Final Order No. DCA06-GM-116 STATE OF FLORIDA r / L. E B DEPARTMENT OF COMMUNITY AFFAIRS 2006 APR 27 A Hs} RONALD M. BROOKE, DIVISION OF ADMINISTRATIVE Petitioner, HEARINGS vs. DOAH Case No. 06-0327 06-0328 UNIVERSITY OF CENTRAL FLORIDA, Respondent. / FINAL ORDER This matter was considered by the Secretary of the Department of Community Affairs (“the Department”) following receipt and consideration of a Recommended Order issued by an Administrative Law Judge (“ALI”) of the Division of Administrative Hearings. A copy of the Recommended Order is attached hereto as Exhibit A. BACKGROUND This matter involves challenges to two actions of the University of Central Florida’s (“UCEF”) Board of Trustees. The first challenge was to numerous amendments to UCF’s Campus Master Plan adopted on November 30, 2004, which became known as the 2005-2015 CMP Amendment, hereinafter referred to as the “CMP Amendment.” The second challenge was to a “major” amendment to the 2005-2015 CMP Amendment adopted on November 9, 2005, relating to the addition of an on-campus football stadium, and hereinafter referred to as the “Stadium Amendment.” The Petitioner challenged the CMP and Stadium Amendments by filing a Petition with UCF Board of Trustees, which in turn filed the Petition with the Division of Administrative Hearings (“DOAH”), as authorized by §1013.30(7) and (8), Fla. Stat. Final Order No. DCA06-GM-116 (2005). The Stadium Amendment was assigned DOAH Case No. 06-0327 and the CMP Amendment was assigned DOAH Case No. 06-0328. The cases were then consolidated. A formal hearing was conducted by an Administrative Law Judge (“ALT”). Following the hearing, the ALJ submitted his Recommended Order to the Department according to §1013.30(8)(b), Fla. Stat. (2005). The ALJ recommended: 1. that the Department enter a Final Order determining that the Petition filed in Case No. 06-0328 was not timely filed, 2, that the CMP and Stadium Amendments are in compliance with §1013.30 Fla. Stat. and 6C-21, F.A.C., 3. the Amended Verified Petition in Case No. 06-0327 be dismissed, 4, the Amended Verified Petition in Case No. 06-0328 be dismissed, and 5. Respondent’s Motion for Attorney’s Fees and Costs in both cases be denied, Petitioner filed Exceptions to the Recommended Order, and the Respondent filed a Response to Petitioner’s Exceptions. ROLE OF THE DEPARTMENT The CMP and Stadium Amendments were not reviewed by the Department and the Department was not a party to the DOAH proceeding. §1013.30(8)(b), Fla. Stat. (2005). Therefore, the ban on ex parte communications imposed by §120.66, Fla. Stat. (2005) would normally not apply to any employees of the Department. However, a Department employee was subpoenaed for this case and an attorney for the Department participated in the hearing by phone for the purpose of examination of the employee as a witness. Accordingly, the Department employees who participated in the hearing have not communicated with the Secretary regarding the merits of this case. The Secretary of the Department and agency staff who have taken no part in the formal proceedings in DOAH Case No. 06-0327 and 06-0328 have reviewed the entire No Final Order No. DCA06-GM-116 record and the Recommended Order in light of the Exceptions. Based upon that review, the Secretary of the Department must either enter a Final Order consistent with the ALJ’s recommendations finding the Stadium and CMP Amendments in compliance with §1013.30, Fla. Stat. (2005), or determine that the amendments are not in compliance. Having reviewed the entire record, the Secretary accepts the recommendation of the Administrative Law Judge as to the disposition of this case. STANDARD OF REVIEW OF RECOMMENDED ORDER AND EXCEPTIONS The Administrative Procedure Act contemplates that the Department will adopt the Recommended Order except under certain limited circumstances. The Department has only limited authority to reject or modify the ALJ’s findings of fact: The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. §120.57(1)(D, Fla. Stat. (2005) The Department cannot reweigh the evidence considered by the ALJ, and cannot reject findings of fact made by the ALJ if those findings of fact are supported by substantial competent evidence in the record. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1" DCA 1985); and Bay County School Board v. Bryan, 679 So.2d 1246 Fla. 1 DCA 1996), construing a provision substantially similar to §120,57(1)(D, Fla. Stat. See also, Pillsbury v. Department of Health and Rehabilitative Services, 744 So. 2d 1040 (Fla. 2d DCA 1999). . The Department may reject or modify the ALJ’s conclusions of law or interpretation of administrative rules, but only those, Final Order No. DCA06-GM-116 conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. §120.57(1)(), Fla. Stat. (2005) The label assigned to a statement is not dispositive as to whether it is a conclusion of law or a finding of fact. Battaglia Properties, Ltd. v. FLWAC, 629 So.2d 161 (Fla. 5" DCA 1993); Kinney v. Department of State, 501 So.2d 1277 (Fla. 5" DCA 1987). Conclusions of law, even though stated in the findings of fact section of a recommended order, may be considered under the same standard as any other conclusion of law. RULINGS ON EXCEPTIONS Petitioners’ General Exceptions to Recommended Order, DOAH Cases‘No. 06-0327 and 06-0328 1, Petitioner claims in Exception 1. that “[t]he hearing record that has been forwarded to DCA does not appear to include the transcripts and the other documents contained in Respondent’s Motion for Official Recognition.” The hearing record does, in fact, contain the documents applicable to Respondent’s Motion for Official Recognition. Therefore, Petitioner’s Exception 1. is DENIED. 