Opinion
No. 1D20-412
03-11-2021
FLORIDA CARRY, INC., Appellant, v. John E. THRASHER, an individual, and Florida State University, Appellees.
Eric J. Friday of Kingry & Friday, PLLC, Jacksonville, for Appellant. Barry Richard of Greenberg Traurig PA, Tallahassee, for Appellees.
Eric J. Friday of Kingry & Friday, PLLC, Jacksonville, for Appellant.
Barry Richard of Greenberg Traurig PA, Tallahassee, for Appellees.
Per Curiam.
Florida Carry, Inc., sued Florida State University (FSU) and its president, asserting claims arising from administrative regulations and policies regarding the possession of firearms on campus. The trial court dismissed the action because Florida Carry had not exhausted the administrative remedies available pursuant to the process established by FSU under the authority of section 1001.706(2)(c), Florida Statutes (2020), which requires notice, public comment, and a "process for a substantially affected person to challenge a statement of general applicability that has not been properly adopted as a regulation" or "an unlawful regulation."
Florida Carry asserts that it may file a lawsuit directly in circuit court rather than be forced into pursuing available administrative remedies before doing so. No one questions that the Board of Governors has the authority to place "restrictions on activities and on access to facilities, firearms , food, tobacco, alcoholic beverages, distribution of printed materials, commercial solicitation, animals, and sound." Id. § 1001.706(7)(b) (emphasis added); see Florida Carry, Inc. v. Univ. of N. Fla. , 133 So. 3d 966, 975–76 (Fla. 1st DCA 2013). And no one questions Florida Carry's right to challenge the lawfulness of restrictions on firearms, particularly in light of section 790.33, Florida Statutes, which creates enforceable rights against state agencies that adopt unlawful enactments that conflict with state firearms laws.
The question is whether the rights set forth in section 790.33 are rendered meaningless by the available administrative remedy authorized by section 1001.706(2)(c). The answer is that both can co-exist without depriving a party of its constitutional or statutory rights absent extraordinary circumstances.
As a general rule, a litigant must exhaust available administrative remedies, but exceptions exist, such as when doing so would be futile or exigent circumstances exist that justify going directly into circuit court. See, e.g. , S. Bell Tel. & Tel. Co. v. Mobile Am. Corp., Inc. , 291 So. 2d 199, 201 (Fla. 1974) ("One is not required to pursue administrative remedies where such remedies would be of no avail."). No exception applies here, such that Florida Carry is required to exhaust an available administrative remedy—one specifically established in the context of the state university system—to potentially resolve the specific dispute at issue without first resorting to a judicial forum. See State, Dep't of Env't Regul. v. Falls Chase Special Taxing Dist. , 424 So. 2d 787, 794 (Fla. 1st DCA 1982) (noting that enactment of "new administrative remedies" had "severely curtailed the need for extraordinary judicial relief" such that "[o]nly in exceptional cases may the courts assume jurisdiction to render declaratory and/or injunctive relief without requiring exhaustion of administrative remedies").
Given the legislative directive that state universities provide administrative remedies to substantially affected parties, such as Florida Carry, and the absence of circumstances justifying by-passing those remedies, the trial court did not err in its dismissal for failure to exhaust remedies under section 1001.706(2)(c).
AFFIRMED .
Lewis and Makar, JJ., concur; Long, J., concurs with opinion.
Long, J., concurring.
I concur with the Court's opinion. The general rule of exhaustion of administrative remedies applies to Florida Carry's claims. And Florida Carry has not demonstrated that the nature of the claims qualifies for an exception.
I write separately to highlight an issue raised by Florida Carry that the administrative process may assist in resolving. The issue involves the requirement that university rules comport with statutory regulation of firearms. § 790.33(1), (2)(a), Fla. Stat. (2020) (providing for "uniform firearms laws in the state" by "occupying the whole field of regulation of firearms and ammunition."). A university code provision at issue in this litigation addresses the parameters for on-campus possession of firearms "within the interior of a private vehicle." A controlling statute exists covering the same regulated behavior but includes a more specific provision excepting "legal firearm[s] other than a handgun."
Section VII(F)(1)(c) of Florida State University's Student Conduct Code provides an exception from the university's prohibition of firearms for:
a concealed firearm or other weapon kept for lawful purposes with or without a license by persons 18 years or older within the interior of a private vehicle, provided that such a firearm is not carried on the person and provided that a firearm or other weapon must be kept securely encased; or otherwise not readily accessible for use, consistent with section 790.25(5), Florida Statutes."
Section 790.25(5), Florida Statutes (2020), states:
[I]t is lawful ... for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use.
A determination is needed regarding whether the rule and the statute can co-exist or if there is a pre-emptive conflict. The administrative process can address this without first resorting to the courts. That process can also assist appellate decision-making if an appeal results.