We initially treated the petition as one seeking review of non-final agency action 

under section 120.68(1), Florida Statutes, but, upon reflection, we conclude that 

be great for them to say very quickly they are not going to recuse 

themselves, assuming that the Committee moves not to compel the 

recusal.

5

 
prohibition is the appropriate remedy to review the order in this case. Accordingly, we 

treat the petition as it was originally filed: as a petition for writ of prohibition.

Analysis

The Pilots contend that the Committee denied the motion to disqualify on the 

merits and that the Committee’s ruling was erroneous because the motion made a 

legally sufficient5 showing of bias and prejudice under section 120.665. The 

Committee and the Cruise Association contend that the Committee did not deny the 

motion on the merits because it correctly recognized that it lacked the authority to 

disqualify its members. We agree with the Committee and the Cruise Association 

because even though the order denying the motion to disqualify does not articulate the 

ground upon which the denial was based, it is clear from the discussion preceding the 

Committee’s vote to deny the motion that the denial was based on the Committee’s 

5

 The test for legal sufficiency is

whether the facts alleged would prompt a reasonably 

prudent person to fear that they would not obtain a fair and 

impartial hearing. It is not a question of how the [agency 

head] actually feels, but what feeling resides in the movant’s 

mind and the basis for such feeling. The [agency head] may 

not pass on the truth of the allegations of fact, and 

countervailing evidence is not admissible.

Charlotte Cnty. v. IMC-Phosphates Co., 824 So. 2d 298, 300 (Fla. 1st DCA 2002)

(citations omitted). See also id. at 301 (explaining that “in any motion to recuse the 

head of an administrative agency, the practical recognition of the numerous roles 

played by the agency as well as the agency head (investigator, prosecutor, adjudicator, 

and political spokesman) must be weighed against a reasonable fear on the part of the 

6

 
view that it did not have the authority to disqualify its members. 

Accordingly, our resolution of this case turns on whether the Committee was 

correct in reasoning that it lacked the authority to rule on the merits of the Pilots’ 

motion to disqualify Commissioners Burke and Miguez. If the Committee’s reasoning 

was correct, then the petition for writ of prohibition is premature because

Commissioners Burke and Miguez have not yet6 entered orders memorializing their 

decision not to disqualify themselves. But, if we determine that the Committee’s

reasoning was incorrect, we will then have to determine whether the petition should be 

denied under the “tipsy coachman” doctrine because the Committee reached the correct 

result in denying the motion, or whether the petition should be granted because the 

motion was legally sufficient.

The parties have not cited, nor has our research located any case addressing who 

has the authority to rule on a motion to disqualify an individual serving on a collegial 

agency head: the agency head or the individual that is the subject of the motion. The 

only reported cases applying section 120.665 to agency heads involve motions to 

disqualify an individual agency head, see Charlotte Cnty., 824 So. 2d at 299-300

(secretary of the Department of Environmental Protection); Bay Bank & Trust Co. v. 

Lewis, 634 So. 2d 672 (Fla. 1st DCA 1994) (state comptroller), or the entire collegial 

movant that it will not receive a fair and impartial hearing.”).

6

 The Committee’s counsel stated at oral argument that written orders memorializing 

the commissioners’ rulings on the motion to disqualify were forthcoming.

7

 
body serving as the agency head, see Seiden v. Adams, 150 So. 3d 1215 (Fla. 4th DCA 

2014) (school board). We did locate one case that involved a motion to disqualify 

individual members of a school board under the predecessor to section 120.665 

(section 120.09, Florida Statutes (1967)), but the issue in that case was whether the 

school board was an “agency” subject to the APA, not whether the motion should be 

ruled on by the school board or the individual members whose disqualification was 

being sought. See State ex rel. Allen v. Bd. of Public Instruction of Broward Cnty., 

214 So. 2d 7 (Fla. 4th DCA 1968), approved by 219 So. 2d 430 (Fla. 1969).

Section 120.665 does not provide any guidance on the issue presented in this 

case. The statute clearly provides that individual members of a collegial agency head 

“may be disqualified,” but it begs the question: by whom? 

The uniform rules of procedure for administrative proceedings do not answer the 

question begged by the statute.

7

 The rules state that motions are to be ruled on by the 

“presiding officer,” see Fla. Admin. Code R. 28-106.204(1), but the term “presiding 

officer” is defined to include both the agency head and a “member thereof.” Fla. 

7

 We recognize that these rules technically do not apply to the proceedings held by the 

Committee thus far on the Cruise Association’s application, see Fla. Admin. Code R. 

