Blue Seven, LLC d/b/a Indigo Float v. Department of Health

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2023-0714
_____________________________
B LUE SEVEN , LLC d/b/a I NDIGO
FLOAT ,
Appellant,
v.
FLORIDA DEPARTMENT OF
H EALTH,
Appellee.
_____________________________
On appeal from the Florida Department of Health.
Joseph A. Ladapo, Secretary.
May 27, 2026
N ORDBY, J.
Appellant Blue Seven, LLC, d/b/a Indigo Float, wants to open
a float tank therapy business. To do so, it needs a permit. The
Department 	of 	Health, 	however, 	denied 	Appellant’s 	permit
application 	(notwithstanding 	an 	administrative 	law 	judge’s
recommendation that the Department rescind its denial of that
application). As explained below, we set aside the Department’s
final order and remand for further proceedings.

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I.
Matthew and Jacqueline Stewart own Appellant Indigo Float,
a float tank business where customers make appointments to use
a “flotation therapy device.” These float tanks (also called float
pods or float spas) are known under the corporate-designated
name of “floatSpa.” When a customer enters a private float tank
room for a session, the eighteen-inch-deep tank fills with eleven to
twelve inches of a concentrated solution of magnesium sulfate
(around 1200 pounds of dissolved Epsom salt). The solution is
heated to 96 degrees Fahrenheit. The float tank has a double-
hinged lid which the customer can close or leave open. During the
treatment, the customer “float[s] completely weightlessly” in the
tank and “lose[s] track of where the solution ends and . . . where
[their] skin begins.” Between each session, the solution is drained
and filtered.
Because the Department considers float tanks to be public
swimming pools that fall under the category “special purpose
pools,” 	Appellant 	sought 	a permit 	from the 	Department. The
Department, however, rejected Appellant’s application. The case
proceeded to a formal hearing before an administrative law judge
(ALJ) at the Division of Administrative Hearings (DOAH). Based
on his findings of facts, the ALJ found that the Department relied
on 	an 	unadopted 	rule 	in 	denying 	Appellant’s 	swimming 	pool
permit application. The ALJ recommended that the Department
rescind its denial of the application. The Department rejected the
ALJ’s recommendation, concluding instead that it did not rely
solely on an unadopted rule in denying Appellant’s application.
The Department found that Appellant also failed to comply with
portions of the Florida Statutes and the Florida Administrative
Code, which provided a sufficient basis to deny the operating
permits. Appellant now challenges the Department’s final order.
A.
The Department oversees the licensing and regulation of
public swimming pools. A person or public body seeking to operate
a 	public 	swimming 	pool 	must 	apply 	for 	a 	permit 	from 	the
Department. See § 514.031(1), Fla. Stat. (2022). The applicant
must submit certain information with the application and provide

3
all required materials to the local county health department,
which 	then 	forwards 	the 	documents 	to 	the 	Department’s
Tallahassee program office for review. See § 514.031(1)(a), Fla.
Stat. The Department’s pool team, which consists of inspectors and
engineers, 	reviews 	the 	drawings 	and 	applications 	to 	ensure
compliance. During this same time, the county health department
drafts and provides a letter to the appropriate building officials
where the pool is located. The letter informs those building officials
that the applicant has started the permitting process, which allows
the building officials to issue the applicant a construction permit.
Once construction of the pool is completed, the applicant can
submit a request for inspection to the county health department.
In 	this 	case, 	William 	Nowlin 	of 	the 	Duval 	County 	Health
Department inspected Appellant’s float tanks. The purpose of the
inspection 	is 	to 	ensure 	compliance 	with 	the 	plans 	that 	the
applicant submitted (and the Department approved) and to ensure
that the equipment installed functions properly and matches the
equipment previously approved. If the inspection reveals that the
public pool is in compliance, then the Department issues an initial
operating permit and an annual operating permit.
If 	the 	public 	swimming 	pool 	fails 	to 	meet 	the 	statutory
requirements, 	the 	Department 	has 	the 	authority 	to 	grant
variances. 	§ 514.0115(9), 	Fla. 	Stat.; 	Fla. 	Admin. 	Code 	R.
64E-9.016. At the Department, Robert Vincent’s office oversees the
variance process for public swimming pools, including reviewing
all variance applications and placing them on the agenda for the
Public 	Swimming 	Pool 	Advisory 	Board. 	The 	Advisory 	Board
reviews all variance applications.
B.
After 	a 	preliminary 	attempt 	to 	obtain 	permits 	failed,
Appellant again applied for permits to operate its float tanks. It
also sought a variance. The Advisory Board voted unanimously to
deny the variance application. Yet the Department did not accept
the Advisory Board’s recommendation. It approved the variance in
part and denied it in part subject to the completion of specific
conditions or “provisos.” After conducting an initial construction
inspection, 	the 	Department 	identified 	multiple 	issues 	that

