BAM Trading Services, Inc., D/B/A Binance.US v. State of Florida, Office of Financial Regulation

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-3371

_____________________________

BAM TRADING SERVICES, INC.,

d/b/a Binance.US,

Petitioner,

v.

STATE OF FLORIDA, OFFICE OF

FINANCIAL REGULATION,

Respondent.

_____________________________

On appeal from the Office of Financial Regulation.

Russell C. Weigel, III, Commissioner.

October 17, 2024

EN BANC

B.L. THOMAS, J.

Having previously granted Respondent’s motion for rehearing

en banc, we substitute the following opinion for the panel opinion

previously issued.

Petitioner seeks review of an Emergency Suspension Order

(ESO) on the grounds that it is facially deficient under section

120.60(6), Florida Statutes, and should therefore be quashed. We

agree.

Facts

Petitioner is a Florida-based digital assets company doing

business as Binance.US, under a money-services business license

supervised by the Office of Financial Regulation (OFR). Binance

Holdings Limited (Binance Holdings) is an affiliate company of

Petitioner doing business as Binance.com. Changpeng Zhao (Zhao)

is the former CEO of Binance Holdings. Zhao has held an indirect

ownership stake in Petitioner since 2019 and was Petitioner’s

Chairman of the Board of Directors.

In November 2023, Zhao and Binance Holdings entered

federal plea agreements for not implementing Anti-Money

Laundering (AML) and Bank Secrecy Act compliance programs.

Later, Zhao stepped down as Petitioner’s Chairman of the Board

of Directors and relinquished his voting rights in Petitioner

through a proxy arrangement.

On November 29, 2023, following the plea deals involving

Zhao and Binance Holdings, OFR issued the emergency

suspension order (ESO) on review. The order suspended

Petitioner’s money-services business license and directed

Petitioner to cease and desist from engaging in money

transmission activity. It asserted that under section 560.114(2)(c),

Florida Statutes, an immediate serious danger to the public

health, safety, and welfare exists whenever “a natural person who

is required to be listed on a licensee’s application for a money

services business license pursuant to section 560.141(1)(a)3., is

criminally charged with, or arrested for, among other things, a

crime described in section[] 560.114(1)(o), Florida Statutes.”

The order made factual findings that Zhao was Petitioner’s

“Controlling Shareholder,” an indirect owner, and a control person

of Petitioner “whose name must be listed on its license

application,” as well as CEO of Binance Holdings. It found that

Zhao was criminally charged with violating the Bank Secrecy Act

by willfully causing Binance Holdings to fail to maintain and

implement an effective AML program in violation of 31 U.S.C.

§§ 5318(h) and 5322(b), (c), and (e) and 31 C.F.R. § 1022.210

during the timeframe between August 2017 and October 2022.

Zhao admitted in his plea agreement that as founder and CEO he

willfully evaded the requirements in the Bank Secrecy Act

2

regarding registration and the AML, prioritizing growth and

profits over compliance with U.S. law. He advised staff that it was

“better to ask for forgiveness than permission” in what he

described as a “grey zone,” and he believed that compliance would

have interfered with gaining market share and increasing profits.

The order also found that Zhao had been charged under federal

law with a crime involving fraud, moral turpitude, or dishonest

dealing, falling within the category of offense described in

section 560.114(1)(o), Florida Statutes.

The order then includes a conclusion of law that Zhao’s

conduct constituted grounds for suspending Petitioner’s license

under section 560.114(1)(o). The order also concluded that because

the conduct occurred on an ongoing basis during the licensed

operation of Petitioner, the continued operation of Petitioner

constituted an immediate danger to the public health, safety, and

welfare necessitating an emergency suspension.

Jurisdiction

The Court has “the power of direct review of administrative

action, as prescribed by general law.” Art. V, § 4(b)(2), Fla. Const.

By general law, the Legislature has authorized this court to review

“a preliminary, procedural, or intermediate order of [an] agency if

review of the final agency decision would not provide an adequate

remedy.” § 120.68(1)(b), Fla. Stat. (2023). Review of agency orders

suspending a license purported under the authority of

section 120.60(6), Florida Statutes, is by “petition for review.”

