1992-08-28 City's Reply to DCAs Response to City's M/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 REPLY TO DCA's RESPONSE TO CITY'S
MOTION FOR ENTRY OF AN ORDER GRANTING THE CITY LEAVE TO AMEND
Petitioner, City of Okeechobee ( "City" ) , by and through its
attorneys, and pursuant to Rule 22I-6 . 016, Florida Administrative
Code, hereby files this reply to the Department of Community
Affair' s ( "DCA" or "Department" ) response to the City' s motion for
entry of an order granting the City leave to amend its petition.
In support of its reply the City states as follows :
1 . The City respectfully disagrees with the suggestion made
by DCA in its response that the City' s motion is somehow improper
because it did "not make clear what was requested to be amended"
and does not follow "common practice" because it was not
accompanied by the amended petition. DCA reviewed two versions of
the motion before it was filed. The City's motion is clear and
speaks for itself. Furthermore, the City is not required by either
DCA's notion of "common practice" or the rules of the Division of
Administrative Hearings ( "DOAH" or "Division" ) to disclose what the
1
City may choose to plead if allowed to file an amended petition.
The City also objects to the Department's attempt in its response
to "clarify" the substance of telephone conversations between the
Department and the undersigned. It is a waste of both this
tribunal ' s and the party litigants ' time and resources for the DCA
to attempt to "clarify" the substance of telephone conversations
through the filing of pleadings with a DOAH hearing officer who was
not even a participant in the telephone conversations which the
Department seeks to clarify.' Finally, the City respectfully
suggests that there is no reasonable basis in fact or law upon
which the DCA or its counsel should "assume" anything about what
the City may or may not decide to include within an amended
petition should the hearing officer grant the City' s motion and
enter an order granting the City leave to amend.
2 . The last telephone conference that the undersigned had
with counsel for DCA was on August 18, 1992 . Shortly before 5 : 00
p.m. that day counsel for DCA returned the undersigned' s earlier
' In this regard, the City believes it is unfortunate that
counsel for DCA has chosen to file such a misdirected response on
behalf of the Department rather than simply call the City' s
undersigned attorney in an effort to seek a more efficient and
amiable resolution of this matter. The City further believes that
had counsel for DCA chosen to exercise her case management
responsibilities more tactfully, the City might not have even had
to file this reply to the Department' s response. However, since
counsel for DCA has chosen to include factual allegations in the
Department' s response which go far beyond those required or
contemplated under DOAH Rule 22I-6 . 016, F.A.C. , the City hereby
files this reply in good faith so as to protect its interests .
Principles of fundamental fairness suggest that the City be allowed
to present the hearing officer with the facts and recollections of
all parties of record and their counsel prior to his making a
decision on the merits with regard to the City' s motion for entry
of an order granting the City leave to amend its petition.
2
t .
placed call to her office concerning another proceeding unrelated
to the above-referenced case. At the end of the telephone
conversation, counsel for DCA initiated a discussion concerning the
above-referenced case in general and the Department ' s interest in
having Okeechobee County ( "County" ) joined as a party respondent in
the above-referenced case in particular. The undersigned recalls
that there were four references made to the City' s petition during
that discussion.
3. The first reference to the City's petition was a statement
made by counsel for DCA that the Department had forwarded to DOAH
only the original of the City's petition and not the original and
one copy of the petition as required by DOAH Rule 22I-6 . 003,
Florida Administrative Code. The undersigned responded by stating
that all the DCA needed to do was call the undersigned and request
that he provide the Department with a copy of the City' s petition
so that it could be forwarded to DOAH with the original .
4 . The second reference to the City's petition was a
statement made by counsel for DCA 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 within 15 days of
service of the order of dismissal as is provided for in DCA Rule
9J-11 . 012 (8) (b) , Florida Administrative Code.
3
e .
