Christopher Pretzer v. Rick Swearingen, individually and in his official capacity, and Florida Department of Law Enforcement

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-1863

_____________________________

CHRISTOPHER PRETZER, et al.,

Appellants,

v.

RICK SWEARINGEN, individually,

MARK GLASS in his official

capacity, and FLORIDA

DEPARTMENT OF LAW

ENFORCEMENT,

Appellees. 1

_____________________________

On appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

July 19, 2024

1 As the successor to Rick Swearingen as the Commissioner of

the Florida Department of Law Enforcement, Mark Glass is

automatically substituted for Swearingen to the extent that

Swearingen was sued in his official capacity. See Fla. R. App. P.

9.360(c)(2). The automatic substitution provision does not apply to

the extent that the appellants sued Swearingen in his individual

capacity. See § 790.33(3)(c), Fla. Stat.; cf. State v. City of Weston,

316 So. 3d 398 (Fla. 1st DCA 2021), opinion approved sub nom.

Fried v. State, 355 So. 3d 899 (Fla. 2023).

EN BANC

WINOKUR, J.

Appellants (hereinafter “Pretzer”) brought an action against

Appellees (hereinafter “FDLE”) under section 790.33(3)(f), Florida

Statutes, alleging that FDLE violated the preemption provision of

section 790.33(1), by adopting a policy, rule, or regulation

regarding firearms without specific authorization from the

Legislature to do so. 2 Pretzer alleged that FDLE impermissibly

deviated from the statutory process for firearm purchases outlined

in section 790.065, Florida Statutes, and created a new category of

potential firearms purchasers not authorized by the Legislature.

In its answer, FDLE asserted exhaustion of administrative

remedies as an affirmative defense and moved for judgment on the

pleadings based on that defense. The trial court granted FDLE’s

motion, rendering final judgment against Pretzer, concluding that

Pretzer first had to seek remedies on the preemption claim through

administrative proceedings. Pretzer appeals that ruling.

In the opinion that follows, we discuss the applicable law, the

trial court’s interpretation of section 790.33, the provision of the

Administrative Procedure Act (“APA”) explicitly addressing

exhaustion of administrative remedies, and the applicability of the

doctrine of exhaustion of administrative remedies with regard to

an action pursuant to section 790.33. Finding that the relief

authorized by section 790.33(3)(f)1. is the remedy in this case,

rather than any remedy available under the APA, we reverse the

judgment of the trial court.

2 The appellants are both individual and organizational

plaintiffs, all claiming to have suffered some form of harm because

of the purported violation.

2

I

Applicable Statutes

A

Rulemaking Authority

We begin by discussing a state agency’s authority to adopt

rules to manage its duties. An administrative agency created by

the Legislature has no inherent authority to adopt rules. See

§ 120.54(1)(e), Fla. Stat. (“No agency has inherent rulemaking

authority . . . .”); see also Fairfield Cmtys. v. Fla. Land & Water

Adjudicatory Comm’n, 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988)

(noting that “any rulemaking authority which the legislature may

validly delegate to the administrative agency is limited by the

statute conferring the power . . . .”). At the very least, an enabling

statute is required. See § 120.536(1), Fla. Stat. (“An agency may

adopt only rules that implement or interpret the specific powers

and duties granted by the enabling statute.”). Regulation of any

subject outside the Legislature’s grant of rulemaking authority is

invalid. Id. (“Statutory language granting rulemaking authority or

generally describing the powers and functions of an agency shall

be construed to extend no further than implementing or

interpreting the specific powers and duties conferred by the

enabling statute.”); see also § 120.52(8)(b), Fla. Stat. (“A proposed

or existing rule is an invalid exercise of delegated legislative

authority if . . . . [t]he agency has exceeded its grant of rulemaking

authority . . . .”).

B

Section 790.33

In 1987, the State enacted the Joe Carlucci Uniform Firearms

Act, which created section 790.33. See Ch. 87-23, Laws of Fla. In

it, the Legislature preempted all local regulation regarding

firearms. In pertinent part, the original version of section

790.33(1) stated as follows:

PREEMPTION.—Except as expressly provided by

general law, the Legislature hereby declares that it is

occupying the whole field of regulation of firearms and

ammunition, including the purchase, sale, transfer,

3

taxation, manufacture, ownership, possession, and

transportation thereof, to the exclusion of all existing and

future county, city, town, or municipal ordinances or

regulations relating thereto. Any such existing

ordinances are hereby declared null and void.

§ 790.33(1), Fla. Stat. (1987).

In 2011, the Legislature amended section 790.33(1),

expanding the scope of preemption to include all state agencies.

See Ch. 11-109, § 1, Laws of Fla. The portions underlined here were

added to section 790.33(1):

Except as expressly provided by the State Constitution or

general law, the Legislature hereby declares that it is

occupying the whole field of regulation of firearms and

ammunition . . . to the exclusion of all existing and future

county, city, town, or municipal ordinances or any

administrative regulations or rules adopted by local or

state government relating thereto. Any such existing

ordinances, rules, or regulations are hereby declared null

and void.

Id.

“Preemption” of rules or regulations adopted by a state agency

is somewhat different than preemption of county or municipal

rules or ordinances. Preemption typically “takes a topic or a field

in which local government might otherwise establish appropriate

local laws and reserves that topic for regulation exclusively by the

[State] legislature.” City of Hollywood v. Mulligan, 934 So. 2d

1238, 1243 (Fla. 2006). If the State wishes to prevent counties or

municipalities from legislating on a subject, legislative preemption

may be necessary because counties and municipalities have

relatively broad lawmaking authority. See Art. VIII, § 1(f), Fla.

Const. (giving non-charter counties “such power of self-

government as is provided by general or special law”); Art. VIII,

§ 1(g), Fla. Const. (giving charter counties “all powers of local self-

government not inconsistent with general law”); Art. VIII, § 2(b),

Fla. Const. (providing that municipalities “may exercise any power

for municipal purposes except as otherwise provided by law”).

4

But, as stated above, state agencies possess more limited

powers to adopt rules and regulations. See § 120.536, Fla. Stat.; see

also WHS Trucking LLC v. Reemployment Assistance Appeals

Comm’n, 183 So. 3d 460, 462 (Fla. 1st DCA 2016) (noting that

agencies “only have the authority . . . conferred by statutes”). State

agency rulemaking is circumscribed by delegated legislative

authority, even without the limitations that section 790.33(1)

imposes. What section 790.33(1) prohibits beyond the limitations

in rulemaking already imposed is a key issue in Pretzer’s suit

against FDLE. For lack of a better term, we characterize the 2011

amendments to the statute as “un-delegating” (rather than

preempting) some of the regulatory power previously provided to

state agencies.

