IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
BISCAYNE BAY PILOTS, INC., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-2033
FLORIDA CARIBBEAN-CRUISE
ASSOCIATION,
Respondent.
___________________________/
Opinion filed November 9, 2015.
Petition for Writ of Prohibition.
Donna E. Blanton of Radey Law Firm, Tallahassee; Robert Peltz of The Peltz Law
Firm, Miami, for Petitioner.
Thomas F. Panza of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for
Respondent.
PER CURIAM.
Biscayne Bay Pilots, Inc. (BBP) petitions this Court for a writ of prohibition,
seeking review of the orders entered by Commissioners Thomas Burke and Enrique
Miguez of the Pilotage Rate Review Committee (the Committee) denying BBP’s
motion to disqualify them from participating in the proceedings initiated by Florida
Caribbean-Cruise Association (FCCA) to reduce pilotage rates for PortMiami.
Because the motion for disqualification was legally sufficient and should have been
granted, we grant the petition for writ of prohibition and quash the orders denying
the motion.
FCCA, a not-for-profit organization comprised of fifteen member cruise lines,
filed an application with the Committee seeking a reduction in pilotage rates for
PortMiami. Pursuant to section 120.655, Florida Statutes, BBP filed a motion to
disqualify Commissioners Burke and Miguez from serving on the Committee
because Burke and Miguez are senior executives of Carnival Cruise Lines and Royal
Caribbean, which are members of FCCA. BBP asserted that it had a well-founded
fear that it would not receive a fair and impartial hearing, that it was reasonable to
assume that the Commissioners would have prejudged FCCA’s application, and that
it was reasonable to assume that the Commissioners were prepared to vote in favor
of the rate reduction. At the hearing on FCCA’s application, the Committee and
Commissioners Burke and Miguez orally denied the motion for disqualification.
The Committee reduced its denial to writing and BBP sought review of the order via
a writ of prohibition filed in this Court. Biscayne Bay Pilots, Inc. v. Fla. Caribbean-
Cruise Ass’n, 160 So. 3d 559 (Fla. 1st DCA 2015) (Biscayne Bay Pilots I).
In Biscayne Bay Pilots I, this Court concluded that the Committee properly
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denied the motion for disqualification because it did not have the authority to
disqualify individual members of the Committee. Id. at 563. We also held that we
did not have jurisdiction to review Commissioners Burke’s and Miguez’s denial of
the motion because their rulings were not reduced to writing. Id. at 563-64. After
the issuance of the opinion in Biscayne Bay Pilots I, Commissioners Burke and
Miguez filed written orders denying the motion for disqualification. BBP, by way
of a writ of prohibition, seeks review of those orders.
A petition for writ of prohibition seeking review of an order denying a motion
for disqualification pursuant to section 120.655 is reviewed de novo. Charlotte Cnty.
v. IMC-Phosphates Co., 824 So. 2d 298, 299-300 n.1 (Fla. 1st DCA 2002). If the
motion for disqualification alleges sufficient facts to cause a reasonably prudent
person to fear that they would not obtain a fair and impartial hearing, the motion
should be granted. Id. at 300. While FCCA is the named party in the rate-reduction
application, its member cruise lines, including Burke’s and Miguez’s employers, are
the de facto parties. Biscayne Bay Pilots I, 160 So. 3d at 560 n2. (explaining that
“section 310.151(2), Florida Statutes, only allows groups whose ‘substantial
interests are directly affected by the rates set by the committee’ to apply for a rate
change”). Thus, BBP’s motion for disqualification should have been granted
because “a reasonably prudent person would fear that he or she would not obtain a
fair and impartial proceeding before Committee members who are senior executives
of the de facto parties that initiated the proceeding and whose rate change application
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is awaiting the Commissioners’ decision.” Port Everglades Pilot Ass’n v. Fla.-
Caribbean Cruise Ass’n, 170 So. 3d 952, 956-57 (Fla. 1st DCA 2015).
We, therefore, GRANT the petition for prohibition, QUASH the orders of
Commissioners Burke and Miguez denying the motion for disqualification, and
remand with directions that the motion be granted.
THOMAS and ROWE, JJ., CONCUR; LEWIS, J., CONCURS WITH OPINION.
.
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LEWIS, J., concurring.
I fully concur with granting the petition for writ of prohibition and write only
to note that this case is controlled by our decision in Port Everglades Pilots
Association v. Florida-Caribbean Cruise Association, 170 So. 3d 952 (Fla. 1st DCA
2015). There, FCCA filed an application for a reduction in pilotage rates charged to
passenger vessels calling on Port Everglades. Id. at 954. Pursuant to section
120.665, Florida Statutes, Port Everglades Pilots Association (“PEPA”) filed a
motion to disqualify Commissioners Burke and Miguez from serving on the
Committee in the proceedings on FCCA’s application because they were senior
executives of two of the largest member cruise lines of FCCA. Id. The Committee
and Commissioners Burke and Miguez entered written orders denying the motion
for disqualification. Id. at 955. In ruling on PEPA’s petition for writ of prohibition
seeking review of the Commissioners’ orders, we explained that the basis for the
motion to disqualify was the Commissioners’ employment by the FCCA’s member
cruise lines who were the de facto parties to the proceeding and held that the motion
was legally sufficient and should have been granted because “a reasonably prudent
person would fear that he or she would not obtain a fair and impartial proceeding
before Committee members who are senior executives of the de facto parties that
initiated the proceeding and whose rate change application is awaiting the
Commissioners’ decision.” Id. at 956-57. The same is true in the case now before
us, requiring the granting of BBP’s petition.
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