28-106.101(2) (stating that rule chapter 28-106 “applies to all proceedings under 

Chapter 120 except . . . [a]gency investigations . . . preliminary to agency action”)

(emphasis added); however, it is appropriate to consider these rules in our analysis 

because section 120.665 prescribes the substantive grounds for disqualifying an agency 

head or member thereof from “an agency proceeding” (not just the proceedings that 

take place after preliminary agency action) and we see no reason that the procedure for 

ruling on a motion to disqualify should be different based on the stage of the 

8

 
Admin. Code R. 28-106.102. Accordingly, although the rules do not necessarily 

prohibit the collegial agency head from ruling on a motion to disqualify one of its 

members, the rules likewise do not preclude the individual who is the subject of the 

motion from ruling on the motion.

In the absence of any clear guidance in the statute, rules, or case law, we cannot 

say that the Committee erred in determining that it did not have the authority to rule on 

the merits of the Pilots’ motion to disqualify Commissioners Burke and Miguez. 

Indeed, we agree with the Committee that it did not have such authority because we see 

no reason for the collegial agency head to have any role in determining whether a 

motion to disqualify an individual member of the agency head should be granted or 

denied. Instead, we think the better procedure is for that decision to be made by the 

individual himself or herself upon review of the legal sufficiency of a timely filed 

motion challenging the individual’s “bias, prejudice, or interest.” This procedure is 

analogous to the procedure followed by appellate judges when ruling on a motion to 

disqualify: the motion is ruled on by the judge to whom the motion is directed, not the 

collegial body on which the judge serves. See In re Estate of Carlton, 378 So. 2d 1212, 

1216-17 (Fla. 1979). A procedure that allowed the collegial agency head to disqualify 

one of its members, or overrule the member’s decision not to disqualify himself or 

herself, would undermine collegiality and could infuse politics, voting alliances, or 

proceeding in which the motion is filed. 

9

 
other mischief into a decision that should be based solely on an assessment of the 

motion’s legal sufficiency.

Here, Commissioners Burke and Miguez stated in response to an inquiry from 

the Committee’s legal counsel after the Committee’s vote on the Pilots’ motion to 

disqualify that they did not intend to disqualify themselves. The commissioners’ 

statements can be construed as their oral rulings on the motion to disqualify, but those 

rulings have not yet been memorialized in a written order. Without a written order

from the individual commissioners, we do not have jurisdiction to review their 

decisions not to disqualify themselves. See Gregg v. State, 643 So. 2d 106, 107 (Fla. 

1st DCA 1994) (“[T]his court has no jurisdiction to review an oral order.”); Owens v. 

State, 579 So. 2d 311, 312 (Fla. 1st DCA 1991) (“An oral pronouncement by the trial 

court cannot be appealed.”).

Conclusion

In sum, for the reasons stated above, the petition for writ of prohibition seeking 

review of the Committee’s order denying the Pilots’ motion to disqualify 

Commissioners Burke and Miguez is denied without prejudice to the Pilots’ right to 

seek review of the written orders entered by the individual commissioners.

DENIED.

SWANSON, J., CONCURS; BENTON, J., CONCURS IN THE JUDGMENT WITH 

OPINION.

10
BENTON, J., concurring in result.

Whether viewed as a petition for writ of prohibition, or as one seeking review of 

non-final agency action—the court “initially treated the petition as one seeking review 

of non-final agency action under section 120.68(1), Florida Statutes,” ante p. 5—the 

rule of decision is that the petition should be denied, unless “review of the final agency 

decision would not provide an adequate remedy.” § 120.68(1), Fla. Stat. (2014). See

Sutton v. State, 975 So. 2d 1073, 1076 (Fla. 2008) (“A writ of prohibition is available 

only where there is no other ‘appropriate and adequate legal remedy.’” (citations 

omitted)). On this basis, I join the judgment of the court, without reaching many of the 

issues the majority opinion addresses. 

As regards the need for appellate review at this juncture, the Pilots’ contention is 

that, even if, on review of final agency action, the reviewing court agrees with them 

that Commissioners Burke and Miguez should have disqualified themselves, the 

Commissioners would by then already have been the deciding votes to put in place 

lower pilotage rates which would remain in place until administrative and judicial 

proceedings concluded, so that the difference between the current rates and the new 

rates would be irretrievably lost to them.

They do not argue this point in a vacuum. Before Governor Scott appointed 

Commissioners Burke and Miguez, the Pilots had moved for disqualification of two 

other employees of cruise companies that would benefit from a reduction in pilotage 

11
fees at the Port of Miami. Board counsel reportedly advised these gentlemen, 

Commissioners Nielsen and Fox, or “intend[ed] to strongly advise” them, that recusal 

was in order; which apparently led them to resign from the Board, creating the 

openings Governor Scott then filled (with two other cruise company employees) 

shortly before the rate hearing at which Commissioners Burke and Miguez declined to 

disqualify themselves.