See Fla. R. App. P. 9.190(b)(2); 9.100(c)(3). Further,

section 120.60(6)(c), Florida Statutes states that “[t]he agency’s

findings of immediate danger, necessity, and procedural fairness

are judicially reviewable.”

Standard of Review

We respectfully decline to apply the “scope of review” of non-

final agency action as defined in State v. Murciano, 163 So. 3d 662,

664–65 (Fla. 1st DCA 2015), because that definition is not

grounded in or authorized by section 120.68(7), Florida Statutes,

which specifically defines our authority in such cases:

3

The court shall remand a case to the agency for further

proceedings consistent with the court’s decision or set

aside agency action, as appropriate, when it finds that:

....

(c) The fairness of the proceedings or the correctness of

the action may have been impaired by a material error in

procedure or a failure to follow prescribed procedure;

(d) The agency has erroneously interpreted a provision

of law and a correct interpretation compels a particular

action[.]

§ 120.68(7), Fla. Stat. (emphasis added).

We note that in Murciano, this Court stated that the “scope of

review” of non-final agency action was “‘no broader than the right

of review by common law certiorari.’” 163 So. 3d at 664 (quoting

CNL Resort Hotel, L.P. v. City of Doral, 991 So. 2d 417, 420 (3d

DCA 2008) (quoting Fla. Dept. of Financial Servs. v. Fugett, 946

So. 2d 80, 81 (Fla. 1st DCA 2006)). Respectfully, this is an incorrect

statement of the nature of our review, the statement originating in

a prior decision of this Court in Charlotte County v. General

Development Utilities, Inc., 653 So. 2d 1081 (Fla. 1st DCA 1995).

In that decision, this Court relied on the following proposition from

a committee note:

Our review of the PSC order here at issue is

pursuant to section 120.68(1), Florida Statutes, which

provides in part:

(1) A party who is adversely affected by

final agency action is entitled to judicial review

. . . . A preliminary, procedural, or intermediate

agency action or ruling, including any order of a

hearing officer, is immediately reviewable if

review of the final agency decision would not

provide an adequate remedy.

The Committee Notes to Florida Rule of Appellate

Procedure 9.100(c),2 explain that the statutory authority

4

to review non-final administrative action is analogous to

and no broader than the right of review by common law

writ of certiorari.

653 So. 2d at 1084 (emphasis added).

The decision in Charlotte County further stated in footnote

two that:

The Committee Notes to rule 9.100(c) state:

It was the opinion of the Advisory

Committee that such a right of review is

guaranteed by the statute and is not dependent

on a court rule, since Article V, Section 4(b)(2) of

the Florida Constitution provides for legislative

grants of jurisdiction to the district courts to

review administrative action without regard to

the finality of that action. The Advisory

Committee was also of the view that the right of

review guaranteed by the statute is no broader

than the generally available common law writ of

certiorari, although the statutory remedy would

prevent resort to an extraordinary writ.

653 So. 2d at 1084 n.2 (emphasis added).

This committee note cannot be authority to narrow this

Court’s standard of review granted by the organic and general law,

as that committee note itself seemed to recognize. We cannot and

will not rely on this incorrect proposition to deprive a party of their

statutory right to “immediate” judicial review of “a preliminary,

procedural, or intermediate order of [an] agency” . . . if [final]

review of the final agency decision would not provide an adequate

remedy.” § 120.68(1)(b) Fla. Stat. (2023).

We note that, despite the broad statements about the scope of

review under section 120.68(1) in Murciano, Fugett, and Charlotte

County, in the context of ESO’s under section 120.60(6), this Court

has not employed a limited certiorari scope of review. Rather, in a

long line of cases, we have cited section 120.68(1) as our authority

to review the non-final orders at issue and then proceeded to assess

5

whether the ESO’s on their face satisfied the requirements of

section 120.60(6). See, e.g., Renner v. Dep’t of Health, 355 So. 3d

552 (Fla. 1st DCA 2023) (holding that ESO was not as narrowly

tailored as possible under the circumstances); Webber v. State,

Dep’t of Bus. and Prof. Reg, 198 So. 3d 922 (Fla. 1st DCA 2016)

(citing section 120.68(1)(b), Fla. Stat. and Fla. R. App. P. 9100(a)

and holding that the ESO did not establish the elements required

under 120.60(6) because it “fail[ed] to demonstrate on its face an

immediate and recurring threat to the public and the license

suspension is not a narrowly tailored remedy”); Mendelsohn v.

