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1992-08-08 City's M/Strike DCA's M/Dis or Amend STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CITY OF OKEECHOBEE, ) Petitioner, ) ) vs . ) DOAH Case No. 92-4909GM ) ) DCA Docket No. 91-NOI-4701-( I) DEPARTMENT OF COMMUNITY AFFAIRS, ) Respondent. ) ) CITY OF OKEECHOBEE's MOTION FOR ENTRY OF AN ORDER STRIKING THE DCA's MOTION TO DISMISS OR REQUIRING THE DEPARTMENT TO WITHDRAW OR AMEND ITS MOTION UNDER PAIN OF ADDITIONAL SANCTIONS INCLUDING ATTORNEY' S FEES Petitioner City of Okeechobee ( "City" ) , by and through its undersigned attorneys, and pursuant to Sections 120 . 57 ( 1) (b)5 . and 163 . 3184 ( 12 ) , Florida Statutes, and DOAH Rule 22I-6 . 016 , Florida Administrative Code, hereby moves for entry of an order striking the Department of Community Affairs ' ( "DCA" or "Department" ) motion to dismiss or requiring the Department to withdraw or amend its motion under pain of additional sanctions including attorney' s fees . In support of its motion the City states as follows : The Sanctions Statutes 1 . Section 163 . 3184 ( 12 ) , Florida Statutes, provides : The signature of an attorney or party constitutes a certificate that he has read the. . .motion. . .and that, to the best of his knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay. . .or frivolous purposes or needless increase in the cost of litigation. If a. . .motion. . . is signed in violation of these requirements, the hearing 1 f officer, upon motion or his own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the. . .motion. . . including a reasonable attorney' s fee. ' Section 163 . 3184 (9) (a) , Florida Statutes 2 . Section 163 . 3184 ( 9 ) (a) , Florida Statutes, provides that if the DCA issues a notice of intent to find a local government' s comprehensive plan in compliance, any affected person may file a petition with the DCA pursuant to Section 120 . 57 within 21 days after the publication of notice. DCA' s Rules 3 . DCA Rule 9-5 . 002 ( 1) , Florida Administrative Code, provides that requests to hold a hearing pursuant to Section 120 .57 , Florida Statutes, shall be filed with the Clerk of the Department. Rule 9- 5 . 002 ( 1) also provides that the Department shall act on such requests and grant or deny them within 15 days of filing. 4 . DCA has also adopted procedural rules which address the Department' s compliance review of local government comprehensive plans . These rules govern the submission of plans to the Department, the issuance of notices of intent concerning such plans and requests for formal hearings in the event that the DCA issues a notice of intent ( "NOI" ) to find a plan in compliance. See DCA Rule 9J-11 . 012, Florida Administrative Code. With minor variations not relevant here, Section 120 .57 ( 1) (b)5 . is identical to Section 163 . 3184 ( 12) , Florida Statutes . 2 5 . DCA Rule 9J-11 . 012 (8) (a) requires that each petition satisfy eight ( 8) criteria. Only one of the criteria requires information about the local government which has adopted the comprehensive plan which is the subject of the Department ' s NOI . Rule 9J-11 . 012 ( 8) (a) 6 . requires that the petition shall contain: A statement identifying the comprehensive plan or plan amendment(s) which is challenged, including the name of the local government, date of adoption, ordinance number(s) or other specific formal designation(s) . 6 . DCA Rule 9J-11 . 012 (8) (a) , Florida Administrative Code, does not require that the local government which has adopted the plan be joined as a party respondent. 7 . DCA Rule 9J-11 . 012 (8) (d) , Florida Administrative Code, provides in pertinent part: If a petition is filed that does not substantially comply with the requirements of subsection ( 8) (a) of this rule, the Department shall issue an order dismissing the petition with leave to file an amended petition complying with the requirements of this rule. . . The City's Petition 8 . On August 3, 1992, the City filed a petition with the DCA Clerk which addressed all of the eight (8) criteria contained in Rule 9J-11 . 012 (8) (a) , Florida Administrative Code. 9 . With regard to the requirement of Rule 9J-11 . 012 ( 8) (a) 6 . concerning the name of the local government which has adopted the comprehensive plan, ¶18 of the City' s petition alleges that on April 2, 1992, the Board of County Commissioners of Okeechobee County held a public hearing on the proposed plan, and at the conclusion of the public hearing voted to adopt Ordinance 92-05 by 3 , which the County adopted the Okeechobee County Comprehensive Plan. DCA's Forwarding of the City' s Petition to DOAH 10 . On August 11, 1992 DCA forwarded the City' s Petition to the Director of the Division of Administrative Hearings ( "DOAH" or "Division" ) for assignment to a hearing officer. In its cover letter of transmittal, the DCA stated: By merely forwarding these petitions the Department does not assume responsibility for complying with filing requirements of the Division of Administrative Hearings and does not waive any right of the Department to raise objections to the petitions . The DCA's Filing of the Motion to Dismiss 11 . On August 18, 1992, during a telephone conversation with the undersigned attorney for the City, counsel for DCA said that she had been instructed by a supervising attorney in the DCA Office of General Counsel to forward the City' s petition to DOAH contrary to her own recommendation that the Department enter an order dismissing the petition with leave to file an amended petition as is provided for in DCA Rule 9J-11 . 012 (8) (b) , Florida Administrative Code. Counsel for DCA further said that even though the Department may have found the City's petition sufficient as a matter of law under the Department ' s own Rule 9J-11 . 012 (8) (b) , counsel for DCA was still considering whether to recommend to her supervisors that the Department move to dismiss the City' s petition for failure to join an indispensable party. 12 . In response to the statements made by counsel for DCA during their telephone conversation of August 18, 1992, the 4 i undersigned stated that DOAH Rule 22I-6 . 012, Florida Administrative Code, provides that a party may file a motion with the hearing officer asking that persons -be notified of the proceeding and given an opportunity to be joined as a party of record. The undersigned then suggested that counsel for DCA call the undersigned back if she desired to continue the discussion in order to explore a mutually acceptable resolution. Counsel for DCA agreed to do so and the conversation ended. Counsel for DCA did not call the undersigned back. 13 . On August 24, 1992, the Department filed a motion to dismiss in the above-referenced case on the grounds that the City failed to join an indispensable party and failed to state a cause of action upon which relief may be granted. 14 . The DCA did not include a specific prayer for relief in its motion to dismiss or otherwise state in the motion whether the Department was seeking to have the City' s petition dismissed with prejudice or without prejudice. 