CORTIÑAS, J.
In 2008, the Florida Legislature amended section 626.854 of the Florida Statutes to include new regulations on public adjusters doing business in Florida. Among these regulations were section 626.854(6), limiting the timing of a public adjuster's initial contact with a potential client, and section 626.854(11)(b)(2), capping the maximum fee that may be charged by a public adjuster. Appellees, East Coast Public Adjusters, Inc. ("East Coast"), Premier Public Adjusting, Inc. ("Premier"), and Ameriloss Public Adjusting Corp. ("Ameriloss") (collectively the "Adjusters") filed suit in Miami-Dade County challenging the facial and as-applied constitutionality of these two sections and seeking injunctive relief from their enforcement. Appellants, Alex Sink in her capacity as Chief Financial Officer of the State of Florida, the Florida Department of Financial Services (the "Department"), and the State of Florida, filed a motion to dismiss the complaint, or in the alternative, to transfer venue to Leon County. This appeal followed the denial of the appellants' motion.
In civil actions "against the state or one of its agencies, the Florida common law home venue privilege provides that venue is proper in the county where the agency maintains its principal headquarters." Barr v. Fla. Bd. of Regents, 644 So.2d 333, 335 (Fla. 1st DCA 1994) (citations omitted); Fish Wildlife Conservation Comm'n v. Wilkinson, 799 So.2d 258, 260 (Fla. 2d DCA 2001) ("It is well established within the common law that venue in an action against a governmental agency lies in the county where the agency maintains its principal headquarters."); Dep't of Highway Safety Motor Vehicles v. Sarnoff, 734 So.2d 1054, 1056 (Fla. 1st DCA 1998). The home venue privilege, however, is not without exception. Ban: 644 So.2d at 335. The exception argued by the Adjusters, known as the "sword-wielder" doctrine, applies when a "plaintiff seeks judicial protection from a real or imminent danger of invasion of the plaintiffs constitutional rights by the state agency." Id. (citations omitted). In determining whether the sword-wielder doctrine is applicable, "[t]he test is whether the state is the original sword-wielder, and the plaintiffs suit a shield against the state's thrust. If so, a suit may be maintained in the county where the blow has been or is about to be struck." Nyberg v. Snover, 604 So.2d 894, 895 (Fla. 1st DCA 1992) (citing Fla. Pub. Serv. Comm'n v. Triple "A", 387 So.2d 940, 942 (Fla. 1980)). Furthermore, "the sword-wielder exception is applicable only where the official action unlawfully infringes on the plaintiffs constitutional rights." Brown v. State, 705 So.2d 1041, 1042 (Fla. 2d DCA 1998) (citing Carlile v. Game Fresh Water Fish Comm'n, 354 So.2d 362, 363-64 (Fla. 1977)).
The burden of proof and persuasion in establishing the application of either the home venue privilege or the sword-wielder exception shifts back and forth between the plaintiff and defendant. Wilkinson, 799 So.2d at 260.
When an agency wishes to challenge a plaintiffs venue selection, it must first raise the issue in a motion to dismiss or an answer. It has the burden to prove its right to the governmental home venue rule. Typically, the headquarters of the agency is established by law or is otherwise an admitted fact, and no additional evidence is required to prove the general application of the home venue privilege. The burden then shifts to the plaintiff to plead and prove facts establishing an exception to the general rule. If the plaintiff pleads these allegations and presents evidence to establish the sword-wielder exception, then the agency must respond with conflicting evidence or the plaintiff prevails on its venue selection. Finally, if the agency responds with conflicting evidence, then the burden of persuasion returns to the plaintiff, and the trial court must resolve the factual dispute.
Id. at 260-61 (citations omitted).
Aside from the general statement that "[a]ll of the actions giving rise to this cause of actions [sic] occurred in Miami-Dade County," the Adjusters' complaint is devoid of specific allegations tying the Department's investigations to the challenged statutory provisions. In opposition to the appellants' motion to dismiss, the Adjusters filed several affidavits and correspondence purportedly demonstrating the Department's activities warranting application of the sword-wielder doctrine. While the Adjusters apparently concede that the 48-hour wait period required under section 626.854(6) is not implicated by the Department's actions, they maintain that the investigatory activity identified in their affidavits and correspondence relates to the fee cap required by section 626.854(1 l)(b)(2).
The documents filed by the Adjusters show that the Department sent correspondence to Ameriloss and Premier advising them that investigations had been opened concerning their insurance-related activities in Florida. We acknowledge that the mere act of sending a letter by an agency is insufficient to warrant application of the sword-wielder doctrine. See Fla. Pub. Serv. Comm'n, 387 So.2d at 942 (finding that a letter threatening to seek injunctive relief if certain conduct was not ceased was insufficient to invoke the sword-wielder doctrine). The Adjusters, however, also filed affidavits stating that Gene Cashier ("Cashier"), an agent of the Department, traveled to Miami-Dade County, visited and interviewed East Coast's clients, interviewed a contractor used by one of the clients, and advised the clients that East Coast was being investigated on suspicion of fraudulent or excessive claims. In addition, the Adjusters produced the affidavit of Premier's president attesting that a special investPl.'s Mot. for Summ. J. at 6-10.
Plaintiff fails to create a triable issue on her discrimination and retaliation claims, let alone to show that she is entitled to judgment as a matter of law. Her attacks on the CPUC's selection process do not demonstrate that she was discriminated against on the basis of race or faced retaliation because of this lawsuit.
She asserts that summary judgment in her favor is proper because the CPUC fails to substantiate the statutory basis for its selection process. As stated above, the legal basis for the CPUC's personnel procedures is not relevant to whether Plaintiff was discriminated against on the basis of race. Moreover, because she has the burden to prove her claims at trial, she must offer evidence that, if undisputed, entitles her to prevail on her claims; unless such a showing is made, the CPUC has no burden of production. Plaintiff offers no evidence — let alone uncontroverted evidence — that the CPUC has implemented an unlawful promotion process that it uses to discriminate on the basis of race.
Plaintiff also argues that the fact that she was not selected for one of the four positions in the Energy Division warrants a conclusion that she suffered race discrimination. However, as explained above, the CPUC asserts that she did not attain the highest SOQ score for those positions, which precludes judgment in her favor.
Accordingly, the Court denies Plaintiff's motion for summary judgment.
CONCLUSION
For the foregoing reasons, the Court GRANTS the CPUC's Motion for Summary Judgment (Docket No. 284) and DENIES Plaintiff's motion for a continuance pursuant to Rule 56(f) (Docket No. 348) and motion for summary judgment (Docket No. 358). All remaining dates are VACATED.
The Clerk shall enter judgment in favor of the CPUC, Arocles Aguilar, Dana Appling, Robert J. Wullenjohn, the SPB, Gregory W. Brown and Floyd D. Shimomura. Defendants shall recover costs from Plaintiff. The Clerk shall also close the file.
IT IS SO ORDERED.