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FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D21-1445
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F LORIDA SPRINGS C OUNCIL ,
Appellant,
v.
SUWANNEE R IVER W ATER
M ANAGEMENT DISTRICT and
SEVEN SPRINGS W ATER
C OMPANY ,
Appellees.
_____________________________
On appeal from Suwannee River Water Management District.
Virginia H. Johns, Chair.
November 30, 2022
P ER C URIAM.
This appeal presents the narrow procedural question of
whether Suwannee River Water Management District Rule 40B-
1.1010(2)(a) entitles Appellant to an administrative hearing. We
answer that question affirmatively.
I.
Seven Springs Water Company (“Water Company”) applied
for a permit from the Suwannee River Water Management District
(“Management District”) to collect water from Gilchrist County for

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bulk sale. The Management District announced that it planned to
deny the application. The Water Company petitioned for a formal
administrative hearing to challenge the proposed denial.
Appellant did not seek to intervene. After the formal hearing, an
administrative law judge (“ALJ”) ordered the Management
District to approve the Water Company’s permit application. The
Management District adopted the ALJ’s order under protest and
issued the permit.
Appellant, citing Management District Rule 40B-1.1010(2)(a),
petitioned for an administrative hearing to challenge the issuance
of the Water Company’s permit. However, the ALJ found that Rule
40B-1.1010(2)(a) did not entitle Appellant to a hearing. The ALJ
expressed concern that Appellant’s interpretation of the Rule to
create a second point of entry in the administrative process “would
mean that the administrative adjudicatory process would never
come to an end as new and former petitioners attempt to get the
same tribunals, DOAH and the District to rehear an unfavorable
legal ruling.” Accordingly, the ALJ directed the Management
District to dismiss Appellant’s petition. Concluding that it was
obligated to follow the ALJ’s order, the Management District
dismissed Appellant’s hearing petition “for the reasons set out” in
the ALJ’s order.
This appeal followed, in which Appellant maintains that it is
entitled to a hearing under Rule 40B-1.1010(2)(a).
II.
This Court uses a de novo standard when reviewing an
administrative agency’s conclusions of law. 1701 Collins Miami
Owner, LLC v. Dep’t of Revenue, 321 So. 3d 875, 878 (Fla. 1st DCA
2021). In relevant part, Rule 40B-1.1010 (“Point of Entry into
Proceedings”) of the Florida Administrative Code provides:
If final agency action materially differs from a written
notice of the District’s intended action, persons who may
be substantially affected shall have an additional 21 days,
or for a notice of consolidated intent an additional 14
days, from the date of receipt or publication of notice of
such action to request an administrative hearing. Such

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requests for an administrative hearing shall only address
those aspects of the agency action which differ from the
proposed agency action.
Fla. Admin. Code R. 40B-1.1010(2)(a) (emphasis added).
Here, the Management District published notice of its intent
to deny the Water Company’s permit application. Because
Appellant agreed with the Management District’s proposed action,
it had no basis to petition for a hearing at that time. See
Washington Cty. v. Nw. Fla. Water Mgmt. Dist., 85 So. 3d 1127,
1130–31 (Fla. 1st DCA 2012) (noting that injury in fact is among
the requirements to receive an administrative hearing). Appellant
argues that this changed once the Management District took its
“final” agency action by—in compliance with the ALJ’s order—
issuing the Water Company’s permit. See Sowell v. State, 136 So.
3d 1285, 1288 (Fla. 1st DCA 2014) (“Final agency action is that
which brings the administrative adjudicatory process to a close.”).
Appellant then petitioned for an administrative hearing under
Rule 40B-1.1010(2)(a).
“[A]dministrative rules must be interpreted according to their
plain language whenever possible.” Smith v. Sylvester, 82 So. 3d
1159, 1161 (Fla. 1st DCA 2012). Here, the plain language of Rule
40B-1.1010(2)(a) authorized Appellant’s hearing petition because
the Management District’s final action—issuing the Water
Company’s permit—was materially different from its proposed
action—denying the permit.
The Water Company questions the validity of the Rule,
arguing that when it challenged the Management District’s
proposed action, sections 120.569 and 120.57(1), Florida Statutes,
provided Appellants with a clear point of entry. The Water
Company argues that the rule impermissibly creates a second
point of entry. Even so, the Water Company has never challenged
the rule under section 120.57, Florida Statutes. For these reasons,
we express no opinion as to the wisdom of the Rule or whether the
Rule is an invalid exercise of delegated legislative authority. See
Goodman v. Fla. Dep’t of Law Enf’t, 238 So. 3d 102, 108 (Fla. 2018)
(noting that “duly promulgated agency rules” are “presumptively

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valid until invalidated”) (quoting City of Palm Bay v. State Dep’t of
Transp., 588 So. 2d 624, 628 (Fla. 1st DCA 1991)).
III.
Because the plain, unchallenged language of Rule 40B-
1.1010(2)(a) authorized Appellant’s hearing petition, it was error
to dismiss the petition with prejudice.* Therefore, we reverse
Management District Final Order 21-008—which was based on the
ALJ’s “Order Dismissing Petition and Closing File”—and remand
this case to the Management District for consideration consistent
with this opinion.
REVERSED and R EMANDED.
ROWE , C.J., and M AKAR and JAY , JJ., concur.
* The ALJ’s order also found that it lacked jurisdiction to
consider Appellant’s petition because the Management District
had a pending appeal in this Court that challenged its issuance
(under protest) of the Water Company’s permit. Ultimately, that
appeal ended in a dismissal under Rule of Appellate Procedure
9.350(a). The ALJ’s concern about interfering with a pending
appeal is understandable. See Thursby v. Stewart, 138 So. 742, 751
(Fla. 1931.) However, in such a circumstance, the better practice
is to dismiss the petition without prejudice or to hold the petition
in abeyance during the pendency of the appeal. See, e.g., Lindsay
v. State, 842 So. 2d 1057, 1058 (Fla. 4th DCA 2003) (“However,
even if the trial court lacked jurisdiction to rule on the instant
motion because of the pending direct appeal, instead of dismissing
the motion . . . the better practice would have been to stay the
motion until jurisdiction returned.”). This is particularly advisable
when—as happened in this case—the appellate court has issued a
show cause order in response to a motion to stay so that
jurisdiction could potentially be relinquished to the lower tribunal.

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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Douglas H. MacLaughlin, West Palm Beach, for Appellant.
Douglas P. Manson, Craig D. Varn, and Paria Shirzadi Heeter of
Manson Bolves Donaldson Varn, P.A., Tampa, for Appellee Seven
Springs Water Company.
Frederick T. Reeves of Davis, Schnitker, Reeves & Browning, P.A.,
New Port Richey; George T. Reeves of Davis, Schnitker, Reeves &
Browning, P.A., Madison, for Appellee Suwannee River Water
Management District.