15 . On September 1, 1992, the undersigned attorney for the City faxed a letter to counsel for DCA and her supervising attorney which proposed a seven ( 7 ) point stipulation as one way to facilitate the hearing officer' s orderly consideration of at least some of the preliminary procedural matters filed in the above- referenced case, including the Department' s concern about having Okeechobee County joined. (A copy of the undersigned' s September 1, 1992 letter to counsel for DCA is attached as Exhibit "A" and is incorporated by reference herein. ) In the letter, the undersigned 5 suggested that if the DCA wished to have Okeechobee County joined in the proceedings, the proper procedure would be for the Department to withdraw its Motion to dismiss and file a motion for joinder under DOAH Rule 22I-6 . 012 , Florida Administrative Code, which the City would not oppose. 16 . On September 2, 1992, a legal intern for the Department telephoned the undersigned and informed him that she had been authorized by counsel for DCA to represent that: ( 1) the Department would not withdraw its motion to dismiss; (2 ) the Department did not agree to the point in the proposed stipulation whereby the City would not oppose the DCA if it were to file a motion for joinder which would give Okeechobee County an opportunity to be joined as a party of record upon the County filing a petition for leave to intervene; and ( 3) the Department had no counter proposal for the consideration of the undersigned which would address both the City' s concerns with the motion to dismiss and the Department' s concerns with the County' s joinder. (A copy of the undersigned' s September 2 , 1992 letter of confirmation to DCA' s legal intern is attached as Exhibit "B" and is incorporated by reference herein. ) ARGUMENT SANCTIONS SHOULD BE IMPOSED BECAUSE THERE IS NO REASONABLY CLEAR LEGAL JUSTIFICATION WHICH CAN BE SHOWN FOR THE FILING OF THE MOTION TO DISMISS 17 . The City believes, that for reasons including those articulated in the City' s response in opposition to DCA' s motion to dismiss which the City has contemporaneously filed with the instant motion, there is no reasonably clear legal justification which can 6 J p be shown for the filing of the motion to dismiss . (A copy of the City of Okeechobee' s Response in Opposition to DCA' s Motion to Dismiss is attached as Exhibit "C" and is incorporated by reference herein. ) Therefore, the City believes that the motion was filed for improper purposes including "to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation. " Therefore, Sections 163 . 3184 ( 12 ) and 120 . 57 ( 1) (b) 5 . require that sanctions should be applied. THE MOTION WAS FILED FOR IMPROPER PURPOSES INCLUDING TO CAUSE UNNECESSARY DELAY OR FOR A FRIVOLOUS PURPOSE OR NEEDLESS INCREASE IN THE COST OF LITIGATION In Mercedes Lighting v. Department of General Services, 560 So. 2d 272 (Fla. 1st DCA 1990) , the court held that in considering what constitutes an improper purpose under Section 120 .57 ( 1) (b) 5 . , "the courts should not delve into an attorney' s or party' s subjective intent or into a good faith-bad faith analysis . " Id. at 278 . Instead, if a reasonably clear legal justification can be shown for the filing of the paper in question, improper purpose cannot be found and sanctions are inappropriate. As an example, . . . improper purpose may be manifested by excessive persistence in pursuing. . . [a] defense in the face of repeated adverse rulings, or by obdurate resistance out of proportion to the amounts or issues at stake. Id. The City has been unable to discern any reasonably clear legal justification for the filing of the motion in question. In the instant case, the undersigned discussed with counsel for DCA, and attempted to resolve, the Department' s concerns about the County' s joinder and her statement that even though the Department may have 7 r i found the City' s petition sufficient as a matter of law under the Department' s own Rule 9J-11 . 012 (8) (b) , counsel for DCA was still considering a recommendation to her supervisors that the Department move to dismiss the City' s petition for failure to join an indispensable party. Counsel for DCA refused to call the undersigned back, as had been agreed, so that counsel could further discuss a mutually satisfactory resolution of the matter. Instead counsel for DCA filed the motion to dismiss . After DCA filed its motion, in the spirit of good faith cooperation and coordination among counsel, the City proposed a stipulation as one way to facilitate the hearing officer' s orderly consideration of at least some of the preliminary procedural matters filed in the above-referenced case. The City' s proposed stipulation included points which addressed the Department' s concern about having Okeechobee County joined as a party respondent. DCA again rejected the City' s proposal, stating that it would not withdraw its motion or counter with a proposed stipulation of its own addressing its own concerns regarding Okeechobee County' s joinder. The Department' s rejection of the City' s efforts to resolve the matter constitutes an excessive persistence in representing the interests of a non-party, Okeechobee County, which has its own opportunities to enter these proceedings under DOAH rules . The Department persistently has attempted to represent a non-party' s interest, in light of repeated good faith efforts of the City to mutually resolve concerns without compromising the interests of the 8 clients or further burdening this tribunal, the present parties or future parties further.2 The Department ' s rejedtion of the City' s efforts to resolve the DCA' s concerns about the County' s joinder further constitutes obdurate resistance out of proportion to the amounts or issues at stake. Counsel for all parties in this litigation have an ethical obligation to make reasonable efforts to expedite litigation, consistent with the interests of their clients . The clients in the proceedings surrounding the motion to dismiss whose interests should be protected are the Department of Community Affairs and the City of Okeechobee. However, the interests which are being represented here by the DCA in filing the motion and in refusing to stipulate to these matters are not the interests of the Department, 2 The City has served Okeechobee County with a courtesy copy of every pleading it has filed in this case. It has done so voluntarily in a spirit of intergovernmental coordination and in keeping with the spirit of public participation as recently recognized by the Administration Commission in the case of Department of Community Affairs et al . vs . City of Ft. Myers, ACC Case No. ACC-92-002 : The Growth Management Act discloses a legislative intent to provide affected persons with a meaningful opportunity to challenge plan provisions . This opportunity is the final phase of public participation in the planning process, which includes plan litigation. Id. (Final order of the Administration Commission issued on April 8, 1992 adopting from Hearing Officer Meale' s Recommended Order his Proposed Conclusion of Law ¶18 . ) Notwithstanding the City' s voluntary efforts to keep the County apprised of its actions in this case, it has been over 35 days and the County still has not put in an appearance. If the case is not of sufficient importance to the County, as evidenced by its failure to appear, why is the County' s joinder of such an importance to the DCA? 9 i t but the interests of a non-party which the Department has no legal duty to represent. The