IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DAVID S. KAHN,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
CASE NO. 1D03-5062
STATE OF FLORIDA, OFFICE OF
Opinion filed September 8, 2004.
An appeal from an order of the Department of Insurance.
D. Stephen Kahn, Tallahassee, for Appellant.
S. Marc Herskovitz, Division of Legal Services, Office of Insurance Regulation,
Tallahassee, for Appellee.
Appellant, David S. Kahn, appeals an order of the Office of Insurance
Regulation ("OIR") dismissing his petition for declaratory statement because OIR
does not have substantive jurisdiction and the petition seeks approval or disapproval
of conduct that already occurred.
Because the appellant’s petition essentially
challenges the correctness of OIR's approved rate increase to his single-life, small
group HMO plan, we agree with OIR that the petition for declaratory statement should
be dismissed. See B.J.L. v. Department of Health and Rehabilitative Services, 558 So.
2d 1078 (Fla. 1st DCA 1990)(ruling that a "petition for declaratory statement under
Section 120.565 is not the appropriate means to challenge agency decisions").
Therefore, we affirm, without prejudice to the appellant’s right to file a petition
pursuant to sections 120.569 and/or 120.57, Florida Statutes. 1
DAVIS, PADOVANO and POLSTON, JJ., CONCUR.
We do not comment on the legality of such a petition or any of the related