5 . The third reference to the City's petition was a statement
made by counsel for DCA that even though the Department may have
found the City's petition sufficient as a matter of law under DCA' 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. The undersigned responded to this reference by stating: (a)
the City's petition satisfies all of the relevant filing
prerequisites contained in Sections 163. 3184(9) (a) and 120 .57 ( 1) ,
Florida Statutes, and Rule 9J-11 . 012(8) , Florida Administrative
Code; (b) sections 120. 57 ( 1) and 163. 3184(9) , Florida Statutes, and
DCA' s Rule 9J-11 .012(8) do not require that a petitioner join the
local government as a party respondent; (c) the City's petition
challenges DCA' s preliminary agency action in issuing a notice of
intent to find the County's plan "in compliance" ; (d) the County' s
action in adopting its comprehensive plan is not preliminary agency
action subject to challenge under the Administrative Procedures Act
( "APA" ) in that the County had taken final local governmental
action and adopted a comprehensive plan which is in effect and
legally operative; (e) Counties are agencies under Section
120.52( 1) (c) , Florida Statutes, only to the extent that they have
been expressly made subject to the APA by general law and since
here the relevant statute, Section 163. 3184 (9) (a) , Florida
Statutes, 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) challenges, the City' s petition
4
4
properly joined only DCA as the respondent; ( f) since the City' s
petition satisfies the statutory prerequisites contained in Chapter
120 and Chapter 163, Part II, Florida Statutes, DOAH jurisdiction
in this case has attached as a matter of statutory right and
therefore DCA should not attempt to countermand the City' s
statutory right to challenge the Department ' s preliminary agency
action by filing such a motion which ignores well established
principles of access to these types of proceedings; (g) by
forwarding the City's petition to DOAH, the Department had waived
any right it may have had to attack the petition as insufficient
for failure to join an indispensable party; (h) that DOAH Rule 22I-
6 . 010, Florida Administrative Code, provides that the County could
become a party by petitioning to intervene if it desired to protect
its interests; and (i) 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.
6 . The undersigned further recalls that after he listened to
and responded to counsel for DCA' s concerns as specified in ¶ ' s 3,
4 and 5 above, counsel for DCA suggested that the discussion end
due to the lateness of the hour and the pending close of the
business day. The undersigned agreed and suggested that counsel
for DCA call the undersigned back on the morning of April 19, 1992
if she desired to continue the discussion in order to explore a
mutually acceptable resolution. Counsel for DCA agreed to do so
5
l .
and the conversation ended. Counsel for DCA did not call the
undersigned back the next morning.
7 . On August 19, 1992, the undersigned placed two telephone
calls to the office of DCA' s counsel and left messages for her to
return the undersigned's calls regarding the above-referenced case.
When counsel for DCA did not return the undersigned' s calls, he
transmitted to her by facsimile a copy of the first draft of the
City' s motion for entry of an order granting the City leave to
amend its petition. (A copy of the facsimile cover sheet of
transmittal and the draft of the City's motion for entry of an
order which was provided to counsel for DCA is attached to this
reply as Exhibit "A" and is incorporated by reference herein. ) A
message on the facsimile cover sheet of transmittal requested that
counsel for DCA inform the undersigned as to what the Department ' s
position on the City' s motion for entry of an order would be.
Paragraph 15 of the draft motion provided to counsel for DCA stated
the facts contained in Q7 of this reply.
8. On the morning of August 20, 1992, counsel for DCA left a
message on the undersigned' s voice mail box in which she asked the
undersigned to delete the references to the undersigned' s August
19, 1992 telephone calls and facsimile transmission contained in
1115 of the draft and merely state that the undersigned was
authorized to represent that DCA joined in the City' s motion for
entry of an order granting the City leave to amend.
6
.