The 2011 amendments invalidated any existing firearm or

ammunition regulation adopted by an agency under a general

grant of rulemaking authority. See § 790.33(1), Fla. Stat. (“Any

such existing ordinances, rules, or regulations are hereby declared

null and void.”). Moreover, because the Legislature declared null

and void all existing rules that conflicted with the preemption

statute, no agency regulations based on a general grant of

rulemaking authority were “grandfathered in.” Cf. County of

Volusia v. DeSantis, 302 So. 3d 1001, 1004 (Fla. 1st DCA 2020)

(rejecting a county’s argument that its charter amendments

governing the selection and function of county constitutional

officers were “grandfathered in” and remained in effect despite

passage of a constitutional amendment eliminating that

previously authorized home-rule power). Additionally, the 2011

amendments withdrew all legislative authority for future firearms

or ammunition regulations when such regulations are based only

on the general language of an agency’s enabling statute. See

§ 790.33, Fla. Stat. (prohibiting the enactment of new ordinances

or regulations “unless specifically authorized by this section or

general law”); cf. Fried v. State, 355 So. 3d 899, 908 (Fla. 2023)

(discussing the effect of preemption on the authority of local

officials to regulate firearms).

After the passage of the 2011 amendments, an agency may

regulate firearms and ammunition only under a “specific” grant of

rulemaking authority. See Fla. Carry, Inc. v. Univ. of N. Fla., 133

So. 3d 966, 972–73 (Fla. 1st DCA 2013) (en banc) (explaining that

5

a state agency, even one deriving its authority directly from the

state constitution, is not authorized to enact rules or policies

restricting the right to bear arms without a specific legislative

delegation). And absent a specific grant of rulemaking authority,

any agency action that contravenes section 790.33 is ultra vires

and therefore null and void. See Nat’l Rifle Ass’n of Am., Inc. v. City

of S. Miami, 812 So. 2d 504, 506 (Fla. 3d DCA 2002) (holding that

a city’s ordinance is “null and void as it is in conflict with section

790.33, Florida Statutes”); cf. Masone v. City of Aventura, 147

So. 3d 492, 498 (Fla. 2014) (finding ordinances imposing penalties

for red light violations “invalid because they are expressly

preempted by state law”).

In addition to expanding the scope of section 790.33(1) to

include state agencies, the 2011 amendments created a

mechanism for plaintiffs to sue governmental entities that violate

the statute. See Ch. 11-109, § 3, Laws of Fla. Specifically, the

Legislature created a private cause of action so that those

“adversely affected” could seek redress of a grievance in a court of

law. See § 790.33(3)(f)1., Fla. Stat.

Under that cause of action, a plaintiff may sue both

governmental entities and government officials. See § 790.33(3)(a),

Fla. Stat. (“Any person, county, agency, municipality, district, or

other entity that violates the Legislature’s occupation of the whole

field of regulation of firearms and ammunition . . . shall be liable

as set forth herein.” (emphasis supplied)). A plaintiff may seek

declaratory relief, injunctive relief, actual damages, as well as

reasonable attorney’s fees and costs by filing an action in court. See

§ 790.33(3)(f)1., Fla. Stat. While government officials cannot be

subject to damage awards under subsection 790.33(3)(f)1.b., they

can face civil fines under subsection 790.33(3)(c). See Fried, 355

So. 3d at 904 (stating that civil fines and penalties under

subsections (3)(c) and (3)(d) apply to “officials” whereas attorney’s

fees, costs, and damages under subsection (3)(f) apply to

“governments”).

6

C

Regulating Sale of Firearms

Sections 790.065 and 790.0655, Florida Statutes, generally

regulate the sale and purchase of firearms. Among other things,

section 790.065(1)(a) requires a dealer to request that FDLE

conduct a criminal background check on a potential buyer. Based

on this check, FDLE must inform the dealer whether the buyer is

prohibited from purchasing firearms and provide the dealer with

an approval number; a nonapproval number; or in some specified

circumstances, a conditional nonapproval number. § 790.065(2)(b),

(c)1., Fla. Stat.

If FDLE issues a conditional nonapproval, then it must

determine whether the potential buyer is prohibited from

purchasing firearms within 24 working hours. § 790.065(2)(c)2.,

Fla. Stat. If, within the 24 working hour period, FDLE cannot

determine whether a potential buyer issued a conditional

nonapproval is eligible, then it must provide the dealer with a

conditional approval number. § 790.065(2)(c)5., Fla. Stat.

Section 790.065 also provides a remedy to those persons

“denied the right to receive or purchase firearms as a result of the

procedures established by this section,” allowing them to “request

a criminal history records review and correction in accordance with

the rules promulgated by the Department of Law Enforcement.”

§ 790.065(6), Fla. Stat.

Section 790.0655(1)(a) establishes a three-day waiting period

for the purchase and delivery of firearms. Before 2018, this

statutory provision specified that “[t]here shall be a mandatory 3-

day waiting period, which shall be 3 days, excluding weekends and

legal holidays, between the purchase and the delivery at retail of

any handgun.” § 790.0655(1)(a), Fla. Stat. (2017). But in 2018, the

Legislature enacted the Marjory Stoneman Douglas High School

Public Safety Act, which in part amended this provision to read,

“[t]he mandatory waiting period is 3 days, excluding weekends and

legal holidays, or expires upon the completion of the records checks

required under s. 790.065, whichever occurs later.” Ch. 2018-3, §§

1, 12, Laws of Fla. (emphasis supplied).

7

II

Pretzer’s Complaint

In the second amended complaint, 3 Pretzer claimed that

FDLE is statutorily authorized to issue only one of the following

“three responses [to a potential buyer] in regard to a background

check performed for the purchase of a firearm”: approval,

nonapproval, or conditional nonapproval. According to Pretzer,

FDLE impermissibly modified the statutorily prescribed process

by creating a fourth class of potential buyers: those with a “decision

pending” status under section 790.0655. Pretzer claimed that

those who fall in that new category lack the benefits of the

statutory process and remedy provided in section 790.065.

Specifically, Pretzer challenged FDLE’s interpretation of the

change to section 790.0655(1)(a) resulting from the Marjory

Stoneman Douglas High School Public Safety Act. According to

Pretzer, FDLE “seized upon . . . in-artfully drafted language [in the

2018 amendment] to claim the ability to indefinitely delay a

constitutional right [to bear arms] without any due process for an

indefinite time period, without any opportunity for review or

challenge.”

Discounting FDLE’s reliance on the “whichever occurs later”

language located at the end of the second sentence of subsection

790.0655(1)(a), Pretzer alleged that the phrase “completion of the

records checks required under s. 790.065” contained in the middle

of that second sentence “means that the records check must be

concluded no later than the 24 working hours required by” section

790.0655. According to Pretzer, subsection 790.0655(1)(a) does not

authorize FDLE to take however long it feels is necessary to

perform the required check.

Finally, Pretzer alleged that FDLE, by creating a new class of

potential buyers, “promulgated or enacted a policy rule or

regulation without the authority to do so [under section 790.065]

3 FDLE had sought dismissal of part or all of two previous

versions of Pretzer’s pleading.

8

and in direct contravention of Sec. 790.33, Fla. Stat.” 4 Pretzer

claimed that these violations caused him and the other plaintiffs

varying degrees of harm. He sought declaratory, injunctive, and

monetary relief, as permitted by section 790.33(3)(f)1.

FDLE answered this last iteration of Pretzer’s complaint,

asserting a host of what it characterized as affirmative defenses.

