1993-03-30 Morell to DCA MICHAEL WM. MORELL
ATTORNEY AT LAW
310 WEST COLLEGE AVENUE
AL-,NISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 3E301-1406 ALSO ADMITTED IN THE
E NNONMENTAL AND LAND USE LAW DISTRICT OE COLUMBIA
(904) 425-8300
(904) 425-8301 FACSIMILE
March 30, 1993
VIA FACSIMILE TRANSMISSION 904/922-2679 and U.S. Mail
Karen Brodeen
Assistant General Counsel
Florida Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
Re: City of Okeechobee v. DCA, Respondent, and Okeechobee
County, Intervenor, DOAH Case No. 92-4909GM; Shirley
Pinder v. DCA and Okeechobee County, DOAH Case No. 92-
4910GM; and Florida Manufactured Housing Association,
Inc. , and Ted Kelchner v. DCA, Respondent, and Okeechobee
County, Intervenor, DOAH Case No. 92-4911GM.
Dear Karen:
I would like to thank you and Kelly Tucker for allowing me to
review a copy of the Administration Commission's draft Order
Vacating Final Order Closing File in ACC Case No. 93-101 which is
attached to this letter as Attachment #1 .
I suggest that the following sentence (which is the second to
last sentence in the draft order) be deleted as unnecessary: "DOAH
should forward this case to the Department of Community Affairs for
entry of a Final Order. "
It seems to me that once a petitioner in Section 163 . 3184 ( 9 )
proceedings voluntarily dismisses a case that he or she originated,
neither DOAH or DCA has jurisdiction of the case any longer. The
question of whether DOAH's order closing file needs to be sent to
DCA (which order is in the nature of an administrative directive
from the hearing officer to the DOAH Clerk rather than an order
relinquishing jurisdiction) , should be based on whether there is an
administrative need for DCA to have notice of the DOAH file closing
so that the Department may then close its own file.
This conclusion is supported by information I received in a
conversation I had with Agency Clerk Jane Bass yesterday. Jane
informed me that it is the practice of the DCA Clerk to only open
a file in cases brought under Section 163 . 3184 ( 9) , F.S . , after the
hearing officer has entered a recommended order recommending that
the plan or amendment be found "in compliance" and the Department
is required to enter a final order. This DCA file opening is in
essence the final order file number which the Department is
Karen Brodeen
March 30, 1993
Page Two
required to assign to all agency final orders for final order
indexing purposes . (Any DCA order of determination of non
compliance which DCA might submit to the Administration Commission
would not require a file number or final order number because it is
not a DCA order which constitutes final agency action. ) Therefore,
it follows that in cases brought under Section 163 . 3184 ( 9) where
voluntary dismissals have been taken which preclude the need for
the entry of either recommended or final orders , there is no need
for DOAH to forward its administrative order closing file to DCA.
Simply stated, there is no DCA file in existence at such time in
voluntarily dismissed cases that needs to be closed.
The only DCA file in existence at that time which needs to be
closed would be the file which belongs to the DCA attorney
representing the Department in the DOAH proceeding. This attorney
can close his or her litigation file without requiring the DOAH
clerk to send a copy of the DOAH order to the DCA Agency Clerk
because the DCA attorney will have received a copy of the DOAH
hearing officer' s order closing the DOAH file as an attorney of
record for a party in the DOAH proceedings . Why require the DOAH
Clerk to reproduce and mail a document which the DOAH hearing
officer has already reproduced and provided to an attorney in the
DCA Office of General Counsel?
The effect of removing the sentence from the draft order which
suggests that DOAH forward these cases to DCA for entry of a Final
Order, would be to leave such matters up to the discretion of the
hearing officer in individual cases . Such a procedure would also
avoid any possibility of a final order being entered inadvertently
in cases other than in litigated cases in which a recommended order
has been entered which requires final order disposition by either
DCA or the Administration Commission.
With best personal regards, I am
Sincerely,
4(401.,416 ,1)1491fi
Michael Wm. Morell
MWM:mm
Enclosure
cc: Kelly Tucker (by fax)
Robin Hassler, Esquire, (by fax)
Ann Cole, DOAH Clerk' s Office (by U.S. Mail)
John Cassels, Esquire (by U.S. Mail)
ORDER NO. AC-93-013
STATE OF FLORIDA
BEFORE THE
ADMINISTRATION COMMISSION
SHIRLEY PINDER, )
)
Petitioner, )
)
vs. ) CASE NO. ACC-93-010
) (DOAH Case No. 92-4910GM)
DEPARTMENT OF COMMUNITY AFFAIRS, )
AND OKEECHOBEE COUNTY, )
)
Respondents. )
)
FLORIDA MANUFACTURED HOUSING )
ASSOCIATION, INC. , AND TED )
KELCHER, )
)
Petitioners, )
)
vs. ) (DOAH Case No. 92-4911GM)
DEPARTMENT OF COMMUNITY AFFAIRS, )
Respondent, )
)
and )
)
OKEECHOBEE COUNTY, )
)
Intervenor. )
ORDER VACATING FINAL 98pER CLOSING FILE
On March 12, 1993, the Secretary of the Administration
Commission entered a Final Order Closing File in the above-
styled proceedings. A copy of the Division of Administrative
hearings' orders Closing File are attached hereto as Exhibits A
and B. It has come to the Commission's attention, however, that
in cases under section 163.3184 (9) , Florida Statutes (F. S. ) , the
Commission has no jurisdiction except if the matter was litigated
ATTACHMENT #1
i
and the Department of Community Affairs determines, after receipt
of the Recommended Order, that the plan or plan amendment at
issue is not in compliance. DOAH should forward this case to
the Department of Community Affairs for entry of a Final Order.
We do not intend by this Order to interfere with DOAH Case No.
92-4909GM, in any manner, and we make no findings which supports
or detracts from the position in that proceeding or of any of the
parties to that proceeding.
DONE AND ORDERED this day of March 1993, in Tallahassee,
Florida.
DAVID K. COBURN, Secretary
Administration Commission
FILED with the clerk of the Administration Commission
this day of March 1993.
Clerk, Administration Commission