Under the home venue privilege, “venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters.”  Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 363-64 (Fla. 1977).

The First DCA recently addressed the privilege in Florida Fish and Wildlife Conservation Commission v. Gulf County.  The opinion can be accessed here.

The case began when Gulf County filed an action against the Commission in the Circuit Court for Gulf County.  The Commission then filed a motion to transfer venue to the Circuit Court for Leon County, which is where the Commission is headquartered.  The Commission relied on the home venue privilege as its basis to transfer venue.

The trial court denied the Commission’s motion.  To reach its decision, the court concluded that the home venue privilege arises from section 120.68(2)(a), Florida Statutes.  Based on this conclusion, the court reasoned that only those agencies subject to chapter 120, Florida Statutes, can assert the privilege.  Because the Commission was not an “agency” for purposes of chapter 120, the court decided the Commission could not assert the privilege.

The Commission appealed the order.  Although the order was nonfinal, nonfinal orders concerning venue are appealable under Florida Rule of Appellate Procedure 9.130(a)(3).

On appeal, the First DCA reversed.  The court noted that “[t]he source of the trial court’s error is its treatment of section 120.68(2)(a), Florida Statutes, as the origin of the home venue privilege.”

The court went on to hold that the privilege was established by common law and is not dependent on whether the government entity is subject to chapter 120.  As a result, the court reversed the order and held that the Commission was entitled to the privilege.

Finally, the court explained the “sword-wielder exception” to the privilege.  The exception applies where “direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff, directly threatened in the county where the suit is instituted.”  Conversely, the exception does not apply if “the primary purpose of the litigation is to obtain a judicial interpretation or declaration of a party’s rights or duties under . . . rules and regulations [promulgated by the agency].”

This case provides a good reminder that, when challenging agency or state action in circuit court, one must consider the home venue privilege before deciding where to file suit.

Jonathan Taylor is the Director of Appeals with The Law Offices of Moffa, Sutton, & Donnini, P.A.  Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals.  Mr. Taylor also volunteers with Guardian ad Litem to handle appellate matters.  Mr. Taylor can be reached at 954-234-2884 or jonathantaylor@floridasalestax.com.

Posted in Administrative Appeals, Administrative Law