Patrick J. CARR, Appellant,
v.
OLD PORT COVE PROPERTY OWNERS ASSOCIATION, INC., Appellee.
No. 4D08-1449.
District Court of Appeal of Florida, Fourth District.
March 18, 2009.
Rehearing Denied April 17, 2009.
Patrick J. Carr, North Palm Beach, pro se.
Richard Valuntas and Tatiana B. Yaques of Katzman Garfinkel Rosenbaum, LLP, and Chris A. Draper of Becker & Poliakoff, P.A., West Palm Beach, for appellee Old Port Cove Property Owners Association, Inc.
Garnett Chisenhall, Tallahassee, for appellee Department of Business and Professional Regulation.
DAMOORGIAN, J.
We affirm the order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes (the "DBPR") denying Patrick J. Carr's petition for a declaratory statement.
Carr is a unit owner and member in the Harbor Village Condominium Association, one of seven condominium associations in the Old Port Cove community. Old Port Cove Property Owners Association (the "POA") is the master condominium association in the Old Port Cove community.
Carr petitioned the DBPR for a declaratory statement on the issue of whether the POA may engage in lobbying the Florida Legislature to amend the Florida Condominium Act, directly or indirectly through an organization of condominium associations, for a fee or at no cost. Through his petition, Carr sought interpretation of chapter 718, Florida Statutes (2006), which defines the statutory powers and duties of a condominium association. The POA intervened in the proceedings before the DBPR, arguing that the First Amendment to the United States Constitution, as applied to the states through the Due Process Clause, gives it the right to engage in lobbying activity. It also argued that its governing documents permit it to lobby the Florida Legislature.
The DBPR denied Carr's petition, stating that the petition sought interpretation of provisions of the POA's governing documents and interpretation of a constitutional provision as applied to the facts of the case, both of which are not approved functions of the DBPR. In addition, the DBPR denied the petition because it involved a disputed issue of material fact concerning the POA's membership in a lobbying organization.
Carr argues that the DBPR erred in denying his petition for a declaratory statement because the constitutional issue, contract interpretation issue, and factual dispute all arose from the POA's response to his petition. He asserts that the DBPR should merely answer the questions in his petition as they relate to chapter 718, Florida Statutes (2006), ignoring all of the issues raised by the POA.
Section 120.565, Florida Statutes (2006) governs the right to seek a declaratory statement under the Administrative Procedure Act, explaining that "[a]ny substantially affected person may seek a declaratory statement regarding an agency's opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner's particular set of circumstances." § 120.565(1), Fla. Stat. (2006). The DBPR's authority to issue declaratory statements is limited as follows:
A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules or orders over which the agency has authority. A petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner's particular circumstances. A declaratory statement is not the appropriate means for determining the conduct of another person.
Fla. Admin. Code R. 28-105.001 (2007). Thus, the purpose of a declaratory statement is to answer the petitioner's questions about how the statutes or rules apply to his own circumstances so that he may select a proper course of action. Fla. Admin. Practice § 2.41, at 2-48 (2004).
In addition to the abovementioned limitations, a declaratory statement may not be used to decide constitutional issues. Myers v. Hawkins,362 So.2d 926, 928 (Fla.1978) (noting that a declaratory statement is not the appropriate mechanism to interpret a constitutional provision); PPI, Inc. v. Fla. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering,917 So.2d 1020, 1022 (Fla. 1st DCA 2006) (stating that "section 120.565(1) does not authorize
an agency to construe a constitutional amendment").
The DBPR did not err in denying Carr's petition for a declaratory statement. The questions Carr raised in his petition implicate the issue of whether the POA has the right, under the First Amendment to the United States Constitution, to engage in lobbying, and the DBPR is not authorized to resolve this issue. See id. Moreover, if the DBPR were to ignore this constitutional issue, as Carr would have it do, it would not be able to provide Carr and the POA with a proper interpretation of chapter 718, Florida Statutes (2006). See generally Firestone v. News-Press Publ'n Co.,538 So.2d 457, 459 (Fla.1989) ("Whenever possible, a statute should be construed so as not to conflict with the constitution."). This would undermine the purpose of a declaratory statement — to aid the petitioner in selecting a course of action in accordance with the proper interpretation and application of the statute. See Fla. Admin. Practice § 2.41, at 2-48 (2004).
A declaratory statement by the DBPR is not the appropriate way to deal with the issues raised in Carr's petition. Accordingly, we affirm.
Affirmed.
GROSS, C.J., concurs.
FARMER, J., concurs specially with opinion.
FARMER, J., concurring specially.
I concur in affirming the Agency's refusal to issue a declaratory statement in this case. Petitioner himself has phrased the precise question he sought to have answered as: "The Petition asked ... whether Ch. 718 permitted the lobbying activities of Appellant's POA." He described this as a "simple question that DBPR was required to answer."
The real legal query petitioner presented to the Agency was whether under § 718.111(2) and § 718.115 a Property Owners Association may engage in lobbying the Legislature to amend the condominium law through an organization of condominium associations. But as phrased, his particular query turns out to be meaningless individually but of some import to classes of general interests.
In truth the issue he raises is really whether Chapter 718 expressly forbids such lobbying activities by POAs. Chapter 718 makes clear that it is not the only possible source of a POA's right or power to engage in such lobbying. So merely asking the Agency whether § 718.111(2) and § 718.115 permit such activity could not yield any application of Chapter 718 affecting this owner's actual situation.
Section 120.565 limits an Agency's declaratory statements to the agency's position on an issue raised by an individual petitioner in a particular set of facts, and bars an agency from using a declaratory statement to adopt broad agency policy or to provide statutory or rule interpretations that apply to an entire class of persons.
It is plain to me that an Agency answer to the query posed here could have resulted only in an answer having no direct effect on petitioner personally. Instead it would have amounted to mere hypothetical statutory and constitutional interpretation having no affect on him personally or the activity he challenges.
For that reason, I join in affirming the Agency's refusal to issue a declaratory statement.
Footnotes
1. See § 718.111(2), Fla. Stat. (2008) ("The powers ... of the association include those set forth in this section and, except as expressly limited or restricted in this chapter, those set forth in the declaration and bylaws and chapters 607 and 617, as applicable" [e.s.]); Raines v. Palm Beach Leisureville Community Ass'n Inc.,413 So.2d 30 (Fla. 1982) (condominium association derives its powers and duties from this chapter and from association's declaration of restrictions and bylaws).
2. Regal Kitchens Inc. v. Fla. Dep't of Revenue,641 So.2d 158, 161-62 (Fla. 1st DCA 1994). Petitioner makes no claim to recover a pro rata amount of POA fees spent in such activities.