4
Appellant needed to address before the company could be issued a
permit.
Ultimately, the Department denied Appellant’s application
for 	public 	pool 	operating 	permits. 	Appellant 	then 	sought 	an
administrative hearing, and the case was ultimately referred to
DOAH.
C.
Amongst Appellant’s claims at DOAH was an unadopted rule
challenge. 	Appellant 	argued 	the 	Department’s 	denial 	of 	its
application was based on an unadopted rule in violation of section
120.57(1)(e)1., Florida Statutes. This claim centered on a three-
page document, titled, “2020 Float Tank Code,” available on the
Department’s 	website 	during 	Appellant’s 	permit 	application
proceedings. The 2020 Float Tank Code was the third revision of
this document; the Department had created and subsequently
revised 	versions 	of 	this 	document 	in 	2018 	and 	2019, 	under
different labels.
The opening paragraph of the Float Tank Code stated:
To acquire an operating permit from the Department of
Health, a special purpose pool owner shall acquire a
variance 	from 	the 	Department 	or 	utilize 	one 	of 	the
manufacturer’s 	variances, 	and 	comply 	with 	the
applicable 	provisos 	listed 	after 	the 	state 	codes 	cited
below. The operation and design construction of Epsom
Salt Float Rooms and Tanks are often in violation of
certain 	requirements 	of 	Florida 	Administrative 	Code
(FAC) Chapter 64E-9, and the Florida Building Code
(FBC) Chapter 4, section 454.1 that generally apply to
conventional pools as follows.
2020 Float Tank Code (emphasis added).
The Float Tank Code also listed numerous provisions of the
Florida Building Code, as well as rule 64E-9.004(5), as governing
provisions that float pods often violate. It then listed several
mitigation measures that owners must take to receive approval for

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a 	permit. 	The 	Department’s 	2021 	letter 	partly 	approving
Appellant’s variance imposed many of the same requirements that
were listed in the 2020 Float Tank Code.
Following a formal hearing, the ALJ made various factual
findings and conclusions of law. The ALJ found that, “based on the
persuasive testimony and evidence presented, and a reading of the
Florida Building Code, . . . float tanks do not fall within the
definition 	of 	a 	special 	purpose 	pool.” 	Thus, 	“[b]y 	improperly
classifying float pods as special purpose pools, [and] creating a
Float Tank Code with mandatory language that it applies to
commercial float tank owners,” through its permitting framework
and variance process, the Department was requiring applicants to
try to fit a “square peg” within a “round hole.”
The ALJ found “obvious and substantial overlap between the
[Department’s 2021] variance letter, and the Float Tank Code.” He
also found that “[t]he preponderance of the evidence established
that the Department relied on portions of the Float Tank Code (i.e.,
variances and provisos) in considering and denying [Appellant]’s
permit application.” The ALJ further found:
The preponderance of the evidence established that the
Float Tank Code meets the definition of a rule because it
is a statement of general applicability that implements,
interprets, or prescribes law or policy. The competent,
substantial 	evidence 	presented 	at 	the 	final 	hearing
established that the Department created the Float Tank
Code, 	and, 	as 	found 	in 	paragraph 	44 	above, 	the
Department relied on portions of it in considering and
denying 	[Appellant]’s 	permit 	application. 	Yet, 	the
Department has not promulgated the Float Tank Code as
a rule.
This 	finding 	referenced 	paragraph 	44 	of 	the 	ALJ’s
recommended order. Paragraph 44 discussed the Department’s
April 	6, 	2021, 	letter 	and 	how 	it 	imposed 	many 	of 	the 	same
requirements as the 2020 Float Tank Code. The ALJ concluded:
The competent, substantial evidence presented at the
final 	hearing 	established 	that 	the 	Department 	has