9 . After making the requested changes to 1[15 and prior to
filing the City' s motion, the undersigned transmitted to Counsel
for DCA by facsimile and U.S. Mail a copy of the final version of
the City' s motion for entry of an order granting the City leave to
amend its petition. (A copy of the facsimile cover sheet of
transmittal and the final version of the City' s motion for entry of
an order [without exhibits] , which was provided to counsel for DCA
is attached to this reply as Exhibit "B" and is incorporated by
reference herein. ) The cover sheet of transmittal thanked counsel
for DCA for joining in the motion and asked her to call the
undersigned if she or the Department had any concerns with the
final version of the City's motion.
10 . The title of both the draft and final versions of the
City' s motion provided to counsel for DCA prior to filing was
identical : "Petitioner City of Okeechobee' s Motion for Entry of An
Order Granting Petitioner Leave to Amend its Petition. "
11 . The prayer for relief in both the draft and final
versions of the City' s motion provided to counsel for DCA prior to
filing was identical and asked for specific relief by including the
following language that should have dispelled any notion that the
Department had that the City would be filing an amended petition
with the motion: " . . .direct that the petitioner file the original
and one copy of its amended petition with the DOAH clerk within 10
days after the entry of the hearing officer's order granting this
motion" .
7
12 . There is no reasonable basis in law, fact or the DCA's
notion of "common practice" for the Department to have "assumed"
anything about what the City may or may not decide to include
within an amended petition should the hearing officer grant the
City's motion and enter an order granting the City leave to amend.
The City's motion is clear and speaks for itself. The City
courteously provided two drafts of the motion to the Department for
review prior to filing. In providing counsel for DCA with two
copies of the motion in advance of filing, the undersigned attorney
for the City went beyond the requirement of DOAH Rule 22I-6 . 016(2) ,
Florida Administrative Code, and gave the Department every
opportunity to state whether it had any objection to the motion.
The Department responded by requesting that ¶15 of the draft be
changed. The undersigned changed ¶15 of the draft in response to
the Department' s request.
13 . The real issue concerning the City' s motion is whether
the entry of an order granting the City leave to amend its petition
would prejudice the DCA and is in keeping with the general rule
which liberally allows amendment of pleadings . The City believes
that the granting of its motion would not prejudice the Department
and is in keeping with the general rule of liberally allowing
amendment of pleadings.
14 . The issue with regard to the City' s motion is not "common
practice" , what transpired in telephone conversations between
counsel, or who may or may not enter into this case. DCA' s
response is misdirected in that it attempts to shift the focus away
8
f .
from the real issue. If the real issue were what was said between
or done by counsel, a good case can be made that what probably
happened here is that counsel for DCA never carefully read the
draft version of the motion provided her by the City before she
left a message on the undersigned's voice mail box in which she
authorized the undersigned to represent that DCA joined in the
City' s motion for entry of an order granting the City leave to
amend. If that is indeed what happened (and the undersigned can
understand how counsel for DCA' s considerable caseload may have
contributed to such an oversight) all she had to do was return the
courtesy of a call to the undersigned in an effort to work it out.
Counsel for DCA should not have attempted to cure such an oversight
by filing a response that is little more than a revisionist history
of events leading up to the filing of the City' s motion.
15 . By filing a copy of this reply to DCA' s response to the
City' s motion for entry of an order for leave to amend, the City
does not waive its right pursuant to Rule 22I-6 .016 , Florida
Administrative Code, to file any other motions and/or responses,
either related to or independent of, motion' s which have been or
may be filed by the DCA in the above-referenced case.
WHEREFORE, Petitioner City of Okeechobee requests that the
hearing officer enter an order in the above-referenced case which:
( 1) grants petitioner' s motion for entry of any order granting
petitioner leave to amend its petition filed on August 11, 1992
with DOAH; (2) directs that the petitioner file the original and
one copy of its amended petition with the DOAH clerk within 10 days
9
after the entry of the hearing officer' s order granting this
motion; ( 3) directs that the petitioner serve a copy of said
petition to the DCA and (4 ) provides that respondent DCA may file
an answer to the amended petition and may file motions in
opposition to the amended petition pursuant to DOAH Rule 22I-
6 . 004 (5) , Florida Administrative Code, but shall do so within
twenty (20) days of the filing of the City' s amended petition.