Department, rather than defending its preliminary agency action which is at issue in this case, is defending a non-party who has had notice of the proceedings for 35 days and still has not chosen to put in an appearance other than through joining in DCA' s Motion to Consolidate. The DCA' s representation of a non-party and the filing of the motion to dismiss for failure to join the non- party as an indispensable party should be found to constitute an improper purpose. THE MOTION SHOULD BE FOUND TO HAVE BEEN FILED FOR AN IMPROPER PURPOSE EVEN IF IT IS NOT FOUND TO BE FRIVOLOUS The Department' s motion to dismiss should be found to have been filed for an improper purpose even if the hearing officer finds that it was not filed for a frivolous purpose. In Good Samaritan Hospital v. DHRS, 582 So. 2d 772 , 723, (Fla. 4th DCA 1991) , the court held that an administrative complaint found not to be supported by a permissible interpretation of applicable statutes and rules was held to have been filed for an "improper purpose, " despite "an absence of frivolousness. " The DCA may be attempting by its motion to convince the hearing officer to enter a recommended order of dismissal so that the Department, upon receipt of the recommended order, may circumvent the effect of the DCA' s previous waiver and thereby regain a lost opportunity to impermissibly interpret its own Rule 9J-11 . 012 (8) (a) and (d) , Florida Administrative Code, as requiring 10 A joinder of Okeechobee County. DCA does not have the authority under Rule 9J-11 . 012(8) (a) or (d) , Florida Administrative Code, to find the petition not in substantial compliance with the requirements of the rule for failure to join the County. Neither Section 163 . 3184 ( 9 ) (a) , Florida Statutes, or Rule 9J-11 . 012 , Florida Administrative Code, contain a requirement that the City join the County as a party respondent. In the absence of an express joinder requirement in the statute or Rule 9J-11 . 012, any interpretation by the Department of its rule as requiring joinder of the County constitutes an impermissible interpretation of the statute and the rule. The City further notes that the Department has not included a specific prayer for relief in its motion or otherwise stated whether it seeks to dismiss the City' s petition with or without prejudice. The Department may have omitted a specific prayer for relief from its motion so as to avoid committing itself to argument in a written pleading which could be used to demonstrate that the real objective here is the Department' s attempt to undo the effect of its previous waiver so as to impermissibly interpret its own rule once the recommended order is entered and the petition is back in the Department' s jurisdiction. Such a strategy would constitute the filing of an ambiguous motion to dismiss for an improper purpose, i .e. , including an attempt by the Department to enforce its non-rule policy interpretation of its own Rule 9J-11 .012 (8) (a) as requiring joinder of the County through adjudication (or more precisely through a litigation tactic) and entry of an order of 11 J � dismissal, rather than rule-making as required by law. See Good Samaritan Hospital, supra, at pg. 724 . The Sanction to be Applied Should Be An Order Which Directs the Department to Strike or Withdraw its Motion Under Pain of Additional Sanctions for Unwarranted Refusal For the above-stated reasons, and consistent with the analogous duty recognized under interpretations of Federal Rule 11 to mitigate damages caused by filings in violation of said Federal Rule and Sections 163 . 3184 ( 12 ) and 120 . 57 ( 1) (b) 5 . by moving to strike or taking other prompt action, the City believes that the hearing officer should enter an order which grants the City' s motion and orders the DCA to strike its motion to dismiss or, at the very least withdraw it or amend it on pain of additional sanctions for unwarranted refusal . See Mercedes Lighting, supra, at 279 . WHEREFORE, Petitioner City of Okeechobee respectfully requests that the hearing officer enter an order striking the DCA' s motion to dismiss or requiring the Department to withdraw or amend its motion under pain of additional sanctions including attorney' s fees . Respectfully submitted on September F4'h , 1992 by: kdOA6J4rag Michael Wm. Morell Attorney at Law 310 West College Avenue Tallahassee, Florida 32301-1406 (904 ) 425-8300 12 t � and John R. Cook City Attorney City of Okeechobee 202 N.W. 5th Avenue Okeechobee, Florida 34972 (813) 467-0297 Attorneys for City of Okeechobee CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has provided by hand delivery to Karen Brodeen, Assistant General Counsel, Department of Community Affairs, 2740 Centerview Drive, Tallahassee, Florida, 32399-2100 and by U. S. Mail to John D. Cassels, Jr. , County Attorney, Okeechobee County, 400 N.W. Second Street, P.O. Box 968, Okeechobee, FL 34973 on this g3/4 day of September, 1992 . W Michael Wm. Morell 13 MICHAEL WM. MORELL ATTORNEY AT LAW 310 WEST COLLEGE AVENUE ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 32301-1406 ALSO ADMITTED IN THE ENVIRONMENTAL AND LAND USE LAW DISTRICT OF COLUMBIA (904) 425-8300 (904) 425.8301 FACSIMILE September 1, 1992 2 : 00 p.m. VIA FACSIMILE TRANSMISSION 904/922-2679 and U.S. Mail Karen Brodeen David Russ Assistants General Counsel Florida Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Re: City of Okeechobee v. DCA, DOAH Case No. 92-4909GM; Shirley Pinder v. DCA and Okeechobee County, DOAH Case No. 92- 4910GM Florida Manufactured Housing Association, Inc. and Ted Kelchner v. DCA, DOAH Case No. 92-4911GM. Dear Karen and David: In the spirit of good faith cooperation and coordination among all counsel of record, and in keeping with principles of efficient case management, I would like to propose the following 7 point stipulation as one way to facilitate the hearing officer' s orderly consideration of at least some of the preliminary procedural matters in the above-referenced three cases : 1 . DCA would immediately file a notice of withdrawal of its motions to dismiss for failure to join an indispensable party which have been filed in the cases of City of Okeechobee v. DCA and FMHA, Inc. & Kelchner v. DCA. 2 . DCA would then file, pursuant to DOAH Rule 22I-6 . 012, F.A.C. , motions for entry of an order in the cases of City of Okeechobee v. DCA and FMHA, Inc. & Kelchner v. DCA. In the motions the Department would request that the hearing officer enter orders notifying Okeechobee County of the two proceedings and giving the County an opportunity to be joined as a party of record upon the County filing petitions for leave to intervene in each case pursuant to DOAH Rule 22I-6 . 