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prepared, and relied, on versions of a Float Tank Code
document in 2018, 2019, and 2020—none of which the
Department 	promulgated 	through 	the 	rulemaking
process—and has decided to regulate the permitting of
float tanks through variances and provisos, as listed in
those Float Tank Code documents.
Having concluded that the Department had improperly relied
on an unadopted rule in denying Appellant’s permit application,
the 	ALJ 	expressly 	declined 	to 	“address 	other 	elements 	of
[Appellant]’s entitlement to the permit.” Ultimately, based on his
conclusions concerning the unadopted rule, the ALJ recommended
that the Department rescind its denial of Appellant’s swimming
pool operating permit application.
Both 	parties 	filed 	exceptions 	to 	the 	recommended 	order.
Appellant requested one exception, directed to the ALJ’s factual
finding in a footnote that “float tanks appear to fall under the
statutory 	definition 	of 	a 	public 	swimming 	pool 	in 	Florida.”
Appellant claimed that this finding was dicta and pointed to the
ALJ’s 	identification 	of 	“credible 	testimony” 	that 	supported 	a
finding that “float tanks are not public swimming pools.” Appellant
further argued that because “the ALJ rejected the Department’s
argument and found that float tanks are not special purpose
pools,” the other dictum was perhaps a “typographical error.”
The Department filed two exceptions. First, the Department
moved for the agency to modify paragraph 78 of the recommended
order and substitute the following conclusion:
Although [Appellant] established that the Department
relied on an unadopted rule, the basis for denying the
operating 	permits 	was 	not 	limited 	to 	the 	variance
provisos referenced in the Float Tank Code. [Appellant]
failed to comply with the requirements of chapter 514,
Florida 	Statutes, 	and 	chapter 	64E-9, 	Florida
Administrative Code, as evidenced by the April 8, 2022
inspection, the December 21, 2021 denial letter, and the
record. [Appellant]’s failure to pass the inspection, which
among 	other 	items, 	specifically 	required 	the 	anti-
entrapment 	device 	mandated 	by 	section 	514.0315,

7
Florida Statutes, forms a sufficient basis to deny the
operating permits, notwithstanding the Float Tank Code.
The Department argued that this conclusion was as or more
reasonable than the ALJ’s finding. The Department asserted that
the agency “has substantive jurisdiction to interpret chapter 514,
Florida Statues, as well as chapter 64E-9, Florida Administrative
Code.” The Department claimed that several of the ALJ’s factual
findings 	and 	conclusions 	of 	law 	“recognize[d] 	that 	the
Department’s denial of [Appellant]’s swimming pool applications
was not based solely on what the ALJ found to be an unadopted
rule.”
Second, the Department took exception to the ALJ’s ultimate
recommendation that the agency rescind its denial of Appellant’s
permit application. The Department moved for the agency to
rescind its denial to the extent that the agency relied on an
unadopted rule. But the Department urged the agency to affirm
the 	denial 	based 	on 	Appellant’s 	failure 	to 	comply 	with 	the
requirements 	of 	Chapter 	514, 	Florida 	Statutes, 	and 	Chapter
64E-9, Florida Administrative Code.
In its final order, the Department adopted its own exceptions
and rejected Appellant’s requested exception. The Department
adopted the ALJ’s factual findings but concluded that the denial of
Appellant’s permit was based on more than just the unadopted
rule. The Department therefore affirmed its denial of Appellant’s
public swimming pool operating permit.
II.
Appellant challenges the Department’s final order on the
grounds it was not supported by competent, substantial evidence
and that the fairness of the proceedings may have been impaired
by a material error in procedure. See § 120.68(7)(b)–(c), Fla. Stat.
Appellant argues the Department improperly rejected the ALJ’s
factual findings and conclusions of law and created its own factual
findings and legal conclusions as to the alternate grounds for the
permit denial based on Chapter 514 of the Florida Statutes and
Chapter 64E-9 of the Florida Administrative Code.