Respectfully submitted on
Augusta$ , 1992 by:
44,4t26J4110
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
sent by U.S. Mail to Karen Brodeen, Assistant General Counsel,
Department of Community Affairs, 2740 Centerview Drive,
Tallahassee, Florida, 32399-2100 and John D. Cassels, Jr. , County
Attorney, Okeechobee County, 400 N.W. Second Street, P.O. Box 968,
Okeechobee, FL 34973 on this ),S+11 day of August, 1992 .
'
Michael Wm. Morell
10
•
Michael Wm. Morell
Attorney at Law
310 West College Avenue
Tallahassee, Florida 32301-1406
904/ 425-8300 OFFICE
904/ 425-8301 FAX
TELECOPY TRANSMITTAL
NUMBER OF PAGES (INCLUDING COVER PAGE) : 7
To: bren Siodkev
FROM: itt Mdrel(
DATE: MO- TIME: Y :C.,00,(•
MESSAGE:
1
I S P a'1 0 6 4 4 (ke ccA/ rA2�f /04140r o oU 146
Let Pe etiL4-ruin pO ikA 11
IF ANY PROBLEMS, CALL 904/425-8300. RETURN FAX TO 904/425-8301.
Exhibit "A" "`
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF OKEECHOBEE, ) D Iii EF if
Petitioner, )
)
vs . ) DOAH Case No. 92-4909GM
)
) DCA Docket
No. 91-NOI-4701-(I)
)
DEPARTMENT OF COMMUNITY AFFAIRS, )
Respondent. )
)
PETITIONER CITY OF OKEECHOBEE'S MOTION FOR ENTRY OF AN ORDER
GRANTING PETITIONER LEAVE TO AMEND ITS PETITION
Petitioner, CITY OF OKEECHOBEE ( "City" ) , by and through its
undersigned attorneys, hereby files this motion for entry of an
order granting petitioner leave to amend its petition in the above-
referenced case pursuant to Sections 120 . 57 ( 1) , Florida Statutes,
and Rules 22I-6 . 004 and 22I-6 . 016, Florida Administrative Code. In
support of its motion the City states as follows :
1 . On July 12, 1992, the Department of Community Affairs
( "DCA" or "Department" ) published in the Okeechobee News a notice
of intent to find Okeechobee County's ( "County" ) Comprehensive Plan
in compliance pursuant to Section 163 . 3184, Florida Statutes . (A
copy of the Department' s notice is attached as Exhibit "A" and is
incorporated by reference herein. )
2 . On August 3, 1992, the City timely filed a petition for
administrative hearing with the DCA pursuant to Sections
163 . 3184 ( 9 ) and 120 . 57, Florida Statutes, and Rule 9J-11 . 012 (8) ,
1
D
Florida Administrative Code. In its petition the City challenges
the Department' s determination that the County' s plan is in
compliance. (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
"B" and is incorporated by reference herein. )
3. DCA Rule 9J-11 . 012( 8) , Florida Administrative Code,
requires that a petitioner provide the Department with the original
of the petition. The rule does not require that a petitioner
provide the Department with a copy of the petition. Therefore,
when the City filed its Petition with the Department on August 3,
1992 it filed only the original .
4 . On August 11, 1992, DCA forwarded the original of the
petition to the Director of the Division of Administrative Hearings
( "DOAH" or "Division" ) for assignment of a hearing officer. (A copy
of DCA' s cover letter of transmittal forwarding the petition to
DOAH is attached as Exhibit "C" and is incorporated by reference
herein. ) At the time that DCA forwarded the City' s petition to the
Division it also forwarded an amended petition in the case of
Shirley Pinder v. DCA, DOAH Case No. , and a petition in the
case of Florida Manufactured Housing Association, Inc . v. DCA, DOAH
Case No. .