010; DCA would be authorized to represent that petitioners in each respective case do not oppose the Department's motion for entry of an order notifying the County of an opportunity to file a petition for leave to intervene in each case. (The petitioners would appreciate the courtesy of reviewing the motions prior to filing. ) Exhibit "A" • David Russ Karen Brodeen September 1, 1992 Page Two 3 . DCA would immediately notify the hearing officer by filing a pleading which stated that, consistent with the motion for entry of an order filed on August 20, 1992 by the City in the case of City of Okeechobee v. DCA and consistent with Karen Brodeen's earlier conversation with David Eastman, counsel for FMHA, Inc . and Ted Kelchner, the Department has no opposition to the entry of an order granting the City, FMHA, Inc. and Kelchner leave to file amended petitions within 10 days of the entry of the order; 4 . The parties in all three of the above-referenced cases would reserve their right to oppose, respond or support the motion to consolidate the above-referenced three cases filed by the Department in City of Okeechobee v. DCA; and 5 . In the case of City of Okeechobee v. DCA, the City would file a joint response to the hearing officer' s notice of assignment and order dated August 21, 1992 in which the City and DCA would inform the hearing officer that in order to accommodate a broad scope of discovery, settlement negotiations and/or mediation between the parties (should the parties so voluntarily agree to participate in such mediation) , the City and DCA prefer a 5 day hearing be scheduled in Okeechobee County on February 22-26, 1993 and that the formal hearing should not be scheduled on the following dates : November 2-10, 1992, November 23-30, 1992, December 2-11, 1992 and December 21-31, 1992 . ' 6 . In the case of FMHA, Inc. and Kelchner v. DCA, FMHA, Inc. and Kelchner would file a joint response to the hearing officer' s notice of assignment and order entered in that case in which FMHA, Kelchner and DCA would inform the hearing officer of the number of days, place and date of the final hearing to be held in February of 1993 (after counsel for FMHA and Kelchner and counsel for DCA have conferred) . 7 . Should the hearing officer ultimately end up consolidating the three cases, the number of days and dates of hearing would have to redetermined pursuant to subsequent order of the hearing officer. Karen Brodeen David Russ September 1, 1992 Page Three Karen and David, I hope that the Department, other counsel of record, and counsel for Okeechobee County agree that this would be a sensible way to manage at least some of the preliminary procedural matters in the cases while still allowing each attorney to counsel and represent their respective client' s interests . I have, spoken with David Eastman this morning, counsel for FMHA, Inc. and Ted Kelchner. David agrees that this sort of a stipulation makes sense. Please contact me as soon as possible to let me know what the Department' s position with regard to such a stipulation would be. If I do not hear from the Department by 5 : 00 p.m. on Wednesday, September 2, 1992 I will assume that the Department is not interested in pursuing such a stipulation and the attorneys for the various parties may proceed accordingly. With best personal regards, I am Sincerely, t114460141/10/.0 Michael Wm. Morell MWM:mm cc. Via Facsimile and U.S . Mail to the following: John Cassels, Okeechobee County Attorney David Eastman, Counsel for FMHA and Ted Kelchner Robert V. Kennedy, Counsel for Shirley Pinder John Cook, City Attorney for City of Okeechobee John Drago, City Administrator • MICHAEL WM. MORELL ATTORNEY AT LAW 310 WEST COLLEGE AVENUE ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 32301-1406 ALSO ADMITTED IN THE ENVIRONMENTAL AND LAND USE LAW DISTRICT OF COLUMBIA (004) 425•8300 (904) 425.8301 FACSIMILE September 2,• 1992 3:00 p.m. VIA FACSIMILE TRANSMISSION 904/922-2679 and U.S. Mail Susanne Lazear Legal Intern Office of General Counsel Florida Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Re: City of Okeechobee v. DCA, DOAH Case No. 92-4909GM; Shirley Pinder v. DCA and Okeechobee County, DOAH Case No. 92- 4910GM Florida Manufactured Housing Association, Inc . and Ted Kelchner v. DCA, DOAH Case No. 92-4911GM. Dear Susanne: The purpose of this letter is to confirm the details of your telephone call to me this afternoon and our conversation concerning the Department' s response to a letter of proposed stipulation which I sent to Karen Brodeen and David Russ on September 1, 1992 concerning the above-referenced three cases . During our conversation you stated that because Karen remains out of the office on sick leave, she had authorized you to respond on behalf of the Department to my letter. You further stated that Karen had authorized you to state that the Department's response was that "it would not withdraw its motion to dismiss and would only respond to item 5 of the proposed stipulation" which concerns the City and DCA's response to the hearing officer' s notice of assignment and order entered on August 21, 1992 in only the City of Okeechobee v. DCA case. You stated that Karen had authorized you to state that the Department could only agree with item 5 . provided that the joint report to the hearing officer were amended to add the following dates during which the City and DCA do not want the final hearing to be held: November 19th, 26th, and 27th of 1992, December 3rd & 10th of 1992, January 1st, 14th, and 28th of 1993 and February 11th and 25th of 1993. When I asked you if the Department has a counter proposal for the consideration of counsel which addresses items 1. , 2 . , 3. , 4 . , 6 . and 7 . in the September 1st letter you stated "No" . Exhibit "B" Suzanne Lazear September 2, 1992 Page Two If I have misunderstood or misrepresented the facts of our telephone conversation, please contact me immediately. Sincerely, bittbi.dial .C1(1.4 Michael Wm. Morell MWM:mm cc. Via Facsimile and U.S. Mail to the following: Karen Brodeen, DCA Assistant General Counsel David Russ, DCA Assistant General Counsel John Cassels, Okeechobee County Attorney David Eastman, Counsel for FMHA and Ted Kelchner Robert V. Kennedy, Counsel for Shirley Pinder John Cook, City Attorney for City of Okeechobee John Drago, City Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CITY OF OKEECHOBEE, ) ) Petitioner, ) vs . ) DOAH Case No. 92-4909GM ) DCA Docket No. 91-NOI-4701-(I) ) DEPARTMENT OF COMMUNITY AFFAIRS, ) ) Respondent. ) ) CITY OF OKEECHOBEE's RESPONSE IN OPPOSITION TO DCA's . MOTION TO DISMISS Petitioner City of Okeechobee ( "City" ) , by and through its undersigned attorneys, and pursuant to DOAH Rule 22I-6 . 016, Florida Administrative Code, hereby files this response in opposition to the Department of Community Affairs ' ( "DCA" or "Department" ) Motion to Dismiss filed on August 26 , 1992 in the above-referenced case. In support of its response the City states as follows: The Statute 1 . Section 163 . 3184 (7) and ( 15) (a) , Florida Statutes, requires that each local government shall adopt its comprehensive plan by ordinance prior to transmitting its plan to the state for a determination of whether the plan is in compliance or not in compliance. 2 . Under Section 163 .3194 ( 1) (a) , Florida Statutes, after a local government has adopted its comprehensive plan by ordinance, the plan is legally in effect and all development undertaken by, 1 Exhibit "C" and all actions taken in regard to development orders, shall be consistent with such plan or element as adopted. 3. Section 163 . 3184 (9) (a) , Florida Statutes, provides that if the DCA issues a notice of intent to find a local government's comprehensive plan in compliance, any affected person may file a petition with the DCA pursuant to Section 120. 57 within 21 days after the publication of notice. 4 . Section 163 . 