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A.
This 	Court 	reviews 	final 	agency 	action 	based 	on 	the
framework established by section 120.68, Florida Statutes. We
must affirm the agency’s action unless we find “a ground for setting
aside, 	modifying, 	remanding, 	or 	ordering 	agency 	action 	or
ancillary relief.” § 120.68(8), Fla. Stat.; see also § 120.68(7), Fla.
Stat. (establishing the grounds for relief from agency action).
Generally, this Court reviews an agency’s findings of facts for
competent, substantial evidence while reviewing legal conclusions
de novo. Robinson v. Comm’n on Ethics, 242 So. 3d 467, 470–71
(Fla. 1st DCA 2018). Further, “[a]n administrative agency abuses
its 	discretion 	when 	it 	disregards 	an 	ALJ’s 	factual 	findings
supported by competent, substantial evidence.” Chappell Schs.,
LLC v. Dep’t of Child. & Fams., 332 So. 3d 1060, 1063 (Fla. 1st
DCA 2021) (citing Strickland v. Fla. A&M Univ., 799 So. 2d 276,
278 (Fla. 1st DCA 2001)). We afford no deference to the agency’s
interpretation of statutes. Art. V, § 21, Fla. Const.
Section 120.57(1)(e)1., Florida Statutes, establishes that “[a]n
agency or an administrative law judge may not base agency action
that 	determines 	the 	substantial 	interests 	of 	a 	party 	on 	an
unadopted rule or a rule that is an invalid exercise of delegated
legislative authority.” § 120.57(1)(e)1., Fla. Stat. When a party
challenges an agency’s action, he or she may claim that it was
based on an unadopted rule. § 120.57(1)(e)2., Fla. Stat. When there
are material facts in dispute, challenges to agency actions proceed
to a hearing before an ALJ. § 120.57(1)(a), Fla. Stat. The ALJ then
issues a recommended order with factual findings about whether
the agency based its action on an unadopted rule. § 120.57(1)(e)1.,
(k), Fla. Stat.
After the hearing, an agency may not reject or modify an ALJ’s
factual findings unless they are not 	supported by competent,
substantial evidence. Stinson v. Winn, 938 So. 2d 554, 555 (Fla. 1st
DCA 2006); see § 120.57(1)(l), Fla. Stat. (declaring that an agency
may not reject or modify an ALJ’s findings of fact “unless the
agency first determines from a review of the entire record, and
states with particularity in the order, that the findings of fact were
not 	based 	upon 	competent 	substantial 	evidence 	or 	that 	the
proceedings on which the findings were based did not comply with

9
essential 	requirements 	of 	law”). 	When 	competent, 	substantial
evidence supports an ALJ’s factual findings, “the agency cannot
reject 	them 	even 	to 	make 	alternate 	findings 	that 	are 	also
supported by competent, substantial evidence.” Lantz v. Smith,
106 So. 3d 518, 521 (Fla. 1st DCA 2013) (quoting Resnick v. Flagler
Cnty. Sch. Bd., 46 So. 3d 1110, 1112–13 (Fla. 5th DCA 2010)).
Likewise, a reviewing agency may not reweigh evidence presented
at 	a 	hearing 	at 	DOAH, 	nor 	may 	it 	judge 	the 	credibility 	of
witnesses. Rogers v. Dep’t of Health, 920 So. 2d 27, 30 (Fla. 1st
DCA 2005) (citing Aldrete v. Dep’t of Health Bd. of Med., 879 So.
2d 1244, 1246 (Fla. 1st DCA 2004)); see also Stinson, 938 So. 2d at
555 (the ALJ “is entitled to rely on the testimony of a single witness
even if that testimony contradicts the testimony of a number of
other witnesses”).
An agency has more authority to reject an ALJ’s conclusions
of law. But still, under section 120.57(1)(l), an administrative
agency may only reject or modify an ALJ’s conclusions of law if it
has substantive jurisdiction over the subject of the conclusion and
if its substituted conclusion is as or more reasonable than the one
rejected. Barfield v. Dep’t of Health, 805 So. 2d 1008, 1011 (Fla. 1st
DCA 2001). “[T]he Legislature clearly intended to restrict agency
review of legal conclusions in a recommended order to those that
concern matters within the agency’s field of expertise.” G.E.L.
Corp. v. Dep’t of Env’t. Prot., 875 So. 2d 1257, 1264 (Fla. 5th DCA
2004).
Moreover, an agency cannot reject a hearing officer’s factual
findings by treating the issue as one of policy. Lawnwood Med. Ctr.
v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st
DCA 	1996) 	(citing 	Balsam 	v. 	Dep’t 	of 	HRS, 486 	So. 	2d 	1341
(Fla. 1st DCA 1986)). Rather, an agency may “apply its policy to
the facts which are supported by competent substantial evidence.”
Id.; see also Heifetz v. Dep’t. of Bus. Regul., Div. of Alcoholic
Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985)
(“Factual issues susceptible of ordinary methods of proof that are
not infused with policy considerations are the prerogative of the
hearing officer as the finder of fact.” (citing McDonald v. Dep’t. of
Banking & Fin., 346 So. 2d 569 (Fla. 1st DCA 1977))). “[T]he
obligation of the agency to honor the hearing officer’s findings of
fact cannot be avoided by categorizing [or labeling] a contrary

