FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION

v.

GULF COUNTY, FLORIDA BOARD OF COMMISSIONERS, ON BEHALF OF GULF COUNTY, FLORIDA, A POLITICAL

PER CURIAM.

The case giving rise to this appeal challenges a rule by which the Florida Fish and Wildlife Conservation Commission (“the Commission”) restricted oyster harvesting in the Apalachicola Bay. The Commission appeals an order denying its motion to transfer venue from Gulf County after it asserted its Leon County home venue privilege. Because the Commission is entitled to the home venue privilege, and Appellees did not prove entitlement to the sword-wielder exception to that privilege, we vacate the order denying transfer to Leon County.

The trial court erroneously concluded that the home venue privilege did not apply because the Commission was not an “agency” for purposes of chapter 120. The 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 privilege in fact is not based on or in chapter 120 at all and is not dependent upon it or any section of it.¹ The privilege instead dates at least as far back as the 1930s and 1940s. See Fla. Dep’t of Child. & Fams. v. Sun-Sentinel, Inc., 865 So. 2d 1278, 1287 (Fla. 2004) (“Florida’s home venue privilege dates back to Smith v. Williams, [] 35 So. 2d 844 ([Fla.] 1948).”); State ex rel. Ayala v. Knott, 3 So. 2d 522, 523 (Fla. 1941) (holding that the Leon County circuit court was the proper forum in which to present a challenge to the official acts of the state treasurer, which necessarily were performed in the capital county); Game & Fresh Water Fish Comm’n v. Williams, 28 So. 2d 431, 434 (Fla. 1946) (“It is in Tallahassee that the rules are made and, therefore, it must follow that it must be in the Circuit Court of Leon County (if permissible at all) where those rules and resolutions may be attacked.”).

The Commission certainly qualifies for this privilege afforded governmental entities. See Williams, 28 So. 2d at 434 (applying home venue privilege to Game & Fresh Water Fish Commission after explaining “the Game and Fresh Water Fish Commission of the State of Florida is a constitutional state instrumentality and administrative board”).

It is a “commission” created by the Florida Constitution, vested with the “the regulatory and executive powers of the state with respect to marine life, except that all license fees for taking wild animal life, fresh water aquatic life, and marine life.” Art. IV, § 9, Fla. Const. Under the privilege, “venue in civil actions brought against the state or one of its agencies or

Along these lines, the Legislature has the power to designate the proper venue for suits “involving primarily the interpretation of rules or regulations of a state agency” by “fixing of the residence of such governmental agency for the purpose of suit.” Smith, 35 So. 2d at 848 (“When the legislature has thus acted the venue for suits of such nature will be in the county directed by such legislative designation; the action of the legislature in this respect amounting to a legislative fixing of the residence of such governmental agency for the purpose of suit.”).

When such a suit instead is filed “in a jurisdiction other than that designated by the legislature the state agency affected has full means for requiring such suit to be brought in the county of its headquarters by filing timely objections in the pending cause and claiming the privilege of being sued in the forum designated by the legislature.” Id. The agency instead “may waive such privilege by contesting the merits, thereby submitting itself to the jurisdiction of the court in which the suit has been instituted.” Id. The Legislature indeed has fixed the headquarters of the Commission in the state capital in Tallahassee. See § 379.10255, Fla. Stat.; see also § 20.331(3)(a), Fla. Stat. (making Tallahassee the headquarters and official residence of the Commission’s executive director).

The Commission, of course, did not waive the privilege, so unless an exception applies, venue for the suit against it in this case lies in Leon County. In this respect, the trial court also erred in its alternative determination that the so-called sword-wielder exception applies. The exception applies only 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.” Sun-Sentinel, Inc., 865 So. 2d at 1288 (quoting Fla. Pub. Serv. Comm’n v. Triple “A” Enters., Inc., 387 So. 2d 940, 942 (Fla. 1980)); see also Smith, 35 So. 2d at 846–47 (creating sword-wielder exception and defining parameters).

Contrariwise, this 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].” Sun-Sentinel, Inc., 865 So. 2d at 1287 (quoting Smith, 35 So. 2d at 846–47).

Appellees simply failed to prove that the sword-wielder exception applies.

First, the only official act at issue here is the Commission’s adoption of the rule itself. The Commission has not charged any of the Appellees with a rule violation, and it has not fined or otherwise sanctioned any of them. There is no pending case alleging a rule violation, and the Commission has not pursued enforcement or penalties. Cf. Smith, 35 So. 2d at 844–48 (applying sword-wielder exception where commission “advised the plaintiffs that if they do not conform to the resolution and rules so promulgated by the Commission they will be arrested and prosecuted and their licenses canceled for such violation”). Without any such action by the Commission directed at Appellees in Gulf County, there is no need for the judicial protection of that venue.

Second, Appellees’ three-count complaint seeks a declaratory judgment of competing rights and obligations. Appellees broadly claim the rule should be declared unconstitutional and invalid because it was adopted without due process and was arbitrary and capricious. This type of action is not one seeking a shield against any specific administrative sword; rather, it seeks a preemptive declaration of general invalidity. Appellees’ claim that the rule infringes on their rights to govern themselves and acquire and possess property does not transform their action into anything other than one seeking an interpretation of the rule and declaratory relief prior to any enforcement against Appellees or any suffering of actual harm. Appellees’ narrowed focus on Indian Lagoon and the portion of Apalachicola Bay in Gulf County does not alter the primary purpose of the action.

Finally, Appellees’ use of the words “injunction” and “enjoin” (once in the title and once in the request for relief) does not change the fundamental nature of their complaint. As a whole, the primary purpose of their litigation is still to obtain a judicial interpretation and declaration of their rights under the Commission’s oyster harvesting rule. Cf. § 86.011, Fla. Stat. (empowering trial courts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed” and giving the declaration “the force and effect of a final judgment”); § 86.061, Fla. Stat. (authorizing “[f]urther relief based on a declaratory judgment,” which must be requested by motion after an adjudication of the parties’ rights (emphasis supplied)).

Accordingly, the Commission was entitled to the home venue privilege, and the trial court erred in denying the Commission’s request to transfer venue to Leon County.²

ROWE, KELSEY, and TANENBAUM, JJ., concur. _____________________________