DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

FLORIDA PACE FUNDING AGENCY,

Appellant,

v.

PINELLAS COUNTY,

Appellee.

No. 2D23-985

March 27, 2024

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for 

Pinellas County; George M. Jirotka, Judge.

James C. Dinkins of CivForge Law, P.A., Orlando, and Bradley J. Ellis, 

General Counsel of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 

Sarasota; and Anthony J. Manganiello, III, of Icard, Merrill, Cullis, Timm, 

Furen & Ginsburg, P.A., Sarasota (substituted as counsel of record), for 

Appellant.

Kelly L. Vicari, Senior Assistant County Attorney, and Donald S. Crowell, 

Chief Assistant County Attorney, Pinellas County Attorney's Office, 

Clearwater, for Appellee. 

ROTHSTEIN-YOUAKIM, Judge.

Florida PACE Funding Agency (FPFA) appeals the trial court's order 

denying its motion to dismiss for improper venue. See Fla. R. App. P. 

9.130(a)(3)(A) (permitting appeal of nonfinal orders concerning venue). 

Pinellas County persuaded the court to apply the "sword-wielder" 

exception to the home venue privilege to keep this lawsuit in Pinellas 
2

County. Although we conclude that the County's claims do not trigger 

that exception, we nevertheless affirm because the forum selection clause 

in the interlocal agreement between the County and FPFA requires that 

this dispute be litigated in Pinellas County.

Background

FPFA is a local government entity created under section 163.01(7), 

Florida Statutes (2010). It finances energy conservation and hurricane 

"hardening" improvements on residential and commercial properties. 

Property owners may use FPFA financing to cover 100% of the costs for 

eligible projects, including equipment, materials, and labor. FPFA 

approves the companies that install those improvements. Section 

163.08(3) then authorizes an entity like FPFA to levy non-ad valorem 

assessments to collect the cost of those improvements from the property 

owner over time.

The County (like other counties in Florida) has used its home rule 

powers under article VIII, section 1(g), of the Florida Constitution to 

adopt consumer protection ordinances that regulate the operation of 

Property Assessed Clean Energy (PACE) local government entities such 

as FPFA. To that end, the County adopted ordinance 17-37 in 2017. 

That ordinance is codified at chapter 42, article XIV, of the Pinellas 

County Code.

Article XIV imposes important limitations on a PACE local 

government's ability to operate in Pinellas County:

 A PACE local government may operate a program only if it 

has an interlocal agreement with the County (§ 42-445).

 Only nonresidential property owners are eligible to 

participate in a PACE program in the County (§§ 42-440, 

42-447).
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 Even as to nonresidential property owners, a PACE local 

government must still comply with a series of 

requirements, including using only authorized contractors 

to perform any work, ensuring that any work complies with 

code, and utilizing materials that conform with federal and 

state standards (§ 42-446).

 A PACE local government must also provide mandatory 

notices to nonresidential property owners on a variety of 

topics, including the total amount of the debt, that the 

PACE assessment will appear on the property owner's tax 

bill, and that the PACE assessment may hinder the sale or 

refinance of the property (§ 42-446).

The interlocal agreement

Initially, FPFA recognized the County's right to regulate its 

operations. Indeed, it entered into an interlocal agreement with the 

County in 2019 that recited the following:

Whereas, the County adopted an ordinance setting minimum 

standards for the operation of any Property Assessed Clean 

Energy [program] . . . . ;

Whereas, the Agency [FPFA] intends to operate a nonresidential PACE program within Pinellas County and 

recognizes that, in addition to the limitations and 

requirements of applicable state and federal law, it must also 

comply with the limitations and requirements of the PACE 

Ordinance.

The agreement then expressly adopts those recitals: "The 'whereas 

clauses' above are true, correct, and incorporated into this agreement." 

In addition, the agreement provides that "[a]ll requirements and 

conditions as defined for the conduct of a PACE Program within the 

PACE Ordinance are in full effect as if fully laid out herein." Such 

requirements and conditions necessarily include the ordinance's 

prohibition of residential PACE financing, together with the ordinance's 

requirement that a PACE local government entity like FPFA conduct its 

program in the County under an active interlocal agreement. The 
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agreement also provides that "venue for any legal or equitable action 

involving the County arising out of or relating to this Agreement or the 

Agency or its program in Pinellas County shall be in the appropriate state 

court in and for Pinellas County." (Emphasis added.)

For a little more than two years, FPFA operated peaceably under 

the interlocal agreement. But that all changed in late 2022 after FPFA 

obtained a broad final judgment from a Leon County circuit court in a 

bond validation action.