3184 ( 11) (a) , Florida Statutes, provides that if the Administration Commission ( "Commission" ) finds that the comprehensive plan is not in compliance, there are three courses of action available to the Commission: (a) " [ It] shall specify remedial actions which would bring the comprehensive plan. . . into compliance" ; (b) " [ It] may direct state agencies not to provide [certain] funds [to] those local governmental entities which have comprehensive plans . . .that are determined not to be in compliance" ; and (c) " [ It] may also specify that the local government shall not be eligible for [certain grant and revenue sharing] programs . " 5 . There is no provision in Chapter 163, Part II, Florida Statutes, which requires or compels a local government whose plan has been found to be not in compliance to adopt the remedial actions specified by the Commission. The only sanctions which the Commission may administer against a non-compliant local government which refuses to adopt the specified remedial actions are those authorized under Section 163 . 3184 ( 11) (a) . 2 The Model Rules of Procedure 6 . "The Model Rules of Procedure govern administrative hearings 'to the extent that [a referring] agency has not adopted its own specific rules of procedure covering the subject matter contained in [Chapter 28-5] applicable to that agency. ' Model Rule 28-5 . 101 . " Robert T. Benton and G. Steven Pfeiffer, "Administrative Adjudication" , pg.4-10 (Published in Florida Administrative Practice, Third Edition, The Florida Bar Continuing Legal Education) ( "Administrative Adjudication") . 7 . Chapter 28-5, Florida Administrative Code, is the chapter of the Model Rules of Procedure which pertains to Decisions Determining Substantial Interests . Model Rule 28-5. 201, Florida Administrative Code, is titled "Initiation of Formal Proceedings" and provides in pertinent part: "Initiation of formal proceedings shall be made by petition to the Agency responsible for rendering final Agency action. " 8 . Model Rule 28-5 .205, Florida Administrative Code, is titled "Motions in Opposition to Petition" and provides in pertinent part: "Motions in opposition to a petition. . . include motions to dismiss . . .shall be filed within twenty (20) days of service of the petition. " DCA's Rules 9 . The DCA's rules of procedure which pertain to Decisions Determining Substantial Interests are contained in Chapter 9-5, Florida Administrative Code. However, rather than adopt its own specific rules which cover particular subjects contained in the 3 Model Rules of Procedure for Decisions Determining Substantial Interests, the DCA has adopted Rule 9-5 . 001, Florida Administrative Code, which provides that the Department "will follow and conform to the procedures as established in the Model Rules of Procedure as found in Chapter 28-5, F.A.C. , and all applicable sections of Chapter 120, Florida Statutes, with respect to all proceedings in which substantial interests are determined by the Department. . . " 10 . DCA Rule 9-5 .002 ( 1) , Florida Administrative Code, provides that requests to hold a hearing pursuant to Section 120.57, Florida Statutes, shall be filed with the Clerk of the Department. Rule 9-5 .002 ( 1) also provides that the Department shall act on such requests and grant or deny them within 15 days of filing. 11 . DCA has also adopted procedural rules which address the Department' s compliance review of local government comprehensive plans . These rules govern the submission of plans to the Department, the issuance of notices of intent concerning such plans and requests for formal hearings in the event that the DCA issues a notice of intent ( "NOI" ) to find a plan in compliance. See DCA Rule 9J-11 . 012, Florida Administrative Code. 12. DCA Rule 9J-11 .012 (8) (a) , like Model Rule 28-5 . 201 and DCA Rule 9-5 .002( 1) , also requires that the petition shall be filed with the DCA Clerk. 4 13 . DCA Rule 9J-11 . 012 (8) (a) requires that each petition satisfy eight (8) criteria. Only one of the criteria requires information about the local government which has adopted the comprehensive plan which is the subject of the Department' s NOI . Rule 9J-11 . 012 (8) (a) 6 . requires that the petition shall contain: A statement identifying the comprehensive plan or plan amendment(s) which is challenged, including the name of the local government, date of adoption, ordinance number(s) or other specific formal designation(s) . 14 . DCA Rule 9J-11 .012(8) (a) , Florida Administrative Code, does not require that the local government which has adopted the plan be joined as a party respondent. 15 . DCA Rule 9J-11 . 012 ( 8) (d) , Florida Administrative Code, provides in pertinent part: If a petition is filed that does not substantially comply with the requirements of subsection (8) (a) of this rule, the Department shall issue an order dismissing the petition with leave to file an amended petition complying with the requirements of this rule. . . 16 . Unlike DCA Rule 9-5 .002( 1) which provides that the Department shall act on a request for a hearing and grant or deny it within 15 days of filing, DCA Rule 9J-11 . 012 (8) (d) does not state a period of time in which the Department will determine if the petition substantially complies with the eight (8) criteria contained in Rule 9J-11 . 012 (8) (a) , Florida Administrative Code. 5 The City's Petition 17 . On August 3, 1992, the City filed a petition with the DCA Clerk which addressed all of the eight (8) criteria contained in Rule 9J-11 . 012(8) (a) , Florida Administrative Code. (A copy of the first page of the City's petition for administrative hearing showing the executed filing and acknowledgement statement of the DCA Clerk is attached as Exhibit "A" and is incorporated by reference herein. ) 18 . With regard to the requirement of Rule 9J-11 . 012 ( 8) (a) 6 . concerning the name of the local government which has adopted the comprehensive plan, 1[18 of the City's petition alleges that on April 2, 1992, the Board of County Commissioners of Okeechobee County held a public hearing on the proposed plan, and at the conclusion of the public hearing voted to adopt Ordinance 92-05 by which the County adopted the Okeechobee County Comprehensive Plan. DCA's Forwarding of the City's Petition to DOAH 19 . On August 11, 1992 DCA forwarded the City' s Petition to the Director of the Division of Administrative Hearings ( "DOAH" or "Division" ) for assignment to a hearing officer. (A copy of DCA's cover letter of transmittal forwarding the petition to DOAH is attached as Exhibit "B" and is incorporated by reference herein. ) In its cover letter of transmittal, the DCA stated: By merely forwarding these petitions the Department does not assume responsibility for complying with filing requirements of the Division of Administrative Hearings and does not waive any right of the Department to raise objections to the petitions . 6 20 . On August 18, 1992, during a telephone conversation with the undersigned attorney for the City, counsel for DCA said that she had been instructed by a supervising attorney in the DCA Office of General Counsel to forward the City' s petition to DOAH contrary to her own recommendation that the Department enter an order dismissing the petition with leave to file an amended petition as is provided for in DCA Rule 9J-11 . 