5 . On August 15, 1992, the undersigned attorney received a
telephone call from the office of counsel for DCA requesting
whether the undersigned would oppose DCA if it filed a motion to
counsel to consolidate the City' s above-referenced case with the
2
two cases referred to in ¶4 above.
NM V
6 . On August 17, 1992, the undersigned received a notice from
DOAH dated August 14, 1992 . (A copy of the DOAH notice is attached
as Exhibit "D" and is incorporated by reference herein. ) The
notice from DOAH indicated that the City' s petition which DCA had
forwarded to DOAH was filed at the Division on August 11, 1992 .
7 . On August 18, 1992, counsel for DCA informed the
undersigned during a telephone conversation that the Department
forwarded only the original petition to DOAH and not the original
and one copy of the petition as required by DOAH Rule 22I-6 . 003,
Florida Administrative Code.
8. On August 19, 1992, the undersigned informed the Office of
DCA counsel that the City of Okeechobee opposes the Department's
motion to consolidate.
9 . DOAH Rule 22I-6 .004(5) , Florida Administrative Code,
provides that a respondent may file an answer and motions in
opposition to a petition but shall do so within 20 days of the
filing of the petition. Therefore, if DCA chooses to file an
answer and/or motions in opposition to the City' s petition filed
with the Division on August 11, 1992, said answer and/or motions
must be filed on or before August 31, 1992 .
10 . As of the time of filing of this motion, the computerized
docketing system in the DOAH clerk' s office did not indicate that
DCA had filed any answer and/or motion in opposition to the City' s
petition filed with the Division on August 11, 1992 .
3
N 11
11 . As of the time of filing of this motion, the computerized
docketing system in the DOAH clerk's office did not indicate that
the Hearing Officer assigned to this case had filed with the Clerk
of the Division any order of assignment and initial order or any
other order which directs counsel for the parties to schedule a
telephone conference with the hearing officer to coordinate the
scheduling of the final hearing and other administrative details
customarily involved in proceedings of this type.
12 . DOAH Rule 22I-6 . 004 (5) , Florida Administrative Code,
provides that a petitioner may amend its petition upon order of the
Hearing Officer. The City desires to amend its petition pursuant
to Rule 22I-6 .004(5) , F.A.C.
13 . The City believes that the entry of an order granting the
City leave to amend its petition would not prejudice the DCA and is
in keeping with the general rule which liberally allows amendment
of pleadings . See, i .e. , Araujo-Sanchez v. Amoon, 513 So. 2d 1307
(Fla. 3d DCA 1987 ) ; Charles A. Alario, Sr. and Real Estate Services
Unlimited, Inc . v. Department of Professional Regulation, Division
of Real Estate, DOAH Case No. 87-4093 F (FALR Volume 10, No. 8, Pg.
2134, 2143) (Final Order entered on 3/22/88 by Hearing Officer Mary
Clark) .
14 . The City further believes that the entry of an order in
this case which permits the City to amend its petition, schedules
the filing of the City's amended petition and recognizes the DCA' s
right to timely file an answer and/or motions in opposition to said
amended petition pursuant to Rule 22I-6 . 004 (5) , is consistent with
4
D
principles of both state agency and local governmental economy and
efficiency in a period in which both DOAH, DCA and the City must
fulfill their governmental responsibilities with scarce budgetary
resources .
15 . The undersigned has attempted to contact counsel for DCA
in an effort to confer with her about this motion but was unable to
do so. The undersigned placed two calls to DCA's counsel on August
19, 1992 . After being informed by the office of said DCA counsel
that she was in meetings, counsel for the City left a message for
her to return his calls . When counsel for DCA did not return the
undersigned' s call, he faxed her a copy of a draft of this motion.
WHEREFORE, Petitioner City of Okeechobee requests that the
hearing officer enter an order in the above-referenced case which:
( 1) grants petitioner leave to amend its petition filed on August
3, 1992 with DCA and on August 11, 1992 with DOAH; (2 ) directs that
the petitioner file the original and one copy of its amended
petition with the DOAH clerk within 10 days after the entry of the
hearing officer' s order granting this motion; and ( 3) provides that
respondent DCA may file an answer and may file motions in
opposition to the amended petition, but shall do so within twenty
(20) days of the filing of the City' s amended petition.