In their petition, the Pilots noted that a preliminary vote had already gone against 

them and argued:

If Commissioners Burke and Miguez are permitted to 

vote on FCCA’s pending application, the pilots will be 

irreparably harmed, as section 310.151(4)(b) requires that 

any proposed agency action of the Rate Review Committee 

concerning rates becomes immediately effective, even if the 

substantially affected party seeks a hearing at the Division 

of Administrative Hearings (“DOAH”).

(Footnote omitted.) The pertinent statutory provisions do call for immediate 

implementation of rate hikes, but with an important proviso:

In any administrative proceeding pursuant to this 

section, the committee’s proposed rate determination shall 

be immediately effective and shall not be stayed during the 

administrative proceeding, provided that, pending rendition 

of the committee’s final order, the pilot or pilots in the 

subject port deposit in an interest-bearing account all 

amounts received which represent the difference between 

the previous rates and the proposed rates. The pilot or pilots 

in the subject port shall keep an accurate accounting of all 

amounts deposited, specifying by whom or on whose behalf 

such amounts were paid, and shall produce such an 

12
accounting upon request of the committee. Upon rendition 

of the committee’s final order:

1. Any amounts deposited in the interest-bearing 

account which are sustained by the final order shall be paid 

over to the pilot or pilots in the subject port, including all 

interest accrued on such funds; and

2. Any amounts deposited which exceed the rates 

sustained in the committee’s final order shall be refunded, 

with the accrued interest, to those customers from whom 

the funds were collected. Any funds that are not refunded 

after diligent effort of the pilot or pilots to do so shall be 

disbursed by the pilot or pilots as the committee shall direct. 

§ 310.151(4)(b), Fla. Stat. (2014) (emphasis added). The agency’s interpretation of the 

statute, as set out in its response to the petition, is reasonable and entitled to deference. 

The agency takes the position that the statutory prohibition against a stay does not 

apply in the event of a rate reduction:

Proposed rates only become immediately effective 

and remain so throughout the administrative proceedings if

the pilots deposit the difference between the proposed and 

existing rates in an interest bearing account. This condition 

can only be met with a rate increase. . . .

By operation of Section 310.151(4)(b), Florida 

Statutes, the decreased rates will automatically go into 

effect upon issuance of the notice of proposed agency 

action, but could be stayed during administrative 

proceedings with the filing of a motion for stay. Thus, the 

[Pilots] can prevent the alleged injury so that it will not 

persist for the remainder of the administrative proceeding 

by moving to stay the rate decrease. See § 310.151(4)(b).

The Pilots counter that, given the history of the controversy and the composition of the 

Pilotage Rate Review Committee (PRRC) and the Board, a stay is not a realistic 

possibility in the present case. 

13
The availability of an appropriate and adequate legal remedy does not, however, 

turn on speculation of this kind. Only in extraordinary and narrowly defined 

circumstances, moreover, may judicial relief be had without exhausting administrative 

remedies. Specific facts must be alleged to show that administrative remedies are 

inadequate or unavailable to cure agency error. See generally Criterion Ins. Co. v. 

State, Dep’t of Ins., 458 So. 2d 22, 26 (Fla. 1st DCA 1984); Communities Fin. Corp. v. 

Fla. Dep’t of Envtl. Regulation, 416 So. 2d 813, 816 (Fla. 1st DCA 1982); Dep’t of 

Bus. Regulation v. Provende, Inc., 399 So. 2d 1038, 1039-40 (Fla. 3d DCA 1981); 

State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So. 2d 580, 590 (Fla. 1st DCA 1977) 

(“[S]ome agency errors may be so egregious or devastating that the promised 

administrative remedy is too little or too late.”). The specific facts alleged here are 

insufficient.

Earlier in this very case, in fact, the PRRC did enter a stay that has so far kept a 

rate reduction from going into effect. On September 2, 2014, after the PRRC issued its 

written order on August 27, 2014 denying the Pilots’ motion to disqualify 

Commissioners Burke and Miguez, the Pilots filed not only their petition for a writ of 

prohibition, but also motions to stay, both with the PRRC and with this court. After 

we granted a temporary stay pending disposition of the prior motion to stay filed with 

the PRRC, the PRRC granted the Pilots’ motion to stay on October 23, 2014. There is 

no reason to believe that a similar scenario cannot recur, if necessary.

14
15