The bond validation judgment and FPFA's

subsequent termination of the interlocal agreement

In October 2022, a circuit court in Leon County validated a series 

of FPFA bonds worth up to $5 billion. Significantly, that same judgment 

includes language that seemingly permits FPFA to finance commercial 

and residential improvements statewide, without regard to municipal or 

county ordinances that regulate PACE local governments:1

The power and authority of [FPFA] to independently engage 

and transact with private property owners, enter into 

financing agreements in the manner provided by the 

Legislature with private property owners throughout the State 

to accomplish compelling state interests and impose non-ad 

valorem assessments, issue its obligations to fund and 

finance qualifying improvements, all as provided by general 

law is separate, alternative, concurrent with, and in all 

respects independent from any other financing regime or 

program implemented by any other local government in Florida, 

unless in all respects voluntarily agreed otherwise by [FPFA] 

from time to time.

The additional supplemental authority and nonderogation 

provisions of sections 163.08(1) and (16), Florida Statutes, 

1 The County was not a named party in the bond validation action 

and contends that it had no notice of that lawsuit before the entry of the 

judgment. We express no view on whether the County is bound by the 

bond validation judgment or whether that judgment includes 

determinations that exceed the permissible scope of such a proceeding.
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(2022) relate to the authority and subject matter of the 

compelling state interest in enabling property owners to 

voluntarily finance qualifying improvements with local 

government assistance, and does not authorize regulation of 

one local government by another in the financing and non-ad 

valorem assessment process described by the Legislature

which in the instance of the Supplemental Act and its 

consensual general law authority providing for voluntary 

imposition of assessments for qualifying improvements on 

private property, is within the reserved general law domain of 

the Legislature.

The character of the Bonds and the nature of the [FPFA] 

entitle the [FPFA] to proceed in accordance with general law 

and the provisions of chapter 75, Florida Statutes, including 

the filing of the Complaint in this Court, for the purpose of 

obtaining the Court's determination of the power and 

authority of the Agency to issue the Bonds, the validity of the 

Bonds, the power and authority of the [FPFA] to independently 

and concurrently transact with property owners without 

interference or regulation from any other local government 

concerning the funding and financing of qualifying 

improvements, the imposition, collection and use of non-ad 

valorem assessments originated by the [FPFA] throughout the 

State as Pledged Revenues to repay the Bonds, and all 

matters in connection therewith.

(Emphases added.)

With the bond validation judgment in its pocket, FPFA sent a letter 

to the County on January 20, 2023, notifying the County that it was 

terminating the interlocal agreement effective March 21, 2023, and 

stating, "Henceforth, the [FPFA's] program will be conducted 

independently, and not under the Agreement." FPFA asserted that the 

"[judicial validation] process clarified that the [FPFA] has independent 

authority to carry out its mission of offering PACE financing statewide, 

without requiring additional efforts from individual counties or cities."

FPFA's termination letter went so far as to attach a copy of a 

proposed replacement interlocal agreement that, among other things, 
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stripped out any language obligating FPFA to comply with County 

ordinances. FPFA's counsel also prepared and attached to the 

termination letter a synopsis of the judgment, stating bluntly:

The [Leon County] judicial validation further clarifies that, 

because the Florida PACE Funding Agency derives its 

authority to impose assessments from state statute, it does 

not need further authority or permission from a general 

purpose local government to operate within any particular 

territory, and no local government has liability, responsibility, 

or authority relating to PACE programs of another local 

government.

Clearly satisfied that the matter was closed, FPFA financed 

improvements on at least twenty-two residential properties in 

Pinellas County between the date of the bond validation judgment 

and the effective date of the interlocal agreement's termination.

This lawsuit and the County's claims

The County subsequently brought this two-count action against 

FPFA in Pinellas County circuit court. Count one seeks declaratory relief 

and asks that the court declare that the County may enforce its PACE 

ordinance against FPFA, notwithstanding the bond validation judgment. 

Count two seeks injunctive relief and asks that the court enjoin FPFA 

from conducting any PACE business in the County unless it complies 

with the Pinellas County Code—including the Code's prohibitions on 

engaging in a PACE program without an active interlocal agreement and 

on financing residential PACE improvements. Although it does not 

assert a separate count for breach of the interlocal agreement, the 

County nevertheless alleges as a predicate to its counts that FPFA 

breached that agreement by financing residential improvements in 

violation of the Code.