State, Dep’t of Health, 68 So. 3d 965 (Fla. 1st DCA 2011) (citing

section 120.68(1), Fla. Stat. and holding that ESO failed to provide

“specific reasons why the suspension is necessary to prevent

immediate harm to the public”).

Furthermore, neither the constitution nor the Legislature

equated our review to the demanding standard applicable to

common law certiorari review as noted above. In addition, in

section 120.60(6), the Legislature provided that such orders are

subject to “judicial review” as we discuss in more detail below.

Where the organic law authorizes the Legislature to define our

jurisdiction and review of non-final agency action, respectfully, we

are not at liberty to disregard those binding definitions based on

prior erroneous judicial decisions inconsistent with applicable

organic and general law. We therefore overrule the erroneous

holdings in Murciano, Fugett, Charlotte County, and any other

decision where we held that our scope of review under section

120.68(7) “is analogous to and no broader than the right of review

by common law certiorari.” Charlotte County, 653 So. 2d at 1084.

Analysis

The ESO contains a material error in procedure and an

erroneous interpretation of sections 560.114(2) and 120.60(6),

Florida Statutes.

Section 560.114(2) states:

Pursuant to s. 120.60(6), the office may summarily

suspend the license of a money services business if the

office finds that a licensee poses an immediate, serious

danger to the public health, safety, and welfare. A

6

proceeding in which the office seeks the issuance of a final

order for the summary suspension of a licensee shall be

conducted by the commissioner of the office, or his or her

designee, who shall issue such order. The following acts

are deemed to constitute an immediate and serious

danger to the public health, safety, and welfare, and the

office may immediately suspend the license of a money

services business if:

....

c) A natural person required to be listed on the

license application for a money services business

pursuant to s. 560.141(1)(a)3. is criminally charged with,

or arrested for, a crime described in paragraph (1)(o),

paragraph (1)(p), or paragraph(1)(q).

Section 560.114(1) states:

The following actions by a money services business,

authorized vendor, or affiliated party constitute grounds

for the issuance of a cease and desist order; the issuance

of a removal order; the denial, suspension, or revocation

of a license; or taking any other action within the

authority of the office pursuant to this chapter:

....

(o) Having been convicted of, or entered a plea of

guilty or nolo contendere to, any felony or crime

punishable by imprisonment of 1 year or more under the

law of any state or the United States which involves

fraud, moral turpitude, or dishonest dealing, regardless

of adjudication.

Section 120.60(6) states:

If the agency finds that immediate serious danger to

the public health, safety, or welfare requires emergency

suspension, restriction, or limitation of a license, the

agency may take such action by any procedure that is fair

under the circumstances if:

7

....

(c) The agency states in writing at the time of, or

prior to, its action the specific facts and reasons for

finding an immediate danger to the public health, safety,

or welfare and its reasons for concluding that the

procedure used is fair under the circumstances. The

agency’s findings of immediate danger, necessity, and

procedural fairness are judicially reviewable. Summary

suspension, restriction, or limitation may be ordered, but

a suspension or revocation proceeding pursuant to

ss. 120.569 and 120.57 shall also be promptly instituted

and acted upon.

(Emphasis added).

Here, the ESO did not state the specific reasons for concluding

that the procedures it used were fair under the circumstances.

Rather, it relied on section 560.114(2) as authorizing OFR to

suspend the license. However, the statute itself says the agency

needs to provide reasons and only that the agency may suspend

the license. See § 120.60(6), Fla. Stat. The usage of “may” in the

statute implies discretion, rather than obligation. Additional

reasoning beyond mere reference to the statute is necessary to

suspend the license, given the property interest at stake here and

potential harm discussed below.

The ESO further fails to discuss alternative remedies or why

less-harsh remedies would be insufficient to address the purported

emergency. It offers no explanation why a less-drastic measure to

license suspension and complete termination of Petitioner’s

business in Florida are insufficient to stop the alleged harm.

