         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-5200
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GLOBAL HOOKAH DISTRIBUTORS,
INC.,

    Appellant,

    v.

DEPARTMENT OF BUSINESS AND
PROFESSIONAL REGULATION,
DIVISION OF ALCOHOLIC
BEVERAGES AND TOBACCO,

    Appellee.
                 _____________________________

On appeal from a Final Order of the State of Florida, Division of
Administrative Hearings.
R. Bruce McKibben, Administrative Law Judge.

                           May 3, 2018


PER CURIAM.

     Global Hookah Distributors, Inc., appeals from a final order
of the Florida Department of Business and Professional
Regulation, which adopted an administrative law judge’s
recommended order addressing wholesale tax assessments on
what are called “other tobacco products,” or “OTP.” The order
denied relief on Global Hookah’s challenge to the Department’s
policy statement concerning the use of a “best available
information” process as applied to OTP, which is not challenged
on appeal. Global Hookah, however, challenges its alternative
claim, which is that the Department’s inclusion of federal excise
taxes, shipping costs, and other related items was an
unpromulgated rule for which they are entitled to relief. The
administrative law judge refused to consider this claim,
effectively ruling against Global Hookah, despite the fact the
claim had been successful in a parallel case before the same
administrative law judge. See Fla. Dep’t of Bus. & Prof'l Reg. v.
Fla. Bee Distribution, Inc., 205 So. 3d 593 (Fla. 1st DCA 2016)
(per curiam affirmance in favor of Florida Bee).

     Global Hookah claims it has the right to assert a Florida Bee
theory as well; it says that the refusal to hear its claim—because
a stay had been entered in Florida Bee pending appeal—was
improper. Under the circumstances presented, we agree that
Global Hookah should have been allowed to have its similar claim
adjudicated on the merits. The refusal to adjudicate Global
Hookah’s claim amounts to a denial of due process because it
precludes Global Hookah from potentially prevailing on a valid
theory of liability upon which a similarly-situated litigant
(Florida Bee) prevailed. To the extent that Global Hookah can
show injury arising from the application of an agency policy to its
operations, enforced via an invalid agency rule, it should be
entitled to do so. We therefore reverse and remand with
directions that Global Hookah’s claim based on that in Florida
Bee be reinstated.

    REVERSED and REMANDED.

LEWIS, MAKAR, and OSTERHAUS, JJ., concur.

                 _____________________________

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

Gerald J. Donnini, II, Jospeh C. Moffa, and James F. McAuley of
Moffa, Sutton, & Donnini, P.A., Fort Lauderdale, for Appellant.



                                2
Pamela Jo Bondi, Attorney General, and Elizabeth Teegen,
Assistant Attorney General, Tallahassee, for Appellee.




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