The trial court's ruling on appeal
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FPFA moved to dismiss the complaint for improper venue, insisting 

that the County may only bring this lawsuit in FPFA's home venue, 

Sarasota County. The County responded that the bond validation 

judgment violated its "home rule" powers under article VIII, section 1(g), 

of the Florida Constitution. That section provides, in pertinent part, "The 

governing body of a county operating under a charter [such as the 

County] may enact county ordinances not inconsistent with general law." 

To use "sword-wielder" parlance, the County argued that FPFA is 

wielding the bond validation judgment as a "sword" against it and that 

the County's lawsuit is merely a "shield." The trial court embraced the 

County's argument and denied FPFA's motion, reasoning that the issue 

of whether the County can enforce its ordinance against FPFA 

"necessarily entail[s] a constitutional and statutory analysis of the rights 

and powers of the parties."

Although the County also invoked the interlocal agreement's broad 

forum selection clause as another reason to keep venue in Pinellas 

County, the trial court's order does not discuss this alternative ground.

Discussion

The sword-wielder exception to home venue

We discuss the sword-wielder doctrine first. Governmental 

defendants in Florida are entitled, absent waiver or exception, to "home 

venue privilege," i.e., to be sued in the county where their headquarters 

are located. Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 

363–64 (Fla. 1977) (first citing Smith v. Williams, 35 So. 2d 844 (Fla. 

1948); and then citing Ringling Bros.-Barnum & Bailey Combined Shows 

v. State, 295 So. 2d 314 (Fla. 1st DCA 1974)). Absent an exception (such 

as the sword-wielder doctrine), the home venue privilege is absolute. 

Dep't of Agric. v. Middleton, 24 So. 3d 624, 627 (Fla. 2d DCA 2009) (citing 
8

Bush v. State, 945 So. 2d 1207, 1212 (Fla. 2006)). The sword-wielder 

exception may be applicable when a plaintiff's constitutional rights are in 

"real and imminent danger" of invasion by a governmental defendant. 

Jacksonville Elec. Auth. v. Clay Cnty. Util. Auth., 802 So. 2d 1190, 1192 

(Fla. 1st DCA 2002) (quoting Barr v. Fla. Bd. of Regents, 644 So. 2d 333, 

335 (Fla. 1st DCA 1994)).

FPFA bore the initial burden of proving its entitlement to the home 

venue privilege. See Fish & Wildlife Conservation Comm'n v. Wilkinson, 

799 So. 2d 258, 260 (Fla. 2d DCA 2001). It met that burden by 

establishing, among other things, that it is a Florida governmental 

defendant based in Sarasota County. The burden then shifted to the 

County to "plead and prove" that an exception to the home venue 

privilege applied. See id. at 261. We hold that the County failed to plead 

and prove sufficient facts to trigger the sword-wielder doctrine.

"The type of constitutional invasions which have supported the 

application of the sword-wielder doctrine have been asserted by a private 

party and have been fundamental in nature." Jacksonville Elec. Auth., 

802 So. 2d at 1193. Indeed, the decisions in Florida applying this 

doctrine to defeat home venue typically involve private plaintiffs (usually 

individuals) seeking to protect fundamental constitutional rights. See, 

e.g., Pinellas County v. Baldwin, 80 So. 3d 366 (Fla. 2d DCA 2012) 

(alleging a taking of private property without compensation); Barr v. Fla. 

Bd. of Regents, 644 So. 2d 333 (Fla. 1st DCA 1994) (invoking free speech 

rights); Graham v. Vann, 394 So. 2d 178 (Fla. 1st DCA 1981) (alleging 

unconstitutional conditions of confinement); see also Sch. Bd. of Osceola 

Cnty. v. State Bd. of Educ., 903 So. 2d 963, 967 (Fla. 5th DCA 2005) 
9

("The 'sword-wielder' doctrine applies only where a state agency directly 

threatens an individual's constitutional rights.").2

The County analogizes its home rule "powers" under article VIII, 

section 1(g), to an individual's fundamental constitutional "rights." But 

that, we think, is a bridge too far, and we refuse to expand the protection 

afforded by the sword-wielder doctrine to what is essentially a showdown 

between two governmental parties.3 Further, the bond validation 

judgment purports to apply statewide; it does not single out the County's 

ordinance for special condemnation. The County, therefore, is situated 

no differently with respect to that judgment than any other county or 

municipality in Florida that lacks an interlocal agreement with FPFA. 

See Sch. Bd. of Osceola Cnty., 903 So. 2d at 967 (rejecting application of 

the sword-wielder doctrine and concluding that "[f]inally, there was no 

showing of particularized harm to OCSB separate and apart from the 

generalized harm suffered by other school boards in Florida by the 

operation or enforcement of this statute"); Worldwide Appraisal Servs. v. 