Indeed, the ESO fails to address, or even acknowledge, that the

potential harm here from the ESO is significant. Suspending

Petitioner’s license threatens significant financial losses to more

than 170,000 accounts in Florida. Unlike most traditional money

transmitters, Petitioner holds significant digital assets on behalf

of its Florida customers. For Petitioner to immediately comply

with the ESO, it would be necessary to liquidate the digital asset

holdings of every customer. A forced and untimely sale of Florida

customers’ digital assets threatens financial harm because of

digital asset price fluctuations. In addition, an account holder who

8

is forced to sell a digital asset at a price higher than a cost basis

would incur unplanned and extensive tax liabilities. To comply

with the requirements of section 120.60(6)(c) highlighted above,

OFR needed to state why the drastic and disruptive measure of an

ESO was “fair under the circumstances.” It did not do so, and we

must set the ESO aside. See § 120.68(7)(c), Fla. Stat.

SET ASIDE.

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

WINOKUR, M.K. THOMAS, NORDBY, TANENBAUM, and LONG, JJ.,

concur.

ROWE, J., concurs with an opinion.

BILBREY, J., concurs with an opinion in which LEWIS, ROBERTS,

KELSEY, and M.K. THOMAS, JJ., join.

KELSEY, J., concurs in result.

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

and WINOKUR, JJ., join.

_____________________________

Not final until disposition of any timely and

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

9.331.

_____________________________

ROWE, J., concurring.

I fully concur in the majority opinion. I write only to point out

that nothing in the en banc opinion addresses the reasons the court

ordered en banc review. Some judges may have voted to order en

banc rehearing on the ground that rehearing was “necessary to

maintain uniformity in the court’s decisions.” See Fla. R. App. P.

9.331(d)(1). Some judges may have voted to order en banc

rehearing on the ground that “the case or issue is of exceptional

importance.” Id. And still other judges may have voted against

9

ordering en banc rehearing. See Fla. R. App. P. 9.331(a) (providing

that en banc proceedings may occur upon order by “[a] majority of

the participating judges of a district court of appeal.”).

In my view, en banc rehearing of the panel decision was not

necessary to maintain uniformity in the court’s decisions. As

explained on pages five and six of the en banc opinion, in reviewing

nonfinal agency action, this court has not always applied the

limited certiorari scope of review discussed in State v. Murciano,

163 So. 3d 662, 664–65 (Fla. 1st DCA 2015)—at least not in the

context of the court’s decisions addressing emergency suspension

orders under section 120.60(6), Florida Statutes. The panel opinion

did not announce a rule of law which conflicts with the court’s

decisions addressing emergency suspension orders. Rather, the

panel opinion was entirely consistent with that line of authority.

For this reason—in my view—there was no need to order en banc

rehearing to maintain decisional uniformity. See Chase Fed. Sav.

& Loan Ass’n v. Schreiber, 479 So. 2d 90, 94 (Fla. 1985) (“We

expressly granted the district courts broad discretionary authority

‘to develop their own concept of decisional uniformity. . .’”) (quoting

In re Florida Rules of Appellate Procedure, 374 So. 2d 992, 994

(Fla. 1979)).

BILBREY, J., concurring.

I fully concur in the majority opinion and in the decision to

rehear the case en banc to unambiguously recede from erroneous

precedent. The en banc majority opinion and Judge Rowe in her

concurring opinion are correct that we have not consistently

followed our statement in Murciano I that our “scope of review” of

nonfinal agency action is “no broader than the right of review by

common law certiorari.” State v. Murciano, 163 So. 3d 662, 664

(Fla. 1st DCA 2015) (citations omitted). But we have cited

Murciano I for this proposition as recently as this year. See Agency

for Health Care Admin. v. Murciano, 381 So. 3d 1283, 1286 (Fla.

1st DCA 2024). We are correct to consider the issue en banc so we

can make a clean break from our holding in both Murciano cases,

as well as others, and leave interested parties with no doubt as to

our scope of review when considering a challenge to nonfinal

agency action. Otherwise, the “‘older is better’ versus ‘later is

10

greater’” debate again ensues over which line of cases is binding.