012 (8) (b) , Florida Administrative Code. Counsel for DCA further said that even though the Department may have found the City' s petition sufficient as a matter of law under the Department 's own Rule 9J-11 . 012 (8) (b) , counsel for DCA was still considering whether to recommend to her supervisors that the Department move to dismiss the City's petition for failure to join an indispensable party. 21 . On August 24 , 1992, the Department filed a motion to dismiss in the above-referenced case on the grounds that the City failed to join an indispensable party and failed to state a cause of action upon which relief may be granted. ARGUMENT THE MOTION WAS NOT TIMELY FILED WITHIN 20 DAYS OF FILING OF THE PETITION 22 . The Department' s motion to dismiss was not timely filed. The motion to dismiss was filed on August 26, 1992, 23 days after the City initiated these proceedings by filing its petition with the DCA Clerk. The City timely filed its petition with the DCA Clerk and served its petition upon the Department in accordance with Section 163 . 3184 (9) (a) , Florida Statutes, Model Rule 28-5 .201 and DCA Rules 9-5 . 002( 1) and 9J-11 .012, Florida Administrative 7 Code. 1 In filing its motion, the Department should be required to act consistent with the procedural strictures of its own rules regarding filing and initiation of proceedings, including DCA Rules 9-5 . 002 ( 1) and 9J-11 . 012 . The DCA has also adopted Rule 9-5 . 001 which requires that the Department follow and conform to Model Rule 28-5 .201 regarding initiation of proceedings and filing of petitions . Most importantly, by adopting Rule 9-5 . 001 the DCA is required to follow and conform to Model Rule 28-5 . 205 which requires that motions in opposition to a petition, including motions to dismiss, shall be filed within twenty (20) days of service of the petition. The Department did not follow or conform to Model Rule 28-5 . 205 when it filed its motion in opposition to the City's petition. 23 . The fact that the DCA stated in its cover letter of transmittal to DOAH that by forwarding the petition to the Division the Department did not want to be construed as having "waive[d] any right of the Department to raise objections to the petition" does not exempt the Department from the timely filing requirement of Model Rule 28-5 .205. 1 The City disagrees with the assertion of the DCA made in ¶1 of the Department's motion which states: "On August 11, 1992, the petition was filed. . .thus trigger[ing] a request for administrative hearing pursuant to Section 163 . 3184 (9) , F.S. " The City' s petition may have been "forwarded" to the Division on August 11, 1992 but it was filed on August 3, 1992 at the moment the Department' s Clerk stamped and executed the Department 's filing and acknowledgement statement on the petition. See Exhibit "A" . 8 24 . The Department did not file its motion in opposition within 20 days of the filing of the petition with the DCA Clerk. It filed its motion in opposition 23 days after said filing. DCA was 3 days late. Therefore, the motion should be rejected as having been untimely filed. THE DCA WAIVED ITS RIGHT TO MOVE TO DISMISS THE PETITION WHEN IT FOUND THE PETITION SUBSTANTIALLY COMPLIED WITH THE REQUIREMENTS OF THE DEPARTMENT'S OWN RULE 9J-11 .012 (8) (b) . 25 . The DCA waived its right to move to dismiss the City' s petition when the Department found that the petition substantially complied with the requirements of its own Rule 9J-11 . 012 (8) (b) and forwarded the petition to DOAH. Having chosen not to exercise any authority it may have had under its own rules to determine that the City' s petition does not substantially comply, the DCA should not now be heard to object to the City' s petition before DOAH based on theories of mandatory joinder or indispensable parties .2 Such 2 The City does not admit that the DCA has authority under Rule 9J-11 . 012 (8) (d) , Florida Administrative Code, to find the petition not in substantial compliance with the requirements of subsection (8) (a) of the rule for failure to join Okeechobee County as a party respondent. Rule 9J-11 .012 does not contain a requirement that the City join the County as a party respondent. In the absence of an express joinder requirement in Rule 9J-11 . 012, any interpretation by the Department of its rule as requiring joinder of the County constitutes an impermissible interpretation of its rule. The City also notes that the Department has not included a specific prayer for relief in its motion or otherwise stated whether it seeks to dismiss the City' s petition with or without prejudice. The Department may have omitted a specific prayer from its motion so as to avoid committing itself in writing to an argument which could be used to demonstrate that the DCA is impermissibly interpreting its own rule. Because the City believes that the Department may have filed its motion to dismiss for improper purposes, i .e. , including attempting to enforce its non- 9 r 3 theories , if applicable at all in administrative proceedings, should have been raised by the DCA when the petition was within the purview of the Department's own jurisdiction. Nonjoinder of parties is not a jurisdictional defect which may be raised at any time. Valparaiso Realty Company v. City of Valparaiso, 473 So. 2d 1 (Fla. 1st DCA 1985) . 26 . Furthermore, the City argues in the alternative, that the DCA waived its right to ask the hearing officer to dismiss the City' s petition when the Department failed to follow its own Rule 9-5 . 002 ( 1) , which requires that the Department shall act on a request to hold a formal hearing pursuant to Section 120 . 57, and grant or deny such request within 15 days of the filing of the petition. DCA' s Rule 9J-11 . 012 (8) (d) , which is silent with regard to the period of time within which the Department should find the petition sufficient, should be construed in pari materia with DCA Rule 9-5 .002( 1) which requires that a request for formal hearing be granted or denied by the Department within 15 days . 27 . Finally, the City further argues in the alternative, that even if DCA did not waive its right to request that the hearing officer dismiss the petition, the DCA should be barred from arguing dismissal now before DOAH because the Department did not file its rule policy interpretation of its Rule 9J-11 . 012 (8) (a) as requiring joinder of the County through adjudication and entry of an order of dismissal, rather than rule-making as required by law, the City has contemporaneously filed a motion for entry of an order striking the DCA' s motion to dismiss or requiring the Department to withdraw or amend its motion under pain of additional sanctions including attorney's fees . See, Good Samaritan Hospital vs . DHRS, 582 So. 2d 722 (Fla. 4th DCA 1991) . 10 motion with the hearing officer within 15 days of the August 3, 1992 filing of the petition. To allow the Department to file such a motion within 15 days of "forwarding the petition to DOAH" rather than within 15 days of the filing of the petition with the DCA Clerk, would allow the Department to circumvent the requirement of Rule 9-5 . 