10
finding as a conclusion of law.” Viering v. Fla. Comm’n on Hum.
Rel. ex rel. Watson, 128 So. 3d 967, 969 (Fla. 1st DCA 2013)
(alteration in original) (parenthetically quoting Pillsbury v. Dep’t
of HRS, 744 So. 2d 1040, 1041 (Fla. 2d DCA 1999)).
B.
In our view, this case turns on whether the ALJ’s finding that
the 	Department 	relied 	on 	an 	unadopted 	rule 	in 	denying
Appellant’s 	permit 	application 	was 	a 	factual 	finding 	or 	a
conclusion of law. This can sometimes be a close call, especially
when conclusions of law and findings of fact are intertwined within
a recommended order. To make this determination, we look to the
substance of the decision in an administrative order. Sierra Club
v. Dep’t of Env’t Prot., 357 So. 3d 737, 741 (Fla. 1st DCA 2023)
(citing J.J. Taylor Co. v. Dep’t of Bus. & Pro. Regul., Div. of
Alcoholic Beverages & Tobacco, 724 So. 2d 192, 193 (Fla. 1st DCA
1999)). Where a paragraph “substantially addresses matters of
fact, then this Court treats it as a finding of fact, not a conclusion
of 	law.” 	Id. 	(citing 	Kanter 	Real 	Est. 	LLC 	v. 	Dep’t 	of 	Env’t
Prot., 267 So. 3d 483, 488–89 (Fla. 1st DCA 2019)).
The Department does not dispute that one of the ALJ’s factual
findings 	was 	that 	the 	agency 	considered 	and 	relied 	on 	the
unadopted 	Float 	Tank 	Code 	in 	denying 	Appellant’s 	permit
application. Instead, the Department disputes that the ALJ made
a factual finding that the agency relied only on the Float Tank
Code in denying Appellant’s permit application.
Considering the recommended order in its entirety, however,
leads us to conclude that the Department improperly rejected this
factual 	finding 	by 	recasting 	the 	facts 	to 	affirm 	its 	denial 	of
Appellant’s permit application. See Kanter, 267 So. 3d at 490
(citing Lawnwood Med. Ctr., 678 So. 2d at 425). In doing so, the
Department veered beyond the statutory guardrails of section
120.57. See § 120.57(1)(l), Fla. Stat. (“The agency may not reject or
modify the findings of fact unless the agency first determines from
a review of the entire record, and states with particularity in the
order, that the findings of fact were not based upon competent
substantial evidence or that the proceedings on which the findings
were based did not comply with essential requirements of law.”);

11
see also Kanter, 267 So. 3d at 491. One of the ALJ’s factual findings
was that “despite its admitted lack of rulemaking authority, the
Department has developed and applied the Float Tank Code as
statements of general applicability that implement and prescribe
law and policy regarding the regulation of float tanks.” This factual
finding led to the ALJ’s conclusion that the Department “relied” on
portions 	of 	the 	Float 	Tank 	Code 	in 	considering 	and 	denying
Appellant’s 	permit 	application. 	Based 	on 	his 	finding 	that
Appellant 	established 	“that 	the 	Department 	relied 	on 	an
unadopted rule in denying its permit applications,” the ALJ made
clear that he would not “address other elements of [Appellant]’s
entitlement to the permit.”
Rather than explain why the ALJ’s factual finding on this
point was not supported by competent substantial evidence, as
required 	under 	section 	120.57(1)(l), 	the 	Department 	instead
attempted to recast the fact in its favor, concluding that it also
relied 	on 	other 	statutory 	and 	regulatory 	authorities 	to 	deny
Appellant’s permit application. But the ALJ offered little to no
discussion of these other authorities. And the ALJ made no factual
findings or conclusions of law to resolve the disputed issues over
how 	those 	other 	authorities 	applied 	to 	Appellant’s 	permit
application. Yet despite those unresolved disputed issues, the
Department concluded in its final order that those unaddressed
other authorities provided a sufficient alternate basis to deny the
permits.
Because 	the 	Department 	improperly 	rejected 	the 	ALJ’s
factual finding that the Department relied on an unpromulgated
rule in denying Appellant’s permit application, we set aside the
final order and remand for further proceedings.
SET A SIDE and R EMANDED.
LEWIS and M.K. THOMAS, JJ., concur.

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_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
John E. Terrel, Law Office of John E. Terrel, Tallahassee, for
Appellant.
Sarah 	Young 	Hodges, 	Chief 	Appellate 	Counsel, 	Florida
Department of Health, Tallahassee, for Appellee.