The PRRC's docket misled the public by creating an appearance that the

The PRRC docket misled the public because it created an appearance that the 2014 applications, and their significantly different rate formulas, were being considered. This fundamentally impaired the fairness of the rate-review proceedings.

Under the APA, the PRRC must publish notice of public hearings that include

“a statement of the general subject matter to be considered” in the Florida Administrative Register. § 120.525(1), Fla. Stat. The PRRC rules dictate that the statement must “summarize[] the requested change in rates of pilotage and state the time, date and place of the public hearing.” Fla. Admin. Code R. 61G14-22.007(5).

This ensures that even where an interested person may have failed to review a previously filed application, it would be afforded notice of the specific rate change sought in that application, now set for public hearing. The APA also requires the PRRC to publish an agenda seven days in advance of any public hearing, which can be changed only for good cause. § 120.525(2), Fla. Stat. The agenda provides interested persons additional notice of the topics the PRRC will address.

The PRRC issued patently defective notices for the Public Hearing. The August 1, 2018 notice included a summary of the rates in the 2014 applications but failed to set forth the time, date or place for the hearing and port visit. (R 810). The August 22nd notice omitted a summary but stated the hearing date and time. (R 812)

Both were deficient. See § 120.525(1), Fla. Stat.; Fla. Admin. Code R. 61G14-22.007(5).

Even if the August 2018 notices were not patently defective, they informed the public only that the PRRC would consider the 2014 applications at the Public Hearing in late October. But by September 10, 2018, at the latest, FCCA and PEPA had asked the PRRC to consider the 2018 Unpublished Rates “in lieu of” the 2014 applications. (R 183) Impacted port operators like Crowley and King Ocean were never advised of the 2018 Unpublished Rates through a public notice in a manner that would have allowed them to exercise their fundamental rights to review the application(s) advocating for those rates²⁶ and file an alternative application. In truth, the 2014 applications had been abandoned and the August 1st notice no longer stated the general subject matter that the PRRC was to consider at the Public Hearing.

Because the PRRC never required complete revised applications, the application process did not begin anew as required by law. The PRRC never published a notice that included the 2018 Unpublished Rates in the “statement of the general subject matter to be considered” or in the “brief statement summarizing”

such rates, as the law requires. See § 120.525(1), Fla. Stat.; Fla. Admin. Code R.

61G14-22.007(5).

These omissions were critical. It denied Crowley and King Ocean (and other port operators) the opportunity to exercise their rights to timely file an alternative application. See § 310.151(3), Fla. Stat. It did so by hiding the true nature of the rate-review proceedings from interested cargo operators. “A court must set aside any agency action if a notice does not adequately identify the matters that the agency will consider.” Miami-Dade Cty. v. Fla. Power & Light Co., 208 So. 3d 111, 123 (Fla. 3d DCA 2016) (citation omitted).

The PRRC’s hearing Agenda, published seven days before the Public Hearing, further misled the public. (2d SR 2566–2568) The PRRC’s Agenda did not mention the 2018 Unpublished Rates. It stated that PEPA and FCCA would each make a “Presentation in Support of Its Application for Rate Change.” (2d SR 2567).

Reading the Agenda in concert with the August 2018 notices led to only one conclusion: the PRRC would consider the 2014 applications at the Public Hearing.

At the Public Hearing, the PRRC paid lip service to the 2014 applications but never actually considered those applications at all. (See, e.g., 10/24 Tr, 14:10–16;

10/25 Tr, 16:6–15). The PRRC did not consider whether the 2014-requested rates were fair, just, and reasonable and did not vote to grant or deny the 2014 applications. See § 310.151(3), Fla. Stat; Fla. Admin. Code. R. 61G14-22.001(6).

The PRRC ignored the Agenda and instead considered and approved the 2018 Unpublished Rates without making the requisite good-cause determination to

deviate from the Agenda.²⁷ Nor could it make such a determination. Good cause did not exist where the Agenda was published over a month after the PRRC received the 2018 Unpublished Rates and learned that FCCA and PEPA sought such rates in lieu of the rate requests set forth in the 2014 applications which had, since, been abandoned.

The PRRC’s efforts to keep interested port operators in the dark about the 2018 Unpublished Rates targeted “the right of affected persons to be given the opportunity for adequate and full notice of agency activities,” which this Court has described as “[c]entral to the fairness of administrative proceedings.” Amos v. Dep’t of Health & Rehab. Servs., Dist. IV, 444 So. 2d 43, 47 (Fla. 1st DCA 1983). Indeed,

the PRRC’s failure to comply with § 120.525’s notice requirements impaired the fairness of the rate-review proceedings. See § 120.68(7)(c), Fla. Stat.; Guerra v.

State, Dep’t of Labor & Employment Sec., 427 So. 2d 1098, 1103 (Fla. 3d DCA

1983).

In Guerra, an agency failed to include in its notice of hearing that certain testimony would be presented, as required by § 120.57(1)(b). 427 So. 2d at 1102.

The court determined that the notice requirement of § 120.57(1)(b) “embodies a determination of what is necessary to assure fair notice” which must be read with

27 The PRRC altered the Agenda to permit PEPA to makes its presentation before

the “concomitant provision of the same act,” § 120.68(7)(c). Id. at 1103 (citation footnote and emphasis omitted). Accordingly, “[t]he legislature has itself in effect said that the failure to give prior notice of [the] testimony . . . affected the ‘fairness’

of the hearing.” Id.

Here, the PRRC failed to adhere to the notice requirements § 120.525 which is also a “concomitant provision” of § 120.68(7)(c). Just as § 120.57(1)(b)

“embodies a determination of what is necessary to assure fair notice,” so too does § 120.525. Therefore, as in Guerra, the Legislature has already determined that failing to include the 2018 Unpublished Rates in a notice, publishing an inaccurate Agenda, and deviating from the Agenda without good cause, impaired the fairness of the rate-review proceedings. Therefore, the Court should remand the Final Order. § 120.68(7)(c), Fla. Stat.

3. At the Public Hearing, the PRRC relied on uninvestigated and