See K. K. Berman, A. Richardson & R. Scavone, A Not-So-Little

Problem with Precedent: Intra-District Conflict in Florida District

Courts of Appeal, 97 Fla. Bar J. 14, 14 (Jan./Feb. 2023).

“[A] three-judge panel of a district court should not overrule

or recede from a prior panel’s ruling on an identical point of the

law.” See In re Rule 9.331, Determination of Causes by a District

Court of Appeal En Banc, Florida Rules of Appellate Procedure,

416 So. 2d 1127, 1128 (Fla. 1982). In considering this case en banc,

we are correctly adhering to the firmly established prior panel

precedent doctrine. See Taylor Eng’g, Inc. v. Dickerson Fla., Inc.,

221 So. 3d 719, 723 n.3 (Fla. 1st DCA 2017) (calling the doctrine

“well-established”).

When faced with erroneous precedent, barring a decision from

a higher court or a legislative change, we are required to consider

the matter en banc before we can recede from it. See Wanless v.

State, 271 So. 3d 1219, 1223 (Fla. 1st DCA 2019) (“We are of course

bound to follow our own decisions unless and until an intervening

decision from the Florida Supreme Court, the United States

Supreme Court, or this court sitting en banc compels otherwise.”);

see also Sims v. State, 260 So. 3d 509, 514 (Fla. 1st DCA 2018);

Adams v. State, 188 So. 3d 849, 851 (Fla. 1st DCA 2012). ∗ Failing

∗

Except the relatively new Sixth District, which has

apparently not addressed the issue, the prior panel precedent

doctrine is followed by all Florida district courts. See, e.g., State v.

Crose, 378 So. 3d 1217, 1243–44 (Fla. 2d DCA 2024) (en banc);

State v. Washington, 114 So. 3d 182, 188–89 (Fla. 3d DCA 2012);

Fox v. Fox, 262 So. 3d 789, 792 (Fla. 4th DCA 2018) (en banc);

Williams v. Salt Springs Resort Ass’n, 298 So. 3d 1255, 1256 (Fla.

5th DCA 2020) (en banc). This aligns with how the United States

Eleventh Circuit Court of Appeals treats prior panel precedent.

See United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2023);

see also Scott v. United States, 890 F.3d 1239, 1257 (11th Cir. 2018)

(requiring the prior panel precedent “rule” be applied even when

the subsequent panel is convinced that the earlier panel was

wrong). Unlike Judge Tanenbaum, I do not think I am, or the

judges on this court, our sister district courts, or federal circuit

judges are violating our oaths of office when we follow prior panel

11

to adhere to prior panel precedent without en banc consideration

opens the possibility for chaos and uncertainty to reign. See In re

Rule 9.331, 416 So. 2d at 1128 (“[I]f intra-district conflict is not

resolved within the district courts by en banc decision, totally

inconsistent decisions could be left standing and litigants left in

doubt as to the state of law”); see also Rogers v. State, 296 So. 3d

500, 519 n.1 (Fla. 1st DCA 2020) (Bilbrey, J., concurring). I

appreciate my colleagues’ willingness to consider this matter en

banc to provide certainty to the bench, bar, and litigants that the

majority of the court has not abandoned the prior panel precedent

doctrine.

TANENBAUM, J., concurring.

The only meaning to be read into the court’s decision to

consider this case sitting en banc is its clear approval of the holding

originally set out by the panel majority: abrogation of any previous

suggestion by this court that the scope of review under section

120.68(1)(b), Florida Statutes, “is analogous to and no broader

than the right of review by common law certiorari.” The now-en-

banc opinion—nearly identical to the panel opinion that preceded

it (and having the same author, by the way)—says nothing about

a renewed adherence to—or decision not to abandon—any so-

called “doctrine” pertaining to prior panel decisions.

I previously have written extensively about how “the idea that

three independent judicial officers constituting one of this court’s

panels are legally ‘bound’ by a decision of a prior panel of

equivalent judicial officers comes from . . . nowhere,” certainly

“nowhere in the law”; or how the so-called “prior panel precedent”

(or “horizontal precedent”) rule or “doctrine” remains “a fallacy, a

figment, a chimera,” having “no basis in our state constitution or

in any statute.” Normandy Ins. Co. v. Bouayad, 372 So. 3d 671,

694–99 (Fla. 1st DCA 2023) (Tanenbaum, J., concurring). I

continue to pose this challenge to the so-called “doctrine’s”

precedent despite disagreeing with the prior panel’s holding.

Instead, for Florida district court judges we are complying with

guidance of the Florida Supreme Court as stated in In re Rule

9.331.

12

adherents: Provide one—just one—citation to a constitutional or

statutory provision that requires a judge to vote against his or her

oath 1 of office and blithely hew to a decision of another panel that

is clearly contrary to what the substantive law is. 2 Nothing has

been forthcoming. Instead, the only response seems to be

hackneyed citations to a few prior panels’ opinions that have

similarly just pronounced the rule (without citation to a source of

law) 3 and one 1982 rule opinion (read: not a decision or judicial

disposition) of the supreme court that actually rejected a proposal

to adopt as a court rule the very “doctrine” many district court

judges still profess to accept and follow. Cf. id. at 695 (Tanenbaum,

J., concurring) (explaining why In re Rule 9.331—an

administrative decision of the supreme court, almost exclusively

cited by proponents as authority for the “doctrine,” rejecting the

very rule we are discussing—both does not count as a source of law

for the “doctrine” and has been contradicted by real supreme court

dispositions since then).

Call it a “rule” or a “doctrine,” but reflexively strict adherence

to a prior panel’s legal conclusion or holding—regardless of its

reliance on deeply flawed logic, its distortion of the legal text, or

the abject lack of analysis to support it—at best reflects an

1 The oath of which I speak is as follows: “I do solemnly swear

(or affirm) that I will support, protect, and defend the Constitution

and Government of the United States and of the State of Florida;

that I am duly qualified to hold office under the Constitution of the

state; and that I will well and faithfully perform the duties of

[district appellate judge] on which I am now about to enter. So help

me God.” Art. II, § 5(b), Fla. Const.

2 Otherwise, the epistemological razor stated by author

Christopher Hitchens applies: “What can be asserted without

evidence can also be dismissed without evidence.”

3 Proponents of the “doctrine” engage in something close to

question-begging (or, perhaps, circular reasoning) by citing prior

panel decisions to definitively support their view that they, as

members of a subsequent panel, are “required” to follow a

holding—erroneous as it may be—of an earlier panel unless, with

a couple exceptions, the matter is considered by the court en banc.

13

individual judge’s “article of faith” within a broader judicial

philosophy, a pronouncement of that judge’s approach to judging.

A judge of course is free to announce “adherence” to this deciding

of cases in a hands-tied manner (unless the judge can find a way

to distinguish a disliked holding based on a factual difference).

Just the same, a judge could divulge a preference for relying on

legislative staff analyses, floor speeches, and empirical data—or,

horror of horrors, on an online dictionary rather than a

contemporaneous physical one, or exclusively on whatever Bryan

A. Garner says—to answer difficult statutory interpretation

questions. Simply put, each judge approaches the job with his or

her own set of judicial values and mode of thinking, while

remaining faithful to the law as he or she sees it, and honoring

ethical expectations set for us all.

Under these considerations, there is no authority for this

court’s en-banc procedure to serve as a vehicle for some members

to impose their judicial philosophy on other members who do not

buy into it. Some judges, including me, take the view—as a matter

of judicial philosophy—that another panel of the same appellate

court does not hold the status of our supreme court and lacks writ

or other enforcement powers to compel violations of their oath (as

they understand it) to follow and faithfully apply the text of the

constitution and statutes. Cf. Gamble v. United States, 587 U.S.