Respectfully submitted on
August , 1992 by:
Michael Wm. Morell
Attorney at Law
310 West College Avenue
Tallahassee, Florida 32301-1406
( 904 ) 425-8300
5
and ii 12 W V
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
been forwarded by U.S. Mail to Karen Brodeen, Assistant General
Counsel, Department of Community Affairs, 2740 Centerview Drive,
Tallahassee, Florida, 32399-2100 and by facsimile transmission and
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 day of August, 1992 .
Michael Wm. Morell
6
Michael Wm. Morell
Attorney at Law
310 West College Avenue
Tallahassee, Florida 32301
904/ 425-8300 OFFICE
904/ 425-8301 FAX
TELECOPY TRANSMITTAL
NUMBER OF PAGES (INCLUDING COVER PAGE) : 6
: Karen Brodeen, Assistant General Counsel
TO
FROM: Mike Morell
DATE: 8/20/92 TIME: 9:3° a.m.
MESSAGE: PLEASE DELIVER TO KAREN BRODEEN ASAP!
Karen.
Thank you for agreeing to join in this motion. Attached is a
revised version of the motion which I intend to file. Call me if
you have any concerns. Mike Morell
IF ANY PROBLEMS, CALL 904/425-8300. RETURN FAX TO 904/425-8301.
The original of this facsimile transmitted document is
being sent to you by U.S. Mail for your records .
8i
Exhibit "B"
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. )
)
PETITIONER CITY OF OKEECHOBEE'S MOTION FOR ENTRY OF AN ORDER
GRANTING PETITIONER LEAVE TO AMEND ITS PETITION
Petitioner, CITY OF OKEECHOBEE ( "City" ) , by and through its
undersigned attorneys, and pursuant to Sections 120.57( 1) , Florida
Statutes, and Rules 22I-6 . 004 and 22I-6 . 016, Florida Administrative
Code, hereby files this motion for entry of an order granting
petitioner leave to amend its petition in the above-referenced
case. In support of its motion the City states as follows:
1. On July 12, 1992, the Department of Community Affairs
( "DCA" or "Department" ) published in the Okeechobee News a notice
of intent to find the Okeechobee County ( "County" ) Comprehensive
Plan in compliance pursuant to Section 163 . 3184, Florida Statutes .
(A copy of the Department's notice is attached as Exhibit "A" and
is incorporated by reference herein. )
2. On August 3, 1992, the City timely filed a petition for
administrative hearing with the DCA pursuant to Sections 120 .57 ( 1)
and 163. 3184(9) (a) , Florida Statutes, and Rule 9J-11 . 012(8) ,
1
Florida Administrative Code. In its petition the City challenges
the Department's determination that the County' s plan is in
compliance. (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
"B" and is incorporated by reference herein. )
3 . Rule 9J-11 . 012(8) , Florida Administrative Code, requires
that a petitioner provide the DCA with the original of the
petition. The rule does not require that a petitioner provide the
Department with a copy of the petition. Therefore, when the City
filed its petition with the DCA on August 3, 1992 it filed only the
original .
4 . On August 11, 1992, DCA forwarded the City's petition to
the Director of the Division of Administrative Hearings ( "DOAH" or
"Division" ) for assignment of a hearing officer. (A copy of DCA' s
cover letter of transmittal forwarding the petition to DOAH is
attached as Exhibit "C" and is incorporated by reference herein. )
At the same time that DCA forwarded the City's petition to the
Division it also forwarded petitions in two other cases which
challenge the Department's notice to find the County's plan in
compliance: an original and amended petition in the case of
Shirley Pinder v. DCA and Okeechobee County, DOAH Case No.
and a petition in the case of Florida Manufactured Housing
Association, Inc. and Ted Kelchner v. DCA, DOAH Case No.
