STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTH FORT MYERS HOMEOWNERS )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-6436

)

DEPARTMENT OF ENVIRONMENTAL ) REGULATION and JRS EQUITIES, INC., ) d/b/a BRADLEY DEVELOPMENT COMPANY, )

)

Respondents. )

)

SUPPLEMENT TO RECOMMENDED ORDER

OF DISMISSAL DATED DECEMBER 12, 1991

Pursuant to notice, a formal hearing was conducted in this case on April 28, 1992, in Fort Myers, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Harold M. Stevens, Esquire

HAROLD M. STEVENS, P.A.

Post Office Drawer 1440 Fort Myers, Florida 33902

For Respondent Francine Ffolkes, Esquire DER: Assistant General Counsel

Dept. of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32399 2400

For Respondent Geri L. Waksler, Esquire Bradley: PEPER MARTIN JENSEN MAICHEL

& HETLAGE

2000 Main Street, Suite 600 Fort Myers, Florida 33901

STATEMENT OF THE ISSUES

Whether Petitioner North Fort Myers Homeowners Association, Inc. (Homeowners) participated in DOAH Case No. 91-6436 for an improper purpose.

PRELIMINARY STATEMENT

On December 12, 1991, William F. Quattlebaum, Hearing Officer, filed a Recommended Order of Dismissal which recommended that the Department of Environmental Regulation (the Department) dismiss Petitioner's pending challenge

to the Intent to Issue by the Department to Bradley Development Corporation (Bradley) for the construction of a wastewater collection system in North Fort Myers, Florida. The basis for the recommendation was that Homeowners' Amended Petition did not include a statement of all disputed issues of material fact, as required by Rule 22I-6.004(3)(d), or a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle Petitioner to relief, as required by Rule 22I-6.004(3)(e).

After the filing of the Recommended Order, Bradley filed a Motion for Determination of Improper Purposes and Award of Attorney's Fees and Costs within the Division of Administrative Hearings on December 23, 1991. The motion asserted that uncertainty existed as to whether the motion should be filed at the Division of Administrative Hearings or with the Clerk of Agency Proceedings at the Department.

Within the Division, the motion was treated as a separate proceeding in the same manner as Petitions for Attorney's Fees which are filed pursuant to Section 57.111, Florida Statutes. DOAH Case No. 91-8264F was assigned and the case went forward as an independent action. Likewise, the Department did not perceive the motion as an exception to the Recommended Order or as a request for remand to the Division for a supplemental hearing on the isolated issue of whether Petitioner participated in the proceeding for an improper purpose. As a result, the Department's Final Order adopting Hearing Officer Quattlebaum's Recommended Order in its entirety issued on January 22, 1992. This Order noted no exceptions were timely filed by the parties. If Respondent Bradley's motion had been considered as an exception and had been received by the agency on the same day it was filed with the Division of Administrative Hearings, it would have been timely made.

In spite of the procedural difficulties, all parties relied upon the Division's authority to conduct the proceeding in DOAH Case No. 91-8264F. All pleadings, exhibits and testimony heard in the case have since been transferred to DOAH Case No. 91-6436 for a Supplement to the Order of Dismissal dated December 12, 1991.

Prior to hearing, DOAH Case No. 91-8264F was transferred to Hearing Officer Veronica E. Donnelly to reduce travel expenses to the Southwest Florida area.

None of the parties objected to the change in hearing officers for the isolated issue in this supplemental proceeding.

On the day of hearing, Homeowners filed a Motion to Dismiss Claim. Ruling on the motion was reserved, pending receipt of responsive memoranda from Respondents. Once the memoranda were filed, the Motion to Dismiss Claim was denied, as reflected in the order entered prior to the filing of the Supplement to Recommended Order of Dismissal.

During hearing, Bradley presented oral argument in support of its Motion for Determination of Improper Purposes and Award of Attorney's Fees and Costs. The pleadings of record in DOAH Case No. 91-6436 were relied upon to supports its contention that the underlying Petition was filed for an improper purpose. Homeowners presented the testimony of the attorney who prepared the Petition and Amended Petition which were ultimately dismissed in this proceeding.