678, 714–18 (2019) (Thomas, J., concurring) (quotation and

citation omitted) (discussing the common-law origins of stare

decisis principles; how “the founding generation understood that

an important function of the Judiciary in a common-law system

was to ascertain what reason or custom required, that it was

possible for courts to err in doing so, and that it was the Judiciary’s

responsibility to examine without fear, and revise without

reluctance, any hasty and crude decisions rather than leaving the

character of [the] law impaired, and the beauty and harmony of

the system destroyed by the perpetuity of error”; how “courts today

look to different sources of law when exercising the judicial power

than did the common-law courts of England”; how “[u]nderlying

this legal system is the key premise that words, including written

laws, are capable of objective, ascertainable meaning”; how “[a]

demonstrably incorrect judicial decision, by contrast, is

tantamount to making law, and adhering to it both disregards the

supremacy of the Constitution and perpetuates a usurpation of the

14

legislative power”; and how the “Constitution does not mandate

that judicial officers swear to uphold judicial precedents”; so:

“When faced with a demonstrably erroneous precedent, my rule is

simple: We should not follow it.”). Saying, then, that the public can

derive some “certainty” from the present en banc decision that the

so-called “doctrine remains operative at the court” is not a logically

valid conclusion. Respectfully, this en-banc decision provides no

such certainty, as it is entirely silent on the reasoning behind the

court-ordered en-banc consideration.

There are a variety of reasons that might motivate a judge to

vote to order en-banc rehearing. As for me, very little difference

exists between the original panel opinion that I signed onto and

the now-en-banc opinion that most of us are signing onto—so why

would I not vote for the en-banc version? That does not equate to

my validation of a “doctrine” I repeatedly—publicly—have

renounced. I agree that a super-majority of the judges on this court

“going on the board” as to their agreement with the panel

majority’s holding here helps give assurance that “we really mean

it”: that it is not statutorily correct to say that direct review of non-

final agency action under section 120.68(1)(b) is no broader than

certiorari review. But ordering en-banc consideration was not

necessary to validate this negation of an incorrect statement of the

law. This renunciation would have been every bit as valid (and

logically and legally sound) if it had remained as just the decision

of our panel. On this front, despite an unsupported suggestion in

an article in the Florida Bar Journal, there is no controversy—no

question, even—regarding which of two conflicting panel holdings

is controlling from the perspective of trial courts. The supreme

court has addressed this more than once, each time treating the

subsequent (read: later) panel holding as the prevailing “decisional

law” within the district court’s jurisdiction. See Little v. State, 206

So. 2d 9, 10 (Fla. 1968) (“If the two [panel] decisions conflicted, the

only result would be that the instant decision, being later in point

of time, would overrule Allison as the decisional law in the First

District.” (emphasis supplied)); State v. Walker, 593 So. 2d 1049,

1050 (Fla. 1992) (citing Little and dispensing with jurisdiction as

being improvidently granted after a subsequent panel of the First

District Court of Appeal reached a decision that effectively

overruled a prior panel decision, thereby obviating a “direct and

express conflict” that had existed between the prior panel and the

15

Fourth District Court of Appeal); R.J. Reynolds Tobacco Co. v.

Marotta, 214 So. 3d 590, 604 (Fla. 2017) (“Alternatively, to the

extent that these [panel] cases do conflict, the difference could be

attributed to a change in the Fourth District’s position regarding

implied conflict preemption in tobacco product liability cases.”

(citing Little for the proposition quoted above)).

And the supreme court’s position on this makes sense. Each

panel has the authority to exercise judicial power in the name of

the court. See Art. V, §§ 1, 4(a) (vesting judicial power in “district

courts of appeal” but providing that “[t]hree judges shall consider

each case and the concurrence of two shall be necessary to a

decision”); cf. Art. V, § 4(a), (b), Fla. Const. (1885) (as revised 1940)

(providing that the supreme court “may exercise its powers and

jurisdiction in divisions,” and, with some exceptions, “the

judgment of a division concurred in by the Chief Justice shall be

the judgment of the Court”). Every opinion goes on pre-release for

some duration that allows every judge on our court an opportunity

to review it and ask the court to countermand a panel decision to

recede from or overrule a prior panel’s decision. In fact, our

internal operating procedures provide for the following:

If a majority of a panel votes to join in an opinion (as

defined in IOP 5.4.1) containing analysis necessary to the

disposition on a point of law that directly conflicts with

analysis on the same point of law contained in a final

opinion of a prior panel of this court or of this court sitting

en banc, the primary judge or the senior judge of the

panel shall request an en banc vote of the court pursuant

to IOP 6.5.