2
6 .
5 . On August 15, 1992, the undersigned received a telephone
call from the Office of DCA counsel requesting whether the City
would object if DCA filed a motion to consolidate the City's above-
referenced case with the two cases referred to in 14 above.
6 . On August 17, 1992, the undersigned received a notice from
DOAH dated August 14, 1992 . (A copy of the DOAH notice is attached
as Exhibit "D" and is incorporated by reference herein. ) The
notice from DOAH indicated that the City's petition which DCA had
forwarded to DOAH was filed at the Division on August 11, 1992 .
7 . On August 18, 1992, counsel for DCA informed the
undersigned that the Department forwarded only the original
petition to DOAH and not the original and one copy of the petition
as required by DOAH Rule 22I-6 . 003(2) , Florida Administrative Code.
8. On August 19, 1992, the undersigned informed the Office of
DCA counsel that the City would object if the DCA filed a motion to
consolidate the three cases.
9 . At the time of the filing of this motion, the computerized
docketing system in the DOAH clerk's office did not indicate that
DCA had filed any answer and/or motion in opposition to the City' s
petition filed with the Division on August 11, 1992 .
10. DOAH Rule 22I-6 . 004(4) , Florida Administrative Code,
provides that a petitioner may amend its petition only upon order
of the hearing officer. The City desires to amend its petition.
3
11 . The City believes that the entry of an order granting the
City leave to amend its petition would not prejudice the DCA and is
in keeping with the general rule which liberally allows amendment
of pleadings . See, i .e. , Araulo-Sanchez v. Amoon, 513 So. 2d 1307
(Fla. 3d DCA 1987) ; Charles A. Alario, Sr. and Real Estate Services
Unlimited, Inc. v. Department of Professional Regulation, Division
of Real Estate, DOAH Case No. 87-4093 F (FALR Volume 10, No. 8, Pg.
2134, 2143) (Final Order entered on 3/22/88 by Hearing Officer Mary
Clark) .
12 . The City further believes that the entry of an order
granting the City leave to amend its petition, scheduling the
filing of the City's amended petition and recognizing the DCA's
right to timely file an answer and/or motions in opposition to said
amended petition pursuant to Rule 22I-6 . 004(5) , would be compatible
with principles of both state administrative agency and local
governmental economy and efficiency in a period in which DOAH, DCA
and the City must fulfill their respective adjudicatory, planning
and governmental responsibilities with scarce budgetary resources .
13. Counsel for the DCA has informed the undersigned that he
is authorized to represent that the Department joins in the filing
of this motion.
WHEREFORE, Petitioner City of Okeechobee requests that the
hearing officer enter an order in the above-referenced case which:
( 1) grants petitioner's motion for entry of any order granting
petitioner leave to amend its petition filed on August 11, 1992
with DOAH; (2) directs that the petitioner file the original and
4
one copy of its amended petition with the DOAH clerk within 10 days
after the entry of the hearing officer's order granting this
motion; (3) directs that the petitioner serve a copy of said
petition to the DCA and (4) provides that respondent DCA may file
an answer to the amended petition and may file motions in
opposition to the amended petition pursuant to DOAH Rule 22I-
6 . 004 (5) , Florida Administrative Code, but shall do so within
twenty (20) days of the filing of the City's amended petition.
Respectfully submitted on
Augusta() , 1992 by:
kdia 9 1..
Michael6Wm. 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
sent by facsimile transmission and U.S. Mail to Karen Brodeen,
Assistant General Counsel, Department of Community Affairs, 2740
Centerview Drive, Tallahassee, Florida, 32399-2100 and John D.
Cassels, Jr. , County Attorney, Okeechobee County, 400 N.W. Second
Street, P.O. Box 968, Okeechobee, FL 34973 on this day of
August, 1992 .
Lit OfQ rr ,, h ,,
(t-I�41Y
Michael Wm. Morell
5