In one of the defenses, FDLE asserted that Pretzer had failed to

exhaust all available administrative remedies before filing suit. It

later moved for judgment on the pleadings, relying on this

exhaustion defense. FDLE characterized Pretzer’s complaint as an

attack on an FDLE rule—in particular, Rule 11C-6.009 of the

Florida Administrative Code—and argued that such complaints

must be brought under the APA, specifically section 120.56,

Florida Statutes, at the Division of Administrative Hearings in the

first instance. According to FDLE, by filing a civil action in circuit

court instead of a rule challenge in an administrative forum,

Pretzer failed to exhaust all available administrative remedies.

Regarding section 790.33, FDLE argued that the Legislature did

not rescind any rulemaking authority to administrative agencies.

For his part, Pretzer denied that he was challenging Rule 11C-

6.009, and was instead challenging FDLE’s exercise of regulatory

authority that is inconsistent with sections 790.065 and 790.0655,

so there was no administrative remedy for him to exhaust. The

court granted the motion and rendered judgment in favor of FDLE,

ruling that Pretzer’s claim was essentially a rule challenge,

requiring him to exhaust his remedies under the APA before filing

an action in circuit court.

III

Analysis

We review de novo a trial court’s decision to grant a motion for

judgment on the pleadings. See Reinhard v. Bliss, 85 So. 2d 131,

133 (Fla. 1956).

4 Although we describe Pretzer’s claims, we do not address

their merits, given the procedural posture of the case.

9

In the order granting FDLE’s motion for judgment on the

pleadings, the trial court correctly identified Pretzer’s claim: that

FDLE’s actions were “outside the scope of [its] authority, as

codified within sections 790.065 and 790.0655, Florida Statutes,

and are therefore preempted under section 790.33, Florida

Statutes.” The court even described Pretzer’s claim as a

“preemption claim.” Nevertheless, the trial court concluded that

Pretzer’s claim was a “quintessential rule challenge.” Instead of

focusing on the statutory authority for Pretzer’s complaint, the

trial court focused on the nature of the complaint and ruled that

“[i]n all but name, [Pretzer’s] complaint is a rule challenge.”

Because Pretzer’s preemption claim looks like a rule challenge,

according to the trial court, it must be one—regardless of whether

section 790.33 provides a cause of action separate from the APA.

After classifying Pretzer’s complaint under section 790.33 as

a rule challenge, the trial court faulted Pretzer for filing his

complaint “in the wrong forum,” presumably because the APA

provides for a rule challenge. Finding that Pretzer failed to

exhaust “all available administrative remedies,” the trial court

rendered final judgment in favor of FDLE. For the following

reasons, we reject this conclusion.

A

Trial Court Order

In granting final judgment on the pleadings, the trial court

misapprehended the preemption language of subsection 790.33(1).

Specifically, the trial court ignored the phrase, “[e]xcept as

expressly provided,” and misinterpreted the term “general law” to

mean that FDLE can rely on the general grant of rulemaking

authority found in its enabling statute to regulate the purchase of

firearms and ammunition, stating the following:

[T]here is no suggestion that Section 790.33 was intended

to strike the APA, circumvent its application to FDLE’s

rules and policies, or even address the enactment of rules

within the authority conferred by the Legislature. In fact,

by its plain language, Section 790.33 specifically exempts

the APA, a general law, from its reach.

10

(emphasis supplied). 5

As to State agencies, the trial court’s interpretation of section

790.33(1) renders meaningless the preemption language expressly

contained in the statute. The following table illustrates this

conclusion.

Actual Language of § 790.33(1) vs.

Trial Court’s Interpretation

Rule Exception

“[T]he Legislature “Except as expressly

hereby declares that provided by the

it is occupying the State Constitution or

§ 790.33(1) whole field of general law”

regulation of firearms

and ammunition”

Except as provided

An administrative by the State

Trial Court’s agency may not Constitution or any

Interpretation regulate firearms and source of general

ammunition. rulemaking

authority.

If, as the trial court found, section 790.33(1) limits an agency’s

rulemaking authority to the Constitution, the APA, and an

agency’s enabling statute, then the state-agency provision of

section 790.33(1) proscribes nothing that the APA does not already

proscribe. See, e.g., § 120.536(1), Fla. Stat. (prohibiting an agency

from adopting rules unless they “implement or interpret the

specific powers and duties granted by the enabling statute”).

Under the trial court’s interpretation, the 2011 amendments to

section 790.33(1) took nothing back from administrative agencies.

5 The enabling statute relied upon here is section 943.03(4),

Florida Statutes, which empowers FDLE to “adopt rules pursuant

to ss. 120.536(1) and 120.54 to implement the provisions of law

conferring powers or duties upon it.”

11

Indeed, under the trial court’s interpretation, it is hard to see what

impact the 2011 amendments had on state agencies at all.

To support its decision, the trial court relied on the “Policy and

Intent” statement contained in subsection (2) of section 790.33.

The court stated that “[T]he Legislature expressed its intent to

‘declare all ordinances and regulations null and void which have

been enacted by any jurisdictions other than state and federal.”

As originally enacted and as it exists currently, subsection

(2)(a) states the following:

It is the intent of this section to provide uniform

firearms laws in the state; to declare all ordinances and

regulations null and void which have been enacted by any

jurisdictions other than state and federal, which regulate

firearms, ammunition, or components thereof; to prohibit

the enactment of any future ordinances or regulations

relating to firearms, ammunition, or components thereof

unless specifically authorized by this section or general

law; and to require local jurisdictions to enforce state

firearms laws.

Ch. 87-23, § 4, Laws of Fla.; § 790.33(2)(a) Fla. Stat. (emphasis

supplied). Read in isolation, paragraph (2)(a) could be interpreted

as exempting state agencies from the preemption statute.

We rejected this reading of subsection (2) in Florida Carry,

Inc. v. University of North Florida:

Previously, this statute only explicitly preempted the

regulation of firearms by local government. However, in

October 2011, the legislature added the phrase “any

administrative regulations or rules adopted by local or

state government” to emphasize and reiterate that the

regulation of firearms was solely within the purview of

the legislature and not within the jurisdiction of local

governments or agencies of the state government using

their rulemaking power. It is presumed that in adopting

an amendment, the legislature intends to change the

meaning of a statute unless a contrary intention is clearly

12

expressed. As such, we must interpret the statute to

preempt the regulation of the right to bear arms from

state governmental entities as well as local government.

To rule otherwise and permit a state agency to enact rules

or policies restricting the right to bear arms without a

specific legislative delegation would render the 2011

amendment superfluous.

See 133 So. 3d at 972 (emphasis supplied) (citations omitted).

Therefore, to the extent that the trial court relied on subsection (2)

of section 790.33 to conclude that subsection (1) does not limit

FDLE’s authority to regulate firearms, it erred.

B

1

Section 120.56(1)(e)

The trial court did not merely fault Pretzer for bringing his

action in the “wrong forum” because it was really a rule challenge.

The court also ruled that by filing suit in circuit court instead of a

rule challenge pursuant to the APA, Pretzer failed to “exhaust all

available administrative remedies,” concluding that “[f]or this

reason” judgment for FDLE was warranted.