First Dist. Ct. of Appeal I.O.P. 6.3 (Dec. 2023). Even if the court

had not ordered en banc rehearing in this case, rest assured, if a

majority of our court disagreed with the panel’s disposition, the

panel’s opinion never would have seen the light of day. A panel-

majority’s opinion, once released, carries with it the full

imprimatur of our court. See Little, 206 So. 2d at 10; Marotta, 214

So. 3d at 604. That the en-banc court is adopting the panel-

majority opinion in this instance can be seen simply as an exercise

of good government: bolstering the public’s confidence that—the

issue having been carefully considered—we all agree, as Judge

16

Bilbrey characterizes it, with making “a clean break” from a prior

pronouncement of this court; stating clearly and with nearly one

voice that a certiorari standard for review of non-final agency

action was wrong—just as the panel in this case had said.

Let me close by addressing the “sky is falling” wails in OFR’s

motion for rehearing. The failure to adhere to this rule, or

“doctrine,” does not equate to legal chaos, does not presage the

dawn of uncertainty’s reign. This fear at best is speculative—albeit

mentioned often—lacking any evidence to support it. Each of us

takes our responsibilities as an appellate judge seriously. We are

quite aware of our place in the state judicial constellation—as the

court of last resort in almost all cases coming from the trial courts

of our district. None of us would consider putting aside a prior

panel decision of this court willy-nilly. So the overwrought

statements about the dangers of legal “uncertainty” are

unfounded. Cf. Gamble, 587 U.S. at 723–25 (Thomas, J.,

concurring) (speaking to the concerns of “uncertainty” and

“instability” that might flow from overturning precedent, noting

that “[t]he true irony of our modern stare decisis doctrine lies in

the fact that proponents of stare decisis tend to invoke it most

fervently when the precedent at issue is least defensible,” also

stating that “we would eliminate a significant amount of

uncertainty and provide the very stability sought if we replaced

our malleable balancing test with a clear, principled rule grounded

in the meaning of the text”). I would go so far as to note there are

sufficient guardrails in place: the main purpose of having an en-

banc procedure being to allow the court as a whole resolve

persistently conflicting or frequently vacillating holdings among

different panels of the court.

OFR and the public can take heart that the “doctrine of stare

decisis” prevails here, just as it does at the supreme court, which

is to say it “bends where there has been a significant change in

circumstances since the adoption of the legal rule, or where there

has been an error in legal analysis.” Puryear v. State, 810 So. 2d

901, 905 (Fla. 2002) (internal citation omitted). As the supreme

court more recently explained:

We believe that the proper approach to stare decisis is

much more straightforward. In a case where we are

17

bound by a higher legal authority—whether it be a

constitutional provision, a statute, or a decision of the

Supreme Court—our job is to apply that law correctly to

the case before us. When we are convinced that a

precedent clearly conflicts with the law we are sworn to

uphold, precedent normally must yield.

We say normally because stare decisis means sticking to

some wrong decisions. Indeed, stare decisis has

consequence only to the extent it sustains incorrect

decisions; correct judgments have no need for that

principle to prop them up. But once we have chosen to

reassess a precedent and have come to the conclusion that

it is clearly erroneous, the proper question becomes

whether there is a valid reason why not to recede from

that precedent.

The critical consideration ordinarily will be reliance. It is

generally accepted that reliance interests are at their

acme in cases involving property and contract rights. And

reliance interests are lowest in cases—like this one—

involving procedural and evidentiary rules.

State v. Poole, 297 So. 3d 487, 506–07 (Fla. 2020), as clarified on

denial of reh’g (Apr. 2, 2023) (all but last emphasis supplied;

internal quotations and citations omitted).

Words to judge by indeed, and so they were in this case.

_____________________________

M. Drew Parker, Radey Law Firm, Tallahassee, for Petitioner.

William H. Stafford III and Emily J. Witthoeft, Department of

Legal Affairs, Tallahassee; and Brandon M. Greenberg and

Melinda H. Butler, Office of Financial Regulation, Tallahassee, for

Respondent.

18