STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY ) AFFAIRS and JACK DAVID KELLY, )

)

Petitioners, )

)

vs. ) Case No. 97-2835GM

)

ESCAMBIA COUNTY, )

)

Respondent, )

)

and )

)

HOME BUILDERS OF WEST )

FLORIDA, INC., )

)

Intervenor. )

)

FINAL ORDER

This cause came before the undersigned on a Verified Second Motion for Sanctions and Dismissal filed by Respondent, Escambia County (County). The motion is supported by Intervenor, Home Builders of West Florida, Inc. By the motion, the County seeks the imposition of sanctions, including the dismissal of the second Verified Petition for Formal Administrative Hearing filed by Petitioner, Jack David Kelly (Kelly), for his willful failure to comply with an order requiring him to submit to a deposition. The verified allegations in the motion have not been contradicted. For the following reasons, the motion is granted.

The facts giving rise to this controversy are undisputed. On January 25, 1996, the County adopted a new Land Development

Code by Ordinance Number 96-3. Although not contemplated by the statute under which the Code was adopted, on August 26, 1996, Petitioner, Department of Community Affairs (DCA), notified the County by letter of various "concerns" with some of the proposed regulations. On January 18, 1997, or within twelve months after the adoption of the ordinance, Kelly filed with the County a Verified Petition for Formal Administrative Hearing under Section 163.3213, Florida Statutes (Supp. 1996), challenging the consistency of the land development regulations adopted on January 25, 1996, with the County's comprehensive plan. The allegations were virtually identical to the "concerns" expressed by the DCA in its letter of August 26, 1996. On February 18, 1997, the County filed a Response to Kelly's petition. The County also challenged the standing of Kelly to bring this action. On March 18, 1997, Kelly filed with the DCA a second Verified Petition for Formal Administrative Hearing re-alleging the same substantive allegations. The County then moved to dismiss the second petition on the grounds that Kelly is not a substantially affected person and that the petition does not comply with the provisions of Section 163.3213(3), Florida Statutes (Supp. 1996). After reviewing Kelly's petition, which had parroted its earlier "concerns," on May 19, 1997, the DCA issued its Determination of Inconsistency, determining that certain regulations were inconsistent with the comprehensive plan. The matter was then forwarded to the Division of

Administrative Hearings to be set for hearing.

At the request of the County and Intervenor, a preliminary hearing was scheduled on October 16, 1997, to resolve the issue of Kelly's standing. As a part of that process, on September 29, 1997, the County properly noticed Kelly for a deposition on October 8, 1997, at the firm of Emmanuel, Sheppard & Condon in Pensacola, Florida. On October 3, 1997, Kelly served an "Objection to Notice of Deposition Duces Tecum" in which he advised that "the date, time and place of the . . . deposition in [sic] not acceptable" on account of prior "out-of-town" business commitments. Also, he requested that the deposition be held at "a neutral site" rather than the named law firm. The County represents, without contradiction, that it also received a voice mail message from Kelly indicating his availability for deposition on October 10, 13, 14, or 15 at the same time of day.

In an effort to accommodate Kelly's schedule and other objections, on October 6, 1997, the County issued an Amended Notice of Taking Deposition Duces Tecum rescheduling the deposition for 11:00 a.m., October 15, 1997, at the offices of a local court reporting firm. This date comported with the dates previously suggested by Kelly. On October 11, 1997, Kelly served a paper styled as "Reply to Notice of Taking Deposition Deuces [sic] Tecum, October 15, 1997 at Wierzrieki & Stephenson Court Reporters and Motion for Hearing on Same with Oral Argument." In the reply, Kelly stated, without explication, that the notice

itself, as well as the date and location of the deposition, were "unacceptable." The "reply" was never called up for hearing, and Kelly failed to appear at the scheduled deposition. Thereafter, the County immediately filed a Motion to Compel Petitioner to Appear for Deposition, to Continue the Proceedings, and for Sanctions.

By order dated October 21, 1997, the undersigned granted the County's Motion to Compel Petitioner to Appear for Deposition.

Recognizing that Kelly is a lay person, the order reminded Kelly "that attendance at a properly noticed deposition is required," and that a failure to do so could result in "appropriate sanctions," including the striking of pleadings, imposition of attorney's fees and costs, or dismissal of his petition. The order further provided as follows:

In [re]scheduling the deposition, the County shall make a good faith effort to contact Kelly and determine the dates on which he is available for deposition. The County shall then renotice the deposition for the mutually acceptable date. In the event Kelly fails to cooperate with, or respond to, the County's efforts to ascertain mutually acceptable dates, the County may, upon reasonable notice, reschedule the deposition to a date acceptable to its counsel.