2, Petitioner requested in Exception 2. that Petitioner’s Proposed Recommended Order be included in the hearing record. Since Petitioner’s Proposed Recommended Order was filed with the ALJ, it is part of the hearing record. Petitioner also requests that Petitioner’s Recommended Order be reviewed and considered in the determination of the Final Order. The Department’s role in the proceedings is to review the ALJ’s Recommended Order according to the Standards of Review of Recommended Order and Final Order No. DCA06-GM-116 Exceptions found above, and to issue a Final Order. Therefore, Petitioner’s Exception 2. request for inclusion of the Proposed Recommended Order is ACCEPTED and request for review and consideration is DENIED. 3. Petitioner requests in Exception 3. that the Department determine that the DOAH proceedings did not comply with the essential requirements of law because the ALI ruled in the Recommended Order, paragraph 92, that “[c]ompliance with Final Order AC-05-002 is outside the scope of the hearing.” Compliance with Final Order AC-05- 002 is, in fact, outside the scope of this proceeding as §1013.30, Fla. Stat. (2005) requires that the CMP and Stadium Amendments comply with the requirements of §1013.30, Fla. Stat. and 6C-21, F.A.C., not with prior orders of the Administration Commission. Therefore, Petitioner’s Exception 3. is DENIED. Petitioner’s Exceptions, “Stadium Amendment Non-Compliance with §1013.30, Fla. Stat, and 6C-21, F.A.C.,”” DOAH Case No. 06-0327 4. In Petitioner’s Exception 4., Petitioner requests that the Department reweigh “unquestioned elements of law and the subsequently applicable findings of fact.” The Department may not reject or modify the ALJ’s findings of fact unless the Department first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. §120.57(1)(J, Fla. Stat. (2005). The Department finds that the ALI’s findings of fact relating to this Exception are based on competent substantial evidence and the proceedings complied with essential requirements of law. The Department concurs in the ALJ’s determination. Therefore, Petitioner’s Exception 4. is DENIED. Final Order No. DCA06-GM-116 5. In Petitioner’s Exception 5., Petitioner claims that the ALJ’s Recommended Order does not address certain facts. The Department may not reject or modify the ALJ’s findings of fact unless the Department first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. §120.57(1)(D, Fla. Stat. (2005). The Department finds that the ALJ’s findings of fact relating to this Exception are based on competent substantial evidence. Therefore, Petitioner’s Exception 5. is DENIED. 6. In Petitioner’s Exception 6., Petitioner claims that the Stadium Amendment “does not fully address all of the requirements of [§1013.30(3), Fla. Stat.].” The Department concurs in the ALJ’s determination that the requirements of §1013.30, Fla. Stat. (2005) are met. Therefore, Petitioner’s Exception 6 is DENIED. Petitioner’s General Exception to Recommended Order, DOAH Case No. 06-0328 7. In Petitioner’s Exception 4., Petitioner challenges the ALJ’s determination (Recommended Order paragraphs 119.-124.) that Petitioner’s Amended Verified Petition that became DOAH Case No. 06-0328 was not timely filed and should be dismissed. The Department concurs in the ALJ’s determination of untimeliness. Therefore, Petitioner’s Exception 4. is DENIED. Petitioner’s Exceptions, “2004 CMP Non-Compliance with §1013.30, Fla. Stat, Rule 6C- 21, F.A.C., and AC-04-003,” DOAH Case. No. 06-0328 8, In Petitioner’s Exception 5., Petitioner challenges the ALJ’s finding that “[c]ompliance with Final Order AC-05-002 is outside the scope of the hearing” (Recommended Order, paragraph 92). Compliance with Final Order AC-05-002 is, in fact, outside the scope of this proceeding as §1013.30, Fla. Stat. (2005) requires the CMP Final Order No. DCA06-GM-116 and Stadium Amendments to comply with the requirements of §1013.30, Fla. Stat. and 6C-21, F.A.C., not with prior orders of the Administration Commission. Therefore, Petitioner’s Exception 5. is DENIED. ORDER Upon review and consideration of the record of the proceeding, including the Recommended Order, it is hereby ordered that: 1. The findings of fact and conclusions of law in the Recommended Order are adopted; 2. The Administrative Law Judge’s recommendation is accepted; and, 3, The Department determines that the Petition filed in Case No. 06-0328 was not timely filed, the CMP and Stadium Amendments are in compliance with §1013.30 Fla. Stat. (2005) and 6C-21, F.A.C.; and, 4. Respondent’s Motion for Attorney’s Fees and Costs in both cases is denied. DONE AND ORDERED iz Tattahassee, Florid Final Order No. