BAM TRADING SERVICES, INC., D/B/A BINANCE.US

v.

STATE OF FLORIDA, OFFICE OF FINANCIAL REGULATION

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-3371 _____________________________

BAM TRADING SERVICES, INC., d/b/a Binance.US,

Petitioner,

v.

STATE OF FLORIDA, OFFICE OF

FINANCIAL REGULATION,

Respondent. _____________________________

On Appeal from the Office of Financial Regulation. Russell C. Weigel, III, Commissioner.

May 22, 2024

B.L. THOMAS, J.

Petitioner seeks review of an Emergency Suspension Order (ESO) on the grounds that it is facially deficient under section 120.60(6), Florida Statutes, and should therefore be quashed. We agree. Facts Petitioner is a Florida-based digital assets company doing business as Binance.US, under a money-services business license supervised by the Office of Financial Regulation (OFR). Binance Holdings Limited (Binance Holdings) is an affiliate company of Petitioner doing business as Binance.com. Changpeng Zhao (Zhao) is the former CEO of Binance Holdings. Zhao has held an indirect

9.190(b)(2); 9.100(c)(3). Further, section 120.60(6)(c), Florida Statutes states that “[t]he agency’s findings of immediate danger, necessity, and procedural fairness are judicially reviewable.” Standard of Review We respectfully decline to apply the “scope of review” of nonfinal agency action as defined in State v. Murciano, 163 So. 3d 662, 664–65 (Fla. 1st DCA 2015), because that definition is not grounded in or authorized by section 120.68(7), Florida Statutes, which specifically defines our authority in such cases: The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that: . . . .

4 (c) The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure; (d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action[.] § 120.68(7), Fla. Stat. (emphasis added). We note that in Murciano, this Court stated that the “scope of review” of non-final agency action was “‘no broader than the right of review by common law certiorari.’” 163 So. 3d at 664 (quoting CNL Resort Hotel, L.P. v. City of Doral, 991 So. 2d 417, 420 (3d DCA 2008) (quoting Fla. Dept. of Financial Servs. v. Fugett, 946 So. 2d 80, 81 (Fla. 1st DCA 2006)). Respectfully, this is an incorrect statement of law, which has its origin in a prior decision of this Court in Charlotte County v. General Development Utilities, Inc., 653 So. 2d 1081 (Fla. 1st DCA 1995), where this Court relied on this proposition from a committee note: Our review of the PSC order here at issue is pursuant to section 120.68(1), Florida Statutes, which provides in part: (1) A party who is adversely affected by final agency action is entitled to judicial review . . . . A preliminary, procedural, or intermediate agency action or ruling, including any order of a hearing officer, is immediately reviewable if review of the final agency decision would not provide an adequate remedy. The Committee Notes to Florida Rule of Appellate Procedure 9.100(c),² explain that the statutory authority to review non-final administrative action is analogous to and no broader than the right of review by common law writ of certiorari. 653 So. 2d at 1084 (emphasis added).

7 (o) Having been convicted of, or entered a plea of guilty or nolo contendere to, any felony or crime punishable by imprisonment of 1 year or more under the law of any state or the United States which involves fraud, moral turpitude, or dishonest dealing, regardless of adjudication. Section 120.60(6) states: If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if: . . . . (c) The agency states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency’s findings of immediate danger, necessity, and procedural fairness are judicially reviewable. Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon. (emphasis added). Here, the ESO did not state the specific reasons for concluding that the procedures it used were fair under the circumstances. Rather, it relied on section 560.114(2) as authorizing OFR to suspend the license. However, the statute itself says the agency needs to provide reasons and only that the agency may suspend the license. See § 120.60(6), Fla. Stat. The usage of “may” in the statute implies discretion, rather than obligation. Additional reasoning beyond mere reference to the statute is necessary to suspend the license, given the property interest at stake here and potential harm discussed below.

SET ASIDE.

TANENBAUM, J., concurs; LEWIS, J., concurs in result only without opinion.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

M. Drew Parker, Radey Law Firm, Tallahassee, for Petitioner.

William H. Stafford III and Emily J. Witthoeft, Department of Legal Affairs, Tallahassee; and Brandon M. Greenberg and Melinda H. Butler, Office of Financial Regulation, Tallahassee, for Respondent.