A transcript of the hearing was not ordered. The parties timely submitted Proposed Recommended Orders to the Hearing Officer. Rulings on the Proposed Findings of Fact are in the Appendix to the Supplement to Recommended Order of Dismissal.

FINDINGS OF FACT

1. On September 11, 1991, Homeowners filed its Petition for Administrative Hearing and Request to Consolidate with Administrative Hearing set for November 7, 1991.

   
   

2. The Petition alleged that Homeowners' interests would be adversely affected by Bradley's request for a permit for construction of a wastewater collection system that it planned to connect to Florida Cities Water Company's Sewage Treatment Plant. It was further alleged that Florida Cities current violations of federal water quality standards would increase as a result of such a connection.

   
   

3. Bradley responded to the Petition by filing a Motion to Dismiss for failure to State a Claim/Or in the Alternative Motion for Summary Judgment.

   
   

4. On October 31, 1991, Hearing Officer Quattlebaum granted Bradley's Motion to Dismiss for Failure to State a Claim. The Hearing Officer found that the Petition did not allege that the application for a wastewater collection system permit failed to comply with the agency's relevant rules and criteria. The Hearing Officer also ruled that the Petition did not identify when such criteria would be unmet by the project. Homeowners was given leave of ten days to file an Amended Petition.

   
   

5. Homeowners timely filed its Amended Petition for Administrative Hearing on November 13, 1991. This Amended Petition continued to focus upon whether Bradley's wastewater collection system should connect to Florida Cities Water Company's Sewage Treatment Plant and the federal water quality issue as it relates to discharge after treatment.

   
   

6. After Bradley filed its Motion to Dismiss the Amended Petition and Homeowners replied, Hearing Officer Quattlebaum entered a Recommended Order of Dismissal on December 12, 1991. The basis for the recommendation was that Homeowners had "failed to allege that the application for permit failed to comply with the relevant criteria as set forth in statute and rule which govern issuance of the permit."

   
   

7. The Temporary Operating Permit under which Florida Cities was operating expressly allowed Bradley's wastewater collection system to connect to the sewage treatment plant upon satisfaction of the Department's permitting requirements for such a collection system. Homeowners lost its opportunity to address whether such a connection was proper when it failed to timely challenge this Temporary Operating Permit.

   
   

8. The only agency action subject to challenge in this case was whether Bradley's application to construct the wastewater collection system complied with the Department's permitting requirements for the system. Florida Cities anticipated actions were irrelevant to this particular proceeding because final agency action had already been taken on the question of whether the connection could take place.

   
   

9. Throughout this proceeding, Homeowners failed to comprehend that it had waived its opportunity to pursue a challenge to the connection of Bradley's wastewater collection system to the sewage treatment plant when it did not timely challenge Florida Cities' Temporary Operating Permit.

10. The Order granting Bradley's Motion to Dismiss dated October 31, 1991, did not affirmatively set forth that the connection issue could not be pursued in DOAH Case No. 91-6436.

    
    

11. Homeowners' lack of comprehension on this issue remains evident in the Amended Petition, the Motion for Reconsideration filed after the Recommended Order of Dismissal, the Response to the Motion for Attorney's Fees and the testimony presented at hearing.

    
    

12. Lack of comprehension is a neutral condition which neither proves nor disproves that the Petition and Amended Petition were filed for improper purposes, as defined by Subsection 120.59(6)(e), Florida Statutes.

    
    

13. No direct evidence of Homeowners' participation in the proceeding for an improper purpose was established at hearing. The attorney for Homeowners at the time the Petition and Amended Petition were filed denied that Homeowners was motivated by an improper purpose. It was seeking to protect water quality in its locale and to assure the local sewer treatment system is adequate.

    
    

14. There was no evidence presented as to whether Homeowners has participated in other such proceedings involving Bradley and the same project for an improper purpose.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Sections 120.57(1) and 120.59(6), Florida Statutes.

    
    

16. Section 120.59(6), Florida Statutes, provides as follows, in pertinent part:

    
    

    1. In any proceeding pursuant to s. 120.57(1), a prevailing party shall be entitled to recover costs from the nonprevailing adverse party, and shall also be entitled to recover a reasonable attorney fee, as provided herein. The provi- sions of this subsection shall not apply to a prevailing or nonprevailing party that is an agency.