(Order, page 3)

Finally, the order reminded Kelly that the filing of an objection (motion for protective order) does not operate as an automatic stay of the deposition and that he bore the responsibility of contacting opposing counsel and the undersigned to arrange a hearing on his objection prior to the scheduled

deposition.

After Kelly filed a document styled as "Motion to Dismiss and Squash [sic]," which was treated as a motion for reconsideration, the undersigned reaffirmed the order in all respects by a second order entered on November 5, 1997. The second order again reminded Kelly of his obligation to attend a properly noticed deposition.

In an effort to comply with the undersigned's order of October 21, 1997, the County, through its counsel, contacted Kelly by letter or telephone on at least eight occasions, asking for dates which were acceptable for his deposition. A detailed description of these efforts is set forth in the County's Verified Motion. After Kelly repeatedly refused to provide such dates, on November 12, 1997, the County renoticed the deposition for November 20, 1997. On November 19, 1997, Kelly telephoned the County's counsel and advised that he would not appear for the deposition the following day. He also indicated that he would not provide any other dates whatsoever for scheduling the deposition. Needless to say, Kelly failed to appear at the scheduled deposition on November 20, 1997. This conduct prompted the County to file its motion.

Section 120.569(2)(d), Florida Statutes (Supp. 1996), authorizes the undersigned to "effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, including the imposition of sanctions." See also Rule

60Q-2.019(4), Florida Administrative Code. One such sanction is the dismissal of a petition. While dismissal is a remedy which should be employed only in extreme situations, the circumstances here call for such a sanction. As noted above, there is a willful noncompliance on the part of Kelly to follow the instructions of the undersigned to submit to a properly noticed

deposition. He has also indicated that he has no intention of attending a deposition, and he will not assist counsel in arranging a mutually acceptable date. Without Kelly's cooperation and attendance at a deposition, the County is materially prejudiced and cannot adequately protect and defend its rights in this administrative action. The undersigned finds that Kelly's failure to comply is deliberate and with full knowledge of the import of his actions.

One of the consequences of initiating a proceeding such as this is that the initiator will likely be required to submit to a deposition by the opposing party. Kelly has willfully and repeatedly refused to accept this consequence. Therefore, his petition is dismissed with prejudice. Compare Fitzgerald Wesley v. Sunshine-Jr. Stores, Inc., DOAH Case No. 93-5059, Order Granting Motion to Dismiss, April 28, 1994 (Comm. on Human Relations, August 31, 1994)(petition dismissed with prejudice for willful failure by petitioner to respond to interrogatories); Fitzgerald Wesley v. Sunshine-Jr. Stores, Inc., DOAH Case No. 94- 0891, Order Granting Motion to Dismiss, May 5, 1995 (Comm. on Human Relations, June 27, 1997) (petition dismissed with prejudice for willful failure by petitioner to respond to interrogatories).

After Kelly failed to attend the deposition scheduled on October 15, 1997, the County requested sanctions in the form of attorney's fees and costs incurred in having its out-of-town

counsel attend the deposition. In addition, Intervenor has requested attorney's fees. The requests are hereby denied.

Because the DCA's participation in this case is dependent on the viability of Kelly's petition, the dismissal of Kelly's petition, with prejudice, necessarily ends all administrative litigation in this case. See Section 163.3213(3), Florida Statutes (Supp. 1996). It is, therefore,

ORDERED that Jack David Kelly's second Verified Petition for Formal Administrative Hearing is dismissed, with prejudice, and Case No. 97-2835GM is closed.

DONE AND ORDERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997.

COPIES FURNISHED

Sherry A. Spiers, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Jack David Kelly

3331 Summit Boulevard, No. 87

Pensacola, Florida 32503

David G. Tucker, Esquire

14 West Government Street, Room 411 Pensacola, Florida 32501

William W. Merrill, III, Esquire 2033 Main Street, Suite 600

Sarasota, Florida 34237

Robert A. Emmanuel, Esquire

J. D. Smith, Esquire Post Office Drawer 1271

Pensacola, Florida 32596

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal,

First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 97-002835GM

Orders for Case No: 97-002835GM