The short response to this conclusion is contained in the APA

itself. The trial court was clear that Pretzer was required to file a

rule challenge pursuant to section 120.56 in order to meet his

obligation to exhaust administrative remedies. Yet that very

statute belies any such claim:

Failure to proceed under this section does not constitute

failure to exhaust administrative remedies.

§ 120.56(1)(e), Fla. Stat.

Thus, the statute that supposedly sets forth the

administrative remedy Pretzer was required to seek before filing

suit in fact unequivocally states that no such action is necessary.

Pretzer was not required to file a rule challenge for the purpose of

exhausting administrative remedies, and the court erred by

13

concluding otherwise. Regardless of whether we agree with the

trial court’s conception of the exhaustion requirement, this

statutory provision is sufficient alone to defeat FDLE’s claim that

Pretzer was required to exhaust administrative remedies by

mounting a rule challenge before he filed suit.

We reject FDLE’s reading of section 120.56(1)(e) that it is

“directed to appellate courts (not circuit courts),” in that all it

means is that appellate review of an order following a section

120.57, Florida Statutes, proceeding is not precluded if the

appellant did not also raise a rule challenge under section 120.56.

This reading is inconsistent with the plain language of section

120.56(1)(e), which is not limited to appellate action. FDLE claims

that State ex rel. Department of General Services v. Willis, 344 So.

2d 580 (Fla. 1st DCA 1977), supports this position. Willis held that

section 120.56 should not be read to permit appellate courts to

“rebuff rule challenges by petitions to review 120.57 proceedings

because petitioner did not ‘exhaust’ the rule-challenge remedies”

of section 120.56. 344 So. 2d at 592. Perhaps so, but limiting the

meaning of section 120.56(1)(e) to this situation is inconsistent

with the statutory language. To the extent we suggested otherwise

in Willis, that statement was dictum. Willis involved a suit to

enjoin an agency from completing a bid even though the APA

contains bid protest procedures, not a suit that the agency claimed

was actually a rule challenge.

Even if section 120.56(1)(e) did not conclusively refute FDLE’s

exhaustion argument, we find that a plaintiff is not required to

exhaust administrative remedies under the APA before filing a suit

authorized by section 790.33(3)(f)1.

2

Trial Court’s Exhaustion Analysis

In support of its decision, the trial court explained exhaustion

of administrative remedies as follows: “The doctrine of exhaustion

is not concerned with any particular administrative remedy, but

rather asks only whether a litigant has an available

administrative remedy . . . .” Based on that broad conception of the

doctrine, the court determined that the “rule challenge provisions

set forth in Section 120.56 are available to Plaintiffs in the first

14

instance to test their theories regarding the ‘enactment’ and

‘enforcement’ [of FDLE’s rule].” While this articulation of the

doctrine is consistent with the description given in Florida Carry,

Inc. v. Thrasher, 315 So. 3d 771 (Fla. 1st DCA 2021), it is in fact

inconsistent with the correct usage of the doctrine.

a

Exhaustion in General

As a matter of basic administrative law, a party challenging

an agency action or decision must exhaust all administrative

remedies before seeking judicial review. See 4 The Late Charles J.

Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 12:21 (3d ed.

2024); 2 Tracy Bateman et al., Fla. Juris. Admin. L. § 405 (2d ed.

2024). This does not mean that no legal action against a

governmental entity can ever be maintained until the plaintiff has

first invoked some administrative proceeding conceivably related

to the subject matter. The doctrine requiring the exhaustion of

administrative remedies is a “court-created prudential doctrine,”

and whether it should be required in any particular instance is a

“matter of policy.” Dep’t of Revenue v. Brock, 576 So. 2d 848, 850

(Fla. 1st DCA 1991) (citations omitted); see also McCarthy v.

Madigan, 503 U.S. 140, 146 (1992) (superseded by statute on other

grounds) (noting that the Supreme Court has “declined to require

exhaustion in some circumstances even where administrative and

judicial interests would counsel otherwise” and that the

determination of whether administrative remedies must be

exhausted requires courts to “balance the interest of the individual

in retaining prompt access to a federal judicial forum against

countervailing institutional interests favoring exhaustion”).

Exhaustion of administrative remedies should be required only

when it promotes the purposes of the doctrine.

The Supreme Court summarized those purposes in

Weinberger v. Salfi, 422 U.S. 749, 765 (1975), as follows:

Exhaustion is generally required as a matter of

preventing premature interference with agency

processes, so that the agency may function efficiently and

so that it may have an opportunity to correct its own

errors, to afford the parties and the courts the benefit of

15

its experience and expertise, and to compile a record

which is adequate for judicial review.

See also McCarthy, 503 U.S. at 145 (holding that “[e]xhaustion is

required because it serves the twin purposes of protecting

administrative agency authority and promoting judicial

efficiency”).

McCarthy v. Madigan identified several circumstances “in

which the interests of the individual weigh heavily against

requiring administrative exhaustion.” Id. These circumstances

include the following:

1. when “requiring resort to the administrative remedy may

occasion undue prejudice to subsequent assertion of a court

action;”

2. when “an administrative remedy may be inadequate ‘because of

some doubt as to whether the agency was empowered to grant

effective relief[,]’” such as “where the challenge is to the adequacy

of the agency procedure itself;” and,

3. when “the administrative body is shown to be biased or has

otherwise predetermined the issue before it.”

Id. at 146–48. 6

A determination of whether to require prior administrative

exhaustion should examine “both the nature of the claim presented

and the characteristics of the particular administrative procedure

provided.” Id. at 146. Accordingly, we begin by looking at the

nature of the claim presented.

6 By identifying “exceptions,” the Supreme Court did not

suggest that courts should apply a presumption in favor of

exhaustion, which can only be overcome if an “exception” is proven.

The “exceptions” appear to be simply factors that may be taken

into account in determining whether to impose an administrative

exhaustion requirement.

16

b

i

Nature of the Claim Presented

As stated above, section 790.33(1) announces that “the

Legislature is occupying the whole field of regulation of firearms

and ammunition.” Even though this preemption language had

been in the statute for 24 years by 2011, in that year the

Legislature presumably felt it necessary to create an enforcement

mechanism for its preemption of firearm regulation, explicitly

creating a cause of action authorizing persons or organizations to

“file suit” against governmental bodies for violating the

preemption requirements of subsection (1). See § 790.33(3)(f)1.,

Fla. Stat. Needless to say, the statute does not require a plaintiff

to exhaust administrative remedies before filing suit. Given that

the very purpose of subparagraph (3)(f)1. is to authorize a lawsuit

against the government to enforce subsection (1), it seems unlikely

that the Legislature would want courts to require that a plaintiff

entreat the agency itself before the plaintiff could file suit.

One may conclude that we could end the analysis here. The

statute on its face permits suit in court to enforce an explicit cause

of action, without obligating a plaintiff to first seek redress

through any administrative process. Imposing an administrative

exhaustion requirement in this circumstance could be viewed as

judicial interference with clear legislative guidance.

In this regard, this case is similar to McCarthy, where the

petitioner filed suit against prison officials under 28 U.S.C. § 1331,

alleging Eighth Amendment violations. See McCarthy v.

Maddigan, 914 F.2d 1411, 1411 (10th Cir. 1990), rev’d sub nom.

McCarthy v. Madigan, 503 U.S. 140 (1992). Even though the

statute did not contain a prior-exhaustion requirement, the

respondents claimed that the petitioner had to exhaust

administrative remedies through the Bureau of Prisons before

filing suit. McCarthy, 503 U.S. at 142. The Supreme Court

unanimously rejected that claim. A majority noted that its

determination of whether exhaustion was required must be

“consistent with congressional intent and any applicable statutory

scheme” in order to give “appropriate deference to Congress’ power

17

to prescribe the basic procedural scheme under which a claim may

be heard . . . .” Id. at 144. In other words, because the legislature

provides a statutory cause of action without requiring

administrative exhaustion, courts were not free to impose one. 7

But even if the lack of an administrative exhaustion

requirement in a statute creating a cause of action did not

conclusively reject such requirement, we would still find that the

statute itself is inconsistent with the requirement. An exhaustion

requirement is also inconsistent with subparagraph (3)(f)2. of

section 790.33, which reads as follows: “If after the filing of a

complaint a defendant voluntarily changes the ordinance [or]

regulation [at issue in the suit], with or without court action, the

plaintiff is considered a prevailing plaintiff for purposes of this

section.” In other words, if the defendant revises the contested

ordinance or regulation as a result of the litigation to make it

consistent with state law, the plaintiff is still entitled to the

remedies set forth in subparagraph (3)(f)1. This provision

demonstrates that the Legislature was not interested in

permitting the governmental entity to avoid liability by

“correct[ing] its own errors.” Weinberger, 422 U.S. at 765. Put

another way, if an agency uses an administrative exhaustion

requirement to correct its own errors and thereby avoid a

lawsuit—a basic purpose of administrative exhaustion—it would

conflict with the statutory intent to impose liability even when the

agency corrected its errors.

An administrative exhaustion requirement is also

inconsistent with the purpose of the statute, as indicated in the

statute itself. “Legislative purpose” is “of paramount importance”

in determining whether to impose an administrative exhaustion

requirement on a statutory cause of action. Patsy v. Bd. of Regents

7 Shortly after McCarthy, presumably in response to it,

Congress enacted the Prison Litigation Reform Act of 1995, which

imposes an administrative exhaustion requirement for federal

prisoner litigation. See Woodford v. Ngo, 548 U.S. 81, 84 (2006).

This is why McCarthy is “superseded by statute.” It remains to be

seen whether the Florida Legislature will enact an administrative

exhaustion requirement for section 790.33 lawsuits.

18

of State of Fla., 457 U.S. 496, 501–02 (1982). The statutory intent

apparent in section 790.33(3)(f) is inconsistent with an

administrative exhaustion requirement. The Legislature provided

Pretzer with a judicial remedy and did not require administrative

exhaustion before he could seek that remedy.

Imposing an administrative exhaustion requirement is often

viewed as protecting the executive branch from unwarranted

judicial interference. See Key Haven Associated Enters., Inc. v. Bd.

of Trs. of Internal Imp. Tr. Fund, 427 So. 2d 153, 157 (Fla. 1982)

(noting that “[j]udicial intervention in the decision-making

function of the executive branch must be restrained in order to

support the integrity of the administrative process and to allow the

executive branch to carry out its responsibilities as a co-equal

branch of government”). But when courts impose an

administrative exhaustion requirement to obstruct a statutorily

created cause of action that contains no such precondition to suit,

they are not protecting another branch of government from judicial

interference; to the contrary, the imposition is judicial interference

in the lawmaking function of the legislative branch. 8

Accordingly, the “nature of the claims presented” weighs

heavily against imposing an administrative exhaustion

requirement. McCarthy, 503 U.S. at 146.

ii

Characteristics of a Rule Challenge

We turn now to the “characteristics of the particular

administrative procedure provided.” Id. FDLE claims that an

administrative challenge to its rules pursuant to section 120.56

provides an adequate remedy to Pretzer, and therefore it must be

sought before he can file suit under section 790.33. Beyond the fact

that the statute creating the cause of action requires no such

8 See, e.g., Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991)

(noting “Florida’s strong adherence to a strict separation of powers

doctrine” as set forth in Art. II, section 3 of the Florida

Constitution).

19

procedure, we find that a rule challenge under section 120.56 is

inconsistent with a section 790.33 action.

First, as stated above, section 120.56 imposes a different

standard than section 790.33. Section 120.56 permits a person to

“seek an administrative determination of the invalidity of the rule

on the ground that the rule is an invalid exercise of delegated

legislative authority.” In defining “invalid exercise of delegated

legislative authority,” the APA notes that “[a]n agency may adopt

only rules that implement or interpret the specific powers and

duties granted by the enabling statute.” § 120.52(8), Fla. Stat. But

section 790.33(1) imposes a different standard. An agency cannot

regulate firearms merely because the regulation is permitted by

the enabling statute; indeed, no regulations or rules regarding

firearms are permitted “[e]xcept as expressly provided by the State

Constitution or general law.” § 790.33(1), Fla. Stat. (emphasis

supplied). Because we do not rule on the merits of Pretzer’s

complaint, we do not opine whether the rules in question are

permissible under this provision. We do find, however, that the

standard for a rule challenge under section 120.56 (whether the

rule is an invalid exercise of delegated legislative authority) is

markedly different than the standard for imposing liability under

section 790.33 (whether the rule is specifically authorized by this

section or by general law). An administrative law judge may be

authorized to decide whether an agency rule meets the

requirements of the APA, but is not authorized to determine

whether an agency rule forecloses liability under section 790.33.

Second, the remedy available in a section 120.56 challenge is

a determination that the rule is invalid. § 120.56(1)(a), Fla. Stat.

In contrast, a prevailing plaintiff in a section 790.33 suit can

recover “[t]he actual damages incurred, but not more than

$100,000.” § 790.33(3)(f)1.b., Fla. Stat. FDLE brushes aside this

distinction by noting that a successful rule challenger could then

file a section 790.33 suit, and recover damages there. This

reasoning is circular: if a person must file suit to obtain damages,

then a rule challenge (where damages are unavailable) is not an

adequate remedy. Indeed, a minority of the Supreme Court ruled

in the plaintiff’s favor in McCarthy solely because the asserted

administrative remedy “does not provide for any award of

monetary damages.” 503 U.S. at 156 (Rehnquist, C.J., concurring).

20

FDLE also argues that a rule challenger under section 120.56

can recover attorney’s fees. While it is true that a successful rule

challenger can recover attorney’s fees, the agency is not liable for

fees if it “demonstrates that its actions were substantially justified

or special circumstances exist which would make the award

unjust.” § 120.595(2), Fla. Stat. But the Legislature imposed no

such limitation on recovery of fees in a suit under section

790.33(f)(3). The statute even permits a contingency fee multiplier

and the only limitation it places upon fees is that they be

“[r]easonable.” § 790.33(3)(f)1.a., Fla. Stat. In short, a successful

rule challenger would not be entitled to attorney’s fees in the same

manner as a successful section 790.33(3)(f) plaintiff.

Another relevant characteristic of a rule challenge is the

decision-making process involved. FDLE correctly notes that the

administrative exhaustion doctrine is based in part on the need “to

enable the agency . . . to apply its discretion and expertise in the

first instance to technical subject matter,” citing Florida High

School Athletic Ass’n v. Melbourne Central Catholic High School,

867 So. 2d 1281, 1286 (Fla. 5th DCA 2004). But a rule challenge in

no way invokes the agency’s “expertise.” A rule challenge is not

filed with the agency in order to seek its specialized knowledge

regarding the subject matter. It is filed directly with the Division

of Administrative Hearings, which assigns an administrative law

judge to conduct a hearing. § 120.56(1)(c), Fla. Stat. The agency is

only a party to that proceeding, and the administrative law judge’s

order on the challenge is final agency action. § 120.56(1)(e), Fla.

Stat. In short, FDLE can invoke its expertise in a rule challenge

the same way it would in a 790.33 suit: as a party to the

proceeding. Nothing about the administrative process allows

FDLE to invoke its expertise in any manner that it could not in a

section 790.33(3)(f) suit. Accordingly, this factor also weighs

against requiring administrative exhaustion.

3

Primary Jurisdiction

We further note that some of FDLE’s argument seems to

conflate the doctrine of exhaustion of administrative remedies

with the doctrine of primary jurisdiction. These are “companion

doctrines” but “not synonymous.” Flo-Sun, Inc. v. Kirk, 783 So. 2d

21

1029, 1037 n.5 (Fla. 2001). “‘Exhaustion’ applies where a claim is

cognizable in the first instance by an administrative agency alone;

judicial interference is withheld until the administrative process

runs its course.” Id. (quoting United States v. Western Pac. R.R.

Co., 352 U.S. 59, 63 (1956)). While

[p]rimary jurisdiction . . . applies where a claim is

originally cognizable in the courts, and comes into play

whenever enforcement of the claim requires resolution of

issues which, under a regulatory scheme, have been

placed within the special competence of an

administrative body; in such a case the judicial process is

suspended pending referral of such issues to the

administrative body for its review.

Id. Based on this distinction, the Florida Supreme Court explained

that

the doctrine of exhaustion arises as a defense to judicial

review of an administrative action and is based on the

need to avoid premature interruption of the

administrative process; whereas primary jurisdiction

operates where a party seeks to invoke the original

jurisdiction of a court to decide issues which may require

resort to administrative expertise.

Id.

The Florida Supreme Court’s explanation exposes some

overbroad application of the exhaustion doctrine. Exhaustion is

meant to “avoid premature interruption of the administrative

process.” As Pretzer’s suit did not interrupt any administrative

process, the doctrine does not seem to apply. On the other hand,

FDLE seems to argue that Pretzer’s lawsuit requires the court “to

decide issues which may require resort to administrative

expertise,” as Flo-Sun, Inc. puts it. Id. These concepts seem to be

conflated in much of the case law in this area. To the extent that

the doctrine of primary jurisdiction might require a court to

22

“suspend” Pretzer’s lawsuit and “refer” the case to FDLE, we do

not address that issue because FDLE never raised it. 9

4

Florida Carry v. Thrasher

This conflation may account for some of our approach in

Thrasher. There, we held that a plaintiff may not file an action

authorized by section 790.33(3)(f) against a university and its

president regarding university firearms regulations without

exhausting administrative remedies. Thrasher, 315 So. 3d at 772.

The administrative remedies in question were adopted under the

authority of section 1001.706(2)(c), Florida Statutes. This statute

permits the Board of Governors, which regulates the State

University System, to adopt rules for universities, and notes that

the rule adoption process must provide “a process for a

substantially affected person to challenge an unlawful regulation.”

Beyond identifying the statutory ground for the administrative

process, the Thrasher opinion does not describe any such process

for a person to challenge the university regulation, simply stating

that an administrative remedy authorized by section

1001.706(2)(c) and the cause of action permitted by section

790.33(3)(f) “can co-exist without depriving a party of its

constitutional or statutory rights absent extraordinary

circumstances.” Id. From this premise, the Thrasher court

concluded that the plaintiff failed to exhaust available

administrative remedies.

The question whether the administrative remedy and the

statutory cause of action can “co-exist” does not resolve the

question of whether a suit must be dismissed for failure to exhaust

administrative remedies. In this case, for example, it is undisputed

that a person could file a rule challenge pursuant to section 120.56

rather than a suit pursuant to section 790.33(3)(f). Thrasher

9 Nor do we address whether the doctrine of primary

jurisdiction survives the adoption of Article V, section 21, of the

Florida Constitution, which prohibits a court or hearing officer

from deferring to an administrative agency’s interpretation of a

statute or rule.

23

merely states that administrative exhaustion is generally required

and that no “exception” exists. Id. Thrasher does not, however,

discuss how the administrative process involved can adequately

vindicate the rights of a person under section 790.33(3)(f). Nor does

Thrasher explain why we should condition a statutorily created

cause of action on an administrative process that not only does the

statute not require, but also (as discussed above) is inconsistent

with the statute. For this reason, we recede from Thrasher to the

extent that it is inconsistent with this opinion.

IV

Conclusion

Even if we did not rely explicitly on section 120.56(1)(e) to

conclude that a plaintiff need not exhaust an APA rule challenge

before filing suit under section 790.33(3), we still conclude that

Pretzer was not required to exhaust an administrative remedy.

Pretzer does not raise “a quintessential rule challenge.” Rather, he

raises a legislative preemption challenge. With the 2011

amendments to section 790.33, the Legislature expressly provided

Pretzer with a judicial remedy—not an administrative one.

Because the relief authorized by section 790.33(3)(f)1. is the

remedy in this case, Pretzer could bring an action under section

790.33(3)(f) in circuit court without exhausting any administrative

remedies.

Therefore, we REVERSE the judgment rendered in favor of

FDLE.

OSTERHAUS, C.J., and LEWIS, ROBERTS, ROWE, RAY, BILBREY,

KELSEY, M.K. THOMAS, and LONG, JJ., concur.

TANENBAUM, J., concurs in part with an opinion, in which B.L.

THOMAS, J., joins.

NORDBY, J., recused.

24

_____________________________

Not final until disposition of any timely and

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

_____________________________

TANENBAUM, J., concurring in part.

The holding here is narrow but important. We reverse the

trial court’s judgment against the individual and organizational

plaintiffs—themselves simply pursuing the public cause of action

that the Legislature created for them in section 790.33, Florida

Statutes—because, contrary to the trial court’s rationale, that

statute does not require pursuit of any administrative remedy as

a condition precedent for suing. This holding overrules Florida

Carry, Inc. v. Thrasher, 315 So. 3d 771 (Fla. 1st DCA 2021), on

which the trial court primarily relied. I both concur in this holding

and agree Thrasher was wrongly decided, writing separately only

to highlight the straightforwardness of the applicable public-rights

analysis that leads, inexorably, to our disposition.

“Exhaustion of administrative remedies,” frequently labeled a

“doctrine,” is not so much that as it is a jurisprudential principle.