    2. The final order in a proceeding pursuant to s. 120.57(1) shall award costs and a reason- able attorney fee to the prevailing party only where the nonprevailing adverse party has been determined by the hearing officer to have parti-

       cipated in the proceeding for an improper purpose.

    3. In all proceedings pursuant to s. 120.57(1), the hearing officer shall determine whether any party, other than a party that is an agency, participated in the proceeding for an improper purpose as defined in this subsection... .

    4. In any proceeding in which the hearing officer determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall

       recommend the award of costs and attorney fees.

    5. For the purpose of this subsection:

       1. "Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase

          the cost of licensing or securing the approval of an activity.

       2. "Costs" shall have the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.

       3. "Nonprevailing adverse party" shall mean a party that has failed to have substantially change the outcome of the proposed or final agency action which is the subject of a proceeding... .

       
       

17. Homeowners is a nonprevailing adverse party as defined in Section 120.59(6), Florida Statutes, because it failed to substantially change the outcome of the proposed agency action which was the subject of this proceeding. The facts adduced at hearing, however, did not establish that Homeowners participated in the proceeding for an "improper purpose" as defined in Subsection 120.59(6), Florida Statutes.

    
    

18. At best, the facts showed Homeowners was unable to recognize that its point of entry for a challenge to the connection of the wastewater collection system to Florida Cities Sewer Treatment Plant was untimely. This may have occurred because logically a connection would not be made until after a collection system was built. The permitting sequence did not coincide with the construction sequence.

    
    

19. The absence of an affirmative ruling that Homeowners has waived its point of entry on the connection issue prior to the filing of the Amended Petition supports Homeowners' contention that it was attempting to protect the interests of its members when the Petition and Amended Petition were filed.

    
    

20. The legal theory offered by Bradley which asserts that the Petition and Amended Petition were frivolous and thereby were created for an improper purpose, is rejected by the Hearing Officer. The application of such a presumption is improper. The factual determination of whether Homeowners participated in the proceeding for an improper purpose was based upon the evidence presented.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department enter a Supplemental Final Order denying Bradley's request for attorney's fees and costs as Homeowners did not participate in this proceeding for an improper purpose as defined by Subsection 120.59(6)(e), Florida Statutes.

RECOMMENDED this 26th day of June, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6436

Homeowners' proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #6.

3. Accepted.

4. Accepted.

5. Accepted. See Preliminary Statement.

6. Accepted. See Preliminary Statement.

7. Accepted.

8. Rejected. Contrary to fact. See separate order on that issue.

9. Rejected. Pleading amended accordingly.

10. Accepted. See HO #13.

11. Rejected. Contrary to fact. See Preliminary Statement.

The Department's proposed findings of fact are addressed as follows:

1. Accepted. See Preliminary Statement.

2. Accepted. See Preliminary Statement.

3. Accepted. See Preliminary Statement.

4. Accepted. See Preliminary Statement.

5. Accepted.

6. Rejected. Contrary to fact. See HO #7 - HO #13.

Bradley's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #2.

3. Accepted. See HO #3.

4. Accepted. See HO #4.

5. Accepted. See HO #5.

6. Accepted. See HO #6.

7. Accepted. See HO #6.

8. Accepted. See Preliminary Statement.

9. Accepted. See Preliminary Statement.

10. Accepted. See HO #7 and HO #8.

11. Accept that Homeowners failed to present any justifiable issue of law or fact that could be heard in relation to this permit. See HO #7 - HO #9.

COPIES FURNISHED:

HAROLD M STEVENS ESQ PO DRAWER 1440

FT MYERS FL 33902

FRANCINE FFOLKES ESQ ASST GENERAL COUNSEL

DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

GERI L WAKSLER ESQ

PEPER MARTIN JENSEN MAICHEL & HETLAGE

2000 MAIN ST - STE 600 FT MYERS FL 33901

DANIEL H THOMPSON ESQ GENERAL COUNSEL

DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

CAROL BROWNER, SECRETARY

DEPARTMENT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006436

Orders for Case No: 91-006436