- Court
- Florida First District Court of Appeal
- Case Number
- 1D2023-0714
- Date Filed
- May 27, 2026
- Judge
- Nordby, J.
- Disposition
- Final order set aside; remanded for further proceedings
Background
Blue Seven, LLC, operating as Indigo Float, sought to open a float tank therapy business in which customers float in private tanks containing a concentrated solution of magnesium sulfate (approximately 1200 pounds of dissolved Epsom salt) heated to 96 degrees Fahrenheit. Because the Department of Health considers float tanks to be “special purpose pools,” the business needed operating permits from the Department.
The Department denied Indigo Float’s permit application. After an administrative hearing, an administrative law judge (ALJ) at the Division of Administrative Hearings (DOAH) found that the Department had relied on an unadopted rule — a three-page document titled the “2020 Float Tank Code” available on the Department’s website — in denying the application. The ALJ recommended the Department rescind its denial. However, the Department rejected the ALJ’s recommendation, concluding it did not rely solely on the unadopted rule and that the applicant failed to comply with portions of the Florida Statutes and Florida Administrative Code.
Holding
The First DCA set aside the Department’s final order and remanded for further proceedings. The court found that the 2020 Float Tank Code constituted an unadopted rule because it established specific compliance requirements that float tank operators had to meet — including mitigation measures and provisos — that went beyond what was contained in properly adopted rules. The Department’s 2021 letter partly approving Indigo Float’s variance imposed many of the same requirements found in the Float Tank Code, demonstrating reliance on the unadopted rule.
The court also found that the Department failed to adequately state with particularity its reasons for rejecting the ALJ’s findings of fact, as required by section 120.57(1)(l), Florida Statutes. When an agency rejects an ALJ’s factual findings, it must do more than simply assert a different conclusion — it must explain why the competent substantial evidence supports the agency’s findings rather than the ALJ’s.
Key Takeaways
- Agency guidance documents that impose specific compliance requirements beyond properly adopted rules may constitute unadopted rules subject to challenge under section 120.57(1)(e)1., Florida Statutes.
- An agency cannot rely on an unadopted rule as the basis for denying a permit application.
- When rejecting an ALJ’s recommended findings of fact, an agency must state with particularity its reasons for doing so, supported by competent substantial evidence in the record.
- The Department of Health regulates float tanks as “special purpose pools” under its public swimming pool permitting authority.
- Float tank businesses seeking permits must navigate both the standard pool permitting process and any applicable variance requirements.
Why It Matters
This decision has significant implications for Florida’s emerging float therapy industry and, more broadly, for any business subject to agency permitting where the agency has created informal guidance documents that function as de facto rules. The court’s finding that the Department’s “2020 Float Tank Code” constituted an unadopted rule means the Department cannot enforce those requirements unless it undertakes formal rulemaking. For float tank entrepreneurs throughout Florida, this removes a significant regulatory barrier. The decision also reinforces the limits on agency discretion to reject ALJ findings, a recurring theme in Florida administrative law that protects regulated parties from arbitrary agency action.