Cf. State, Dep’t of Rev. v. Brock, 576 So. 2d 848, 850 (Fla. 1st DCA

1991) (“The exhaustion requirement is a court-created prudential

doctrine; it is a matter of policy, not of power.”). The federal courts

originated the principle as part of their equity jurisprudence,

responding to requests to enjoin state agency taxation, foreclosing

the writ of injunction against some agency-caused harm if the

administrative process already offered an adequate remedy. Cf.

Dows v. City of Chicago, 78 U.S. 108, 109–10 (1870) (“No court of

equity will, therefore, allow its injunction to issue to restrain their

action, except where it may be necessary to protect the rights of

the citizen whose property is taxed, and he has no adequate

remedy by the ordinary processes of the law.”); Pittsburgh, C., C.

& St. L. Ry. Co. v. Bd. of Pub. Works of W. Va., 172 U.S. 32, 37

(1898) (explaining that a federal court will not restrain the state

collection of taxes by “writ of injunction” unless, among other

things, “the owner of the property taxed has no adequate remedy

by the ordinary processes of the law, and that there are special

25

circumstances bringing the case under some recognized head of

equity jurisdiction”); Myers v. Bethlehem Shipbuilding Corp., 303

U.S. 41, 50–51 & n.9 (1938) (noting “the long-settled rule of judicial

administration that no one is entitled to judicial relief for a

supposed or threatened injury until the prescribed administrative

remedy has been exhausted,” a rule “most frequently applied in

equity where relief by injunction was sought” but applied “to

proceedings at law as well”); Dundee Mortg. Tr. Inv. Co. v.

Charlton, 32 F. 192, 195 (C.C.D. Or. 1887) (dismissing equity bill

seeking injunction against board of equalization and assessor over

allegedly illegal mortgage tax because “it was the duty of the

plaintiff, if dissatisfied with the assessment, to pursue the mode

prescribed by the statute, relating to assessments” before suing in

federal court for either review or writ). 1

Not surprisingly, Florida courts expanded this general

exhaustion principle to include suits seeking declaratory relief

under Florida’s general declaratory judgment statute. Cf. Sch. Bd.

of Flagler Cnty. v. Hauser, 293 So. 2d 681, 682 (Fla. 1974) (holding

that “declaratory action was not the correct method to review such

alleged action of the school board” because “the declaratory decree

1 See Raoul Berger, Exhaustion of Administrative Remedies,

48 YALE L.J. 981, 981–82 & n.1 (Apr. 1939) (discussing early

history of the federal “doctrine” and positing that Dundee

Mortgage Trust Invest Co. v. Charlton was its “earliest

manifestation”); see also id. at 982–83 (characterizing the

“corrective power” behind administrative remedies for a

purportedly errant rule or regulation as “legislative in nature,”

noting the development of the exhaustion principle based on

courts’ inclination to postpone judicial relief until completion of

“legislative action,” because courts will not “enjoin the process of

legislation”); id. at 985–86 (addressing how “the exhaustion rule

was formulated in terms of equity jurisdiction,” how the cases

“again and again pointed out that there is no jurisdiction in equity

in the absence of exhaustion”); see generally James E. Dunlap,

Administrative Law: Exhaustion of Administrative Remedies as a

Prerequisite to Judicial Review, 44 MICH. L. REV. 1035 (June 1946)

(noting the principle’s origins in equitable doctrines, highlighting

its concomitantly discretionary nature even outside of equity).

26

statute is not a substitute for certiorari to review an

administrative order of a state board or agency”); Gulf Pines Mem’l

Park, Inc. v. Oaklawn Mem’l Park, Inc., 361 So. 2d 695, 699 (Fla.

1978) (agreeing with “general proposition” that a “circuit court

should refrain from entertaining declaratory suits except in the

most extraordinary cases, where the party seeking to bypass usual

administrative channels can demonstrate that no adequate

remedy remains available under Chapter 120”); Sch. Bd. of Leon

Cnty. v. Mitchell, 346 So. 2d 562, 568–69 (Fla. 1st DCA 1977)

(holding that “rule challenge initiated by appellee based upon the

record in this case is not of such character as would justify the

intervention of the Circuit Court by a declaratory judgment

proceeding” because administrative remedy was available through

the APA); but cf. Gulf Pines Mem’l Park, Inc., 361 So. 2d at 699

(noting, however, “that the Administrative Procedure Act does not

and cannot displace circuit court jurisdiction to enjoin enforcement

of facially unconstitutional agency rules”); State Dep’t of Envtl.

Prot. v. PZ Const. Co., Inc., 633 So. 2d 76, 78 (Fla. 3d DCA 1994)

(“Declaratory and injunctive relief is available as a remedy for

adverse administrative action only in those extraordinary cases

where a party has no other adequate administrative remedy to

cure egregious agency errors or where a party’s constitutional

rights are endangered, or where the agency is alleged to have acted

without colorable statutory authority and in excess of its delegated

powers.” (internal citations and quotations omitted)).

This extension of the exhaustion principle is not surprising

because declaratory relief and injunctive relief are similar: both

originating in equity, both being forms of “preventative justice,”

and both being “discretionary in the trial court.” See N. Shore Bank

v. Town of Surfside, 72 So. 2d 659, 661–62 (Fla. 1954); Sheldon v.

Powell, 128 So. 258, 261 (Fla. 1930) (“Under the English practice,

provision for declaratory judgments was established by rule of

court which, though broad in application, is discretionary. The

procedure for a declaratory judgment has become so important in

that country that it is said that 60 per cent. [sic] of the equity cases

are now brought under it.”); id. at 262 (“In its inception, the

purpose of the declaratory judgment was to serve as an instrument

of preventive justice” and “is inhibitory of injury” (internal

quotations omitted)); id. (explaining that the original “law

authorizing declaratory decrees” was “restricted to suits in equity,”

27

requiring “that all proceedings brought under it shall conform to

law and rules of court governing other proceedings in chancery, in

so far as same may be applicable”).

The provisions in chapter 86, Florida Statutes, governing

declaratory relief in Florida’s courts, are “nothing more than a

legislative attempt to extend procedural remedies to comprehend

relief in cases where technical or social advances have tended to

obscure or place in doubt one’s rights, immunities, status or

privileges.” Ready v. Safeway Rock Co., 24 So. 2d 808, 809 (Fla.

1946). The procedural relief allowed by these provisions is not

specific to one type of defendant or one type of legal dispute, but

certainly has the force of judicial power. See § 86.011, Fla. Stat.

(providing that a “declaration has the force and effect of a final

judgment”). It is only prudential, then, for a court—determining in

its discretion whether externally to provide preventative relief

against an organ of the executive branch—to ask why its

involvement is necessary under the provisions of chapter 86, if the

Legislature has acted specifically through the APA to create a

whole host of administrative remedies, available within the

executive branch, for the same claimed injury. See State, Dep’t of

Envtl. Reg. v. Falls Chase Special Taxing Dist., 424 So. 2d 787, 794

(Fla. 1st DCA 1982) (noting how the 1974 enactment of the APA

(chapter 120, Florida Statutes) “afforded new administrative

remedies and severely curtailed the need for extraordinary judicial

relief,” limiting the need for such judicial relief “in exceptional

cases”); State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So. 2d 580,

590–91 (Fla. 1st DCA 1977) (noting how the APA’s “impressive

arsenal of varied and abundant remedies for administrative error

requires . . . greater judicial deference to the legislative scheme,”

and how the act does not lessen “the power of the circuit courts” or

neutralize “their historic writs,” but merely “lessened” the number

of “occasions for their intervention” and “reduce[d] the demand for

them” (internal quotation and citation omitted)).

There was no need for the trial court’s asking whether the

relief sought by the appellants required its involvement, indeed no

reason to explore the application of the “exhaustion doctrine” at

all. The appellants—both individual and organizational

plaintiffs—did not sue under chapter 86 for declaratory relief,

pursuing instead several forms of relief, including money damages,

28

against the Florida Department of Law Enforcement (“FDLE”) and

its principal under section 790.33. 2 That provision allows for suits

by “[a] person or an organization whose membership is adversely

affected by any ordinance, regulation, measure, directive, rule,

enactment, order, or policy, whether written or unwritten,

promulgated or caused to be enforced in violation of this section,”

allowing such person or organization to seek “in any court of this

state having jurisdiction . . . over any defendant to the suit for

declaratory and injunctive relief and for actual damages, as

limited herein, caused by the violation.” § 790.33(3)(f)1., Fla. Stat.

(emphasis supplied); see also id. (3)(a) (making governmental

officers and entities liable for action in violation of the

Legislature’s statutory preemption).

With section 790.33(3)(f)1., the Legislature created a “public

right” to judicial relief against the State, thereby waiving

sovereign immunity and providing a statutory remedy for harms

suffered from agency violations of the section. See Art. X, § 13, Fla.

Const. (authorizing the Legislature to provide by general law for

“suit against the state as to all liabilities now existing or hereafter

originating”); Circuit Court of Twelfth Judicial Circuit v. Dep’t of

Nat. Res., 339 So. 2d 1113, 1116–17 (Fla. 1976) (precluding judicial

relief against the State in the absence of “legislation waiving the

state’s sovereign immunity”); Rabideau v. State, 409 So. 2d 1045,

1046 (Fla. 1982) (requiring “clear and unequivocal” consent from

the Legislature to effect a waiver of sovereign immunity); see also

Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984)

(“In Florida, sovereign immunity is the rule, rather than the

exception. . . .”); Univ. of Fla. Bd. of Trs. v. Rojas, 351 So. 3d 1167,

1170 (Fla. 1st DCA 2022), rev. granted, SC2023-0126, 2023 WL

4784215 (Fla. July 27, 2023) (“Outside of claims brought under the

federal or state constitutions, sovereign immunity bars suit

against the State.”); cf. McElrath v. United States, 102 U.S. 426,

440 (1880) (“The government cannot be sued, except with its own

consent.”). Public rights are “rights of the public—that is, rights

2 FDLE relies nearly exclusively on decisions involving

underlying suits pursuing general declaratory and supplemental

injunctive relief under chapter 86, making these decisions

inapposite to the limited analysis necessary for the current appeal.

29

pertaining to claims brought by or against” the government.

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 68 (1989) (Scalia,

J., concurring); see also Oil States Energy Servs., LLC v. Greene’s

Energy Grp., LLC, 584 U.S. 325, 334 (2018) (characterizing

matters of public rights as those that “arise between the

Government and persons subject to its authority in connection

with the performance of the constitutional functions of the

executive or legislative departments”); Stern v. Marshall, 564 U.S.

462, 485 (2011) (noting how the Court has contrasted cases

involving a public right—“arising between the Government and

persons subject to its authority”—with cases involving a “private

right, that is, of the liability of one individual to another under the

law as defined”). “[W]hat makes a right ‘public’ rather than private

is that the right is integrally related to particular [government]

action.” Stern, 564 U.S. at 490–91; cf. Exec. Benefits Ins. Agency v.

Arkison, 573 U.S. 25, 32 (2014) (distinguishing “between cases

involving so-called ‘public rights,’ which may be removed from the

jurisdiction of Article III courts, and cases involving ‘private

rights,’ which may not”).

By its very nature, a public right is the Legislature’s waiving

the State’s immunity and consenting to suit, and in creating one,

it “can declare in what court it may be sued” and “restrict the

jurisdiction of the court to a consideration of only certain classes of

claims against” it. McElrath v. United States, 102 U.S. 426, 440

(1880); see also Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929)

(explaining that when a legislature waives sovereign immunity to

allow for the determination of claims against the government,

“[t]he mode of determining matters of this class is completely

within [legislative] control,” meaning the legislative power can

“reserve to itself the power to decide, may delegate that power to

executive officers, or may commit it to judicial tribunals”); Oil

States Energy Servs., LLC, 584 U.S. at 334 (noting the “significant

latitude” given by precedent to the legislative power “to assign

adjudication of public rights to entities other than Article III

courts”); cf. Atlas Roofing Co., Inc. v. Occupational Safety & Health

Review Comm’n, 430 U.S. 442, 455 (1977) (noting “that when

Congress creates new statutory ‘public rights,’ it may assign their

adjudication to an administrative agency with which a jury trial

would be incompatible, without violating the Seventh

Amendment’s [jury trial protection],” because “Congress is not

30

required . . . to choke the already crowded federal courts with new

types of litigation or prevented from committing some new types

of litigation to administrative agencies with special competence in

the relevant field”).

The Legislature could have made the claim reflected in section

790.33 an administrative remedy, but it instead made the claim a

statutory right of action, allowing that action to be filed against

government officers and adjudicated in a court exercising judicial

power under Article V of the Florida Constitution. See

§ 790.33(3)(a), (f)1., Fla. Stat. In other words, for harm flowing

from a violation of section 790.33, the public right to sue the State

in court is the remedy. There was no sense requiring the plaintiffs

to pursue some alternative, administrative remedy first. By

direction of the Legislature, the circuit court has jurisdiction to

adjudicate the plaintiffs’ claim, making it, and not an agency of the

executive branch, the proper forum. The suit before it not being

one under Florida’s Declaratory Judgment Act, the circuit court

had no discretion to send the plaintiffs away—no choice but to

entertain the appellants’ statutory right of action according to the

terms legislatively established. The trial court, understandably,

was following Thrasher, a decision properly being abrogated today,

one inconsistent with Florida law.

Accordingly, I concur in the disposition and join parts I, II,

III.A, III.B.1, and IV of the court’s opinion.

B.L. THOMAS, J., concurs.

_____________________________

Eric J. Friday of Kingry & Friday, PLLC, Jacksonville; David S.

Katz and James D. Phillips of Katz & Phillips, P.A., Lake Mary;

and Noel H. Flasterstein of the Law Offices of Noel H. Flasterstein,

Boca Raton, for Appellants.

Kristen C. Diot, Jeffrey D. Slanker, Robert J. Sniffen, and

Matthew J. Carson of Sniffen & Spellman, P.A., Tallahassee, for

Appellees.

31