1992-08-20 City's M/Amend Pet. •r
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
1
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 ¶4 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. , 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) .
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
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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
Augusta0 , 1992 by:
è)ttdt,19 &1Jt441d9
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 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 .
140 (1/14.
Michael Wm. Morell
5
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
NOTICE OF INTENT TO FIND THE
OKEECHOBEE COUNTY
COMPREHENSIVE PLAN IN COMPLIANCE
DOCKET NO. 91-NOI-4701- (I)
The Department gives notice of its intent to find the Oke-
echobee County Comprehensive Plan IN COMPLIANCE pursuant to
Section 163. 3184, F.S.
The adopted Okeechobee County Comprehensive Plan and the
Department' s Objections, Recommendations, and Comments Report,
are available for public inspection Monday through Friday, except
for legal holidays, during normal business hours, at the Okeecho-
bee County Planning and Development Department, 499 N.W. 5th
Avenue, Okeechobee, Florida 34972, and at the Board of County
Commissioners Office, 304 N.W. 2nd Street, Room 106, Okeechobee,
Florida 34972.
Any affected person, as defined in Section 163. 3184 , F.S. ,
has a right to petition for an administrative hearing to chal-
lenge the proposed agency determination that the Okeechobee
County Comprehensive Plan is In Compliance, as defined in Subsec-
tion 163. 3184 (1) , F. S. The petition must be filed within
twenty-one (21) days after publication of this notice, and must
' include all of the information and contents described in Rule
9J-11. 012 (8) , F.A.C. The petition shall be filed with the Agency
Clerk, Department of Community Affairs, 2740 Centerview Drive,
Tallahassee, Florida 32399-2100, and a copy mailed or delivered
to the local government. Failure to timely file a petition shall
constitute a waiver of any right to request an administrative
proceeding as a petitioner under Section 120. 57, F. S. If a
petition is filed, the purpose of the administrative hearing will
be to present evidence and testimony and forward a recommended
order to the Department. If no petition is filed, this Notice of
Intent shall become final agency action.
If a petition is filed, other affected persons may petition
for leave to intervene in the proceeding. A petition for inter-
vention must be filed at least five (5) days before the final
hearing and must include all of the information and contents
described in Rule 221-6. 010, F.A.C. A petition for leave to
intervene shall be filed at the Division of Administrative
Hearings, Department of Administration, 1230 Apalachee Parkway,
Tallahassee, Florida 32399-1550. Failure to petition to inter-
vene within the allowed time frame constitutes a waiver of any
right such a person has to request a hearing under Section
120. 57 , F.S. , or to participate in the administrative hearing.
(1141/1L/5A::1
Charles G. Pattison, Director
Department of Community Affairs
Division of Resource Planning
and Management
2740 Centerview Drive
Tallahassee, Florida 32399-2100
Exhibit "A"
MUG AND ACKNOWLEDGEMENT
FILED, on this date, with the deSignabed
Department Clerk. re:eipt 01 w lith
Is hereby acknowledged.
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAI K f7 gl3
Jan . Bass Dims
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 "B"
• 1.
4 ,,r.._ S1•
WLTP
STATE OF FLORIDA
DEPARTMENT OF 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
Goy August 11, 1992retary
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 Countv (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-N0I-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,
76:4'41-"Irt-i7-1"%
•
Karen Brodeen
Assistant General Counsel
'KB/ths
Enclosures
cc: John Cassels, County Attorney
Mike Morell (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 "C"
STATE OF FLORIDA
•
I/ 1 4/ '2 DIVISION OF ADMINISTRATIVE HEARINGS
CASE NO 92-0(149090 1 DESOTO BUILDING. 1230 APALACHEE PARKWAY
HEARING 91-!I�T- TALLAHASSEE.FLORIDA 32399-1550
OFFICER: t c•14`+Y BAR rtN
DATE OF FILING: C / tt/a2
RE: i :Y )F•?CEECHOEEE
U3 OcPI )F COMi•.1_NITY AFFA!RI
TO:
H I CHAE4_ W. f1CRELL ES)U I RE
The above-styled matter is now before the Division of Administrative 310 4 CCLLE'GE i4VE
Hearings.The above hearing officer has been assigned to the case.Notice TALL AHA3'EE =L 32301-1406
of hearing will be provided to parties or their attorney of record.Should you
desire to contact him/her you may do so at the Division, DeSoto Building,
1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; (904)
488-9675, Suncom 278-9675.
NOTE: File the original and one copy of all documents with the Division,
and provide a copy to the other party(parties).
ANN COLE, Clerk of the Division. � i III��►�nuitt��
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