Dep't of Bus. & Pro. Regul., 905 So. 2d 968, 971 (Fla. 5th DCA 2005) 

(rejecting application of the sword-wielder doctrine and noting that "[t]he 

rules and statutes being questioned are statewide in scope").

2 Unlike the trial court and the County, we do not read School 

Board of Osceola County to say that the sword-wielder doctrine is 

implicated merely by a defendant threatening any type of constitutional 

violation in the plaintiff's chosen forum; nor do we think that reading 

consistent with the opinion. See Sch. Bd. of Osceola Cnty., 903 So. 2d at 

967.

3 We do not mean to suggest, however, that government agencies 

are categorically prohibited from invoking the sword-wielder doctrine. 

That broad legal question is not before us, and we do not purport to 

answer it.
10

Finally, it strikes us that the primary purpose of the County's 

complaint is a collateral attack on the scope of the bond validation 

judgment and that any contention by the County that FPFA is directly 

violating the County's constitutional rights is secondary at best. See Sch. 

Bd. of Osceola Cnty., 903 So. 3d at 967 ("Here, although OCSB's 

complaint alleges that the State Board's action infringed on its 

constitutional rights, the primary purpose of the lawsuit is to challenge 

the constitutionality of section 1002.33.").

Thus, we do not believe that the County met its burden to plead 

and prove the applicability of the sword-wielder doctrine. For the 

reasons that follow, however, we nevertheless affirm based on the 

interlocal agreement's broad forum selection clause.

The forum selection clause

We review de novo the application of a forum selection clause. 

TECO Barge Line, Inc. v. Hagan, 15 So. 3d 863, 865 (Fla. 2d DCA 2009) 

(citing Am. Boxing & Athletic Ass'n v. Young, 911 So. 2d 862 (Fla. 2d DCA 

2005)).

FPFA argues that it cannot be bound by the forum selection clause 

because the County has not sued for breach of the interlocal agreement, 

because none of the County's claims require that the trial court interpret 

a provision in the agreement, and because FPFA terminated the 

agreement before the County brought suit. We reject FPFA's arguments 

based on the plain language of the clause and a close review of the 

County's claims.

Absent express language in an agreement to the contrary, forum 

selection clauses are not extinguished by termination. See Baker v. 

Econ. Rsch. Servs., Inc., 242 So. 3d 450, 454 (Fla. 1st DCA 2018) ("A 

forum-selection clause can survive an agreement's termination even 
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without an explicit survival provision."). That is because "[u]nlike the 

substantive rights and obligations in a contract, a forum-selection clause 

is a structural provision that addresses the procedural requirements for 

dispute resolution." Id. at 453; see also Silverpop Sys., Inc. v. Leading 

Mkt. Techs., Inc., 641 F. App'x 849, 857 (11th Cir. 2016) ("While 

contractual obligations may expire upon the termination of a contract, 

provisions that are structural (e.g., relating to remedies and the 

resolution of disputes) may survive that termination." (citing Goshawk 

Dedicated v. Portsmouth Settlement Co. I, 466 F. Supp. 2d 1293, 1300 

(N.D. Ga. 2006))). A forum selection clause does not require a "savings 

clause" to survive termination any more than does an arbitration clause. 

Baker, 242 So. 3d at 453.

Further, "[c]ontracting parties have the right to select the venue for 

their disputes." Monarch Claims Consultants, Inc. v. Fleming, 372 So. 3d 

758, 761 (Fla. 1st DCA 2023) (citing Baker, 242 So. 3d at 452). FPFA 

and the County did so in this case. And here, with its use of the word 

"shall," the forum selection clause is mandatory rather than permissive. 

See Am. Boxing, 911 So. 2d at 865 ("Forum selection clauses stating that 

litigation 'must' or 'shall' be initiated in a particular forum are generally 

considered to be mandatory.").

We construe forum selection clauses according to their plain 

language, see Antoniazzi v. Wardak, 259 So. 3d 206, 209 (Fla. 3d DCA 

2018), and enforce them unless they are unjust or unreasonable, see

Am. Safety Cas. Ins. Co. v. Mijares Holding Co., 76 So. 3d 1089, 1092 

(Fla. 3d DCA 2011).4 In this instance, FPFA and the County contracted 

4 We need not consider whether the forum selection clause in this 

case is unjust or unreasonable because FPFA does not suggest that it is 

either.
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for a broad forum selection clause that is not limited just to claims 

"arising under" the interlocal agreement or to claims requiring 

interpretation of the agreement's substantive provisions. Rather, this 

clause expressly covers "any legal or equitable action involving the 

County . . . the Agency or its program in Pinellas County." And while we 

would not go so far as to suggest that that provision applies ad infinitum, 

we have no problem concluding that it applies, at the least, to legal or 

equitable disputes that arose between the parties while the interlocal 

agreement was still in effect.

In this case the County has brought two quintessentially equitable 

claims against FPFA—one for declaratory relief and another for injunctive 

relief. Both claims concern FPFA's program in the County, and both 

turn on events predating the interlocal agreement's termination. 

Accordingly, we readily conclude that the forum selection clause applies 

to the County's claims. Cf. 4 Am. Jur. 2d Alternative Dispute Resolution § 

59 (2023) ("The termination of the contract prior to a demand for 

arbitration will generally have no effect on such demand, provided that 

the dispute in question either arose out of the terms of the contract or 

arose when a broad contractual arbitration clause was still in effect." 

(emphasis added)); Monarch Claims Consultants, 372 So. 3d at 762 

("Courts have often compared forum selection clauses to arbitration 

clauses and have applied a similar enforceability analysis to both." 

(quoting Baker, 242 So. 3d at 453 n.2)).

A cause of action for declaratory relief accrues when the following 

conditions have been met:

[T]here is a bona fide, actual, present practical need for the 

declaration; that the declaration should deal with a present, 

ascertained or ascertainable state of facts or present 

controversy as to a state of facts; that some immunity, power, 
13

privilege or right of the complaining party is dependent upon 

the facts or the law applicable to the facts; that there is some 

person or persons who have, or reasonably may have an 

actual, present, adverse and antagonistic interest in the 

subject matter, either in fact or law; that the antagonistic and 

adverse interest[s] are all before the court by proper process 

or class representation and that the relief sought is not 

merely giving of legal advice by the courts or the answer to 

questions propounded from curiosity.

Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 

400, 404 (Fla. 1996) (alterations in original) (quoting Santa Rosa County 

v. Admin. Comm'n, Div. of Admin. Hearings, 661 So. 2d 1190, 1192–93 

(Fla. 1995)). These conditions were easily satisfied here before the 

interlocal agreement expired. FPFA wrote the County before expiration 

that in light of the bond validation judgment, it would henceforth operate 

without regard to the County's ordinance, that it would offer financing 

for PACE improvements to both residential and commercial property 

owners, and that it would do so in the future even if it never entered into 

another interlocal agreement with the County. The County's declaratory 

relief claim therefore arose while the interlocal agreement was still in 

effect. See Ranucci v. City of Palmetto, 317 So. 3d 270, 274 (Fla. 2d DCA 

2021) (holding that a claim for declaratory relief had accrued after a 

homeowner's association had made it clear that it would challenge "the 

City's efforts to compel annexation of any property within the 

Amberwynd of Snead Island subdivision").

The County's claim seeking injunctive relief likewise arose while the 

interlocal agreement was still in effect. Specifically, the County pled that 

FPFA began providing PACE financing to residential property owners in 

violation of the County's ordinance immediately after the bond validation 

judgment issued—and well before the interlocal agreement expired in 

March 2023—and that "such operation of a PACE program within 
14

Pinellas County violates state law, local ordinance, and the provisions of 

the Agreement during such time as it was effective." Nothing more 

needed to happen for the County to seek injunctive relief against FPFA. 

Cf. Polk County v. Mitchell, 931 So. 2d 922, 926 (Fla. 2d DCA 2006) 

(reversing trial court's order denying county's motion for temporary 

injunction where business owner had violated ordinance prohibiting 

unauthorized business signs and threatened to do so in the future); P.M. 

Realty & Invs., Inc. v. City of Tampa, 779 So. 2d 404, 406 (Fla. 2d DCA 

2000) (affirming trial court's entry of temporary injunction against 

operation of nightclub because the owner had opened the business 

without the requisite permit).5

Accordingly, although we reject the trial court's application of the 

sword-wielder doctrine to the County's claims, we nevertheless affirm the 

court's denial of FPFA's motion to dismiss for improper venue based on 

the forum selection clause.

Affirmed.

SLEET, C.J., Concurs.

ATKINSON, J., Concurs in result only.

Opinion subject to revision prior to official publication.

5 We offer no view on whether the County is likely to prevail on 

either count. We conclude merely that the County's claims fit squarely 

within the broad forum selection clause in the parties' agreement.