002 ( 1) that the Department will inform persons filing petitions with the DCA whether their petitions are granted or denied with 15 days of filing. Persons petitioning state agencies should be able to rely upon the commitments which the agency has made in its procedural rules regarding the timely disposition of requests for formal proceedings. THE MOTION IGNORES BOTH FUNDAMENTAL ADMINISTRATIVE LAW PRINCIPLES CONCERNING SECTION 120.57 ( 1) CHALLENGES TO PRELIMINARY STATE AGENCY ACTION AND THE LIMITED INCLUSION OF COUNTY GOVERNMENTS IN THE APA's DEFINITION OF AGENCY 28. The City' s petition has satisfied each and every requirement of Sections 163 . 3184 (9) and 120 .57 ( 1) , Florida Statutes, and DCA's rules . None of these substantive and procedural authorities require the City to join Okeechobee County as a party respondent. Therefore, the DCA's motion to dismiss should be denied because the City has done everything that it was required to do by statute and rule. 29 . The Department's motion should be denied because it fundamentally ignores established legal principles concerning challenges to preliminary agency action which have been an integral part of Florida's Administrative Procedures Act ( "APA" ) , Chapter 120, Florida Statutes, since it was enacted 18 years ago. 11 e ,, 30 . DCA' s motion ignores both the provisions of Chapter 163, Part II, Florida Statutes, and the plain language of the City' s petition, which challenges only DCA's preliminary agency action in issuing a notice of intent to find Okeechobee County' s plan "in compliance" . Nowhere in Section 163 . 3184 (9) (a) , Florida Statutes, is the local government whose plan is subject to the DCA' s NOI mentioned as a required party to the proceeding. 31 . Indeed, Okeechobee County' s action in adopting its comprehensive plan cannot even be described as the type of agency action normally subject to challenge in Section 120 . 57( 1) proceedings . In adopting its comprehensive plan by ordinance, the County has not taken "preliminary agency action" . The County has taken what can best be described as final local government action. Okeechobee County has adopted a comprehensive plan which is presently in effect and legally operative. Once the County had adopted its plan by ordinance, there was nothing preliminary about the County' s action at all -- all development undertaken by, and all actions taken in regard to development orders, was required to be consistent with such plan or element as soon as it was adopted. Section 163 . 3194( 1) (a) , Florida Statutes. 32. Furthermore, Okeechobee County' s action in adopting its comprehensive plan is not even the type of local government decisionmaking which is occasionally contemplated as being subject to Section 120 .57( 1) challenges. Under Section 120 .52 ( 1) (c) , Florida Statutes, "counties" are defined as "agencies" subject to Chapter 120 "only to the extent they are expressly made subject to 12 F y [the APA] by general law or special law or existing judicial decisions . " Since the relevant general law at issue in this proceeding, Section 163 . 3184 (9) (a) , Florida Statutes, does not even mention the County as a required party and expressly subjects only DCA' s preliminary agency action in issuing a notice of intent to find the County' s plan in compliance to Section 120 .57 ( 1) challenge, the City' s petition properly joined only the DCA as a party respondent. 33 . Finally, since the City' s petition satisfies the procedural and statutory prerequisites contained in Chapter 120 and Chapter 163, Part II, Florida Statutes, DOAH jurisdiction in these types of cases attaches as a matter of statutory right. The Division' s jurisdiction should not be subject to what is in effect a thinly veiled motion to relinquish jurisdiction parading in the clothes of a motion to dismiss . This should be readily apparent in view of the arguments made above concerning the DCA's waiver of its right to determine the petition to be not in substantial compliance with the Department's own rules . THE MOTION IGNORES THE DISTINCTION UNDER FLORIDA'S GROWTH MANAGEMENT ACT BETWEEN THE EXERCISE OF FISCAL POWER BY THE STATE IN APPLYING SANCTIONS AND THE EXERCISE OF POLICE POWER BY LOCAL GOVERNMENTS IN ESTABLISHING AND IMPLEMENTING COMPREHENSIVE PLANNING PROGRAMS TO GUIDE AND CONTROL FUTURE DEVELOPMENT 34 . In justification for its motion to dismiss for failure to join an indispensable party, the Department asserts in 113 and ¶5 of its motion that if the Administration Commission ultimately determines Okeechobee County' s plan to be "not in compliance" , the Commission will not be able to "require" or "order" Okeechobee 13 County to amend its plan unless it has in personam jurisdiction over the County. This assertion completely distorts the intended legislative distinction between the exercise of fiscal power by the state in applying sanctions to a noncompliant local government and the exercise of the police power by a local government in establishing and implementing a comprehensive planning program to guide and control future development within its jurisdiction. 35 . Section 163 . 3184 ( 11) (a) , Florida Statutes, provides that the Administration Commission only has three courses of action available to it after finding a local government' s plan to be "not in compliance" : (a) " [It] shall specify remedial actions which would bring the comprehensive plan. . . into compliance"; (b) " [ It] may direct state agencies not to provide [certain] funds [to] those local governmental entities which have comprehensive plans . . .that are determined not to be in compliance"; and (c) " [It] may also specify that the local government shall not be eligible for [certain grant and revenue sharing] programs . " 36 . Contrary to DCA's assertion, there is no provision anywhere in Chapter 163, Part II, Florida Statutes, through which the Commission may require or compel a local government whose plan has been found to be not in compliance, to adopt the remedial actions specified by the Administration Commission. All that is available is the imposition of sanctions which the Commission may administer under Section 163 . 3184 ( 11) (a) . The Florida courts have recently recognized the distinction between specifying remedial actions and/or imposing sanctions, and compelling a local 14 • government to adopt amendments . In Florida League of Cities et al . vs . Administration Commission and DCA, 586 So. 2d 397 (Fla. 1st DCA . 1991) , the First District Court of Appeal chose to describe fiscal sanctions under Florida's Growth Management Act as a mere "disincentive" to noncompliance. The court went on to recognize that the Commission' s existing policy on sanctions "only poses a substantial disincentive' to those local government whose plans are not in compliance for a substantial period of time. " Id. at 409 . A non-compliant local government may choose not to view the imposition of financial sanctions as a substantial disincentive to remaining in noncompliance. Such a local government may legitimately choose to ignore the specified remedial actions, legally refuse to amend its plan, suffer the pain of fiscal sanctions and avoid Section 163. 3184 (9) proceedings all together if it wishes . The Department's theory of indispensable joinder of the County does not hold up to a rigorous analysis of the statutory framework. 37 . The Department' s argument that Okeechobee County is indispensable in these proceedings is further weakened by Section 163. 3184 ( 13) , Florida Statutes, titled "Exclusive Proceedings" which provides : "The proceedings under this section shall be the sole proceeding or action for a determination of whether a local government' s plan, element, or amendment is in compliance with this act. " A determination of whether a local government's plan is in compliance is not a determination which mandates that a local government shall be required to amend its plan to bring it into 15 s 1 compliance. 38. Florida's Growth Management Act does not preempt the power of local governments to exercise their constitutional police powers to establish and implement comprehensive planning programs to guide and control future development. Nor does the act delegate to DCA, DOAH or the Administration Commission the authority to exercise the police power of the state to amend or change the legislative decisions of a local government regarding a community' s plan which has been legally adopted by the elected governing body of a non-compliant local government. Only the elected members of a non-compliant local government's governing body may make the legislative decision of whether or not to adopt the specified remedial actions through an amendment to its adopted comprehensive plan which would bring the plan into compliance with the act. 39 . DCA may want Okeechobee County to be a party to these proceedings . Okeechobee County may itself ultimately decide to become a party to the proceedings to protect its interests in avoiding fiscal sanctions . However, the DCA' s wish and the County's ultimate decision as to whether to enter this case or not are not equivalent issues to the question presented here concerning whether the City should be required to join the County as a party respondent. 40. The City submits that the proper procedure to be utilized by DCA if it wishes the County to come in, is for the Department to file a motion for joinder under DOAH Rule 22I-6 . 012, Florida Administrative Code. The City further submits that should the 16 County desire to come in to protect its own interests, it may do so by filing a petition for leave to intervene under DOAH Rule 22I- 6 . 010, Florida Administrative Code. THE AMBIGUITY IN THE MOTION SHOULD BE CONSTRUED AGAINST THE DEPARTMENT AND SHOULD THE HEARING OFFICER DECIDE TO ENTER A RECOMMENDED ORDER OF DISMISSAL, THE DISMISSAL SHOULD BE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 41 . "Motions to dismiss can be and are in fact used to test the sufficiency of a petition. Because granting such a motion with prejudice amounts to final agency action, however, the Model Rules provide that a ruling on such a motion shall be incorporated in a recommended order, and can be finally disposed of only by the Agency head. ' Fla. Admin. Code Model Rule 28-5 .205 . " Benton and Pfeiffer, Administrative Adjudication, supra, pg. 4-13 . 42 . DOAH Rule 22I-6 . 016 (3) , Florida Administrative Code, provides that whenever a motion recommends action by the agency head which is dispositive of a matter, it shall be incorporated in a recommended order. Therefore, should the hearing officer decide to grant the Department' s motion, a recommended order back to the Department would be required. 43. However, the DCA's motion to dismiss is ambiguous . The motion does not contain a prayer for relief. Nor does the motion state whether the Department seeks to have the City' s petition dismissed with prejudice or without prejudice. The City asserts that the ambiguity in the motion should be construed against the Department who drafted it and therefore should the hearing officer decide to enter a recommended order granting the Department's 17 motion, it should be without prejudice and with leave to amend. WHEREFORE, Petitioner City of Okeechobee respectfully requests that the hearing officer enter an order denying DCA' s motion to dismiss. Respectful) submitted on September F , 1992 by: (04, Michael Wm. Morell Attorney at Law 310 West College Avenue Tallahassee, Florida 32301-1406 (904 ) 425-8300 and John R. Cook City Attorney City of Okeechobee 202 N.W. 5th Avenue Okeechobee, Florida 34972 (813) 467-0297 Attorneys for City of Okeechobee CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has provided by hand delivery to Karen Brodeen, Assistant General Counsel, Department of Community Affairs, 2740 Centerview Drive, Tallahassee, Florida, 32399-2100 and by U. S . Mail to John D. Cassels, Jr. , County Attorney, Okeechobee County, 400 N.W. Second Street, P.O. Box 968, Okeechobee, FL 34973 on this Qk11 day of September, 1992 . WI Michael(art.;m. Morell 18 FILING AND ACKNOIW LEDGERIEN 1 FILED,on this dare,with the rtatfed Department Clerk, receipt of w tth is hereby acknowledged. STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAI Le .60.0," 8/3 Jan . Bass Dam CITY OF OKEECHOBEE, ) De tment Clerk ) Petitioner, ) ) vs . ) DCA Docket No. 91-NOI-4701-( I) DEPARTMENT OF COMMUNITY AFFAIRS, ) ) Respondent. ) ) PETITION FOR ADMINISTRATIVE HEARING Petitioner, CITY OF OKEECHOBEE, by and through its undersigned attorneys, hereby files this Petition for Administrative Hearing pursuant to Sections 163 . 3184 ( 9) (a) and 120 . 57 ( 1) , Florida Statutes, and Rule 9J-11 .012 (8) , Florida Administrative Code. In support of this Petition, Petitioner states as follows : A. BACKGROUND 1 . The agency involved in this proceeding is the Florida Department of Community Affairs (DCA) , 2740 Centerview Drive, Tallahassee, Florida 32399-2100 . The DCA docket number for this matter is 91-NOI-4701-(I) . The DCA is the designated state land planning agency, pursuant to Section 163 . 3164 ( 19) , Florida Statutes . 2 . The Petition is filed on behalf of the City of Okeechobee, Florida ( "Petitioner" or "City" ) , a Florida Municipal Corporation. Petitioner' s address is 55 Southeast 3rd Avenue, Okeechobee, Florida 34974 . 1 Exhibit "A" .•`r. STATE OF FLORIDA DEPARTMENT O_F COMMUNITY AFFAIRS 2 7 4 0 C E N T E R V I E W D R I V E • TALLAHASSEE , F L O R I D A 3 2 3 9 9 - 2 1 0 0 LINDA LOOMIS SHELLEY LAWTON CHILES Governor August 11, 1992 - Secretary Sharyn Smith, Director Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Dear Ms. Smith: The following petitions are forwarded to you for assignment of a hearing officer pursuant to Section 163. 3184 (9) , F.S. : City of Okeechobee v. Department of Community Affairs; Shirley Pinder v. Department of Community Affairs and Okeechobee County (original and amended petitions) ; and Florida Manufactured Housing Association. Inc. v, Department of Community Affairs. These petitions are all related as they all challenge the Department's notice to find the Okeechobee County plan to be in compliance, Docket No. 91-NOI-4701- I. By merely forwarding these petitions the Department does not assume responsibility for complying with filing requirements of the Division of Administrative Hearings and does not waive any right of the Department to raise objections to the petitions. Sincerely, Karen Brodeen Assistant General Counsel • 'KB/ths Enclosures cc: John Cassels, County Attorney Mike Morello (w/out attachments) Robert Kennedy (w/out attachments) Jack M. Skelding (w/out attachments) David D. Eastman (w/out attachments) Patrick Phelan (w/out attachments) Burton C. Connor (w/out attachments) John Cook (w/out attachments) EMERGENCY MANAGEMENT• HOUSING AND COMMUNITY DEVELOPMENT • RESOURCE PLANNING AND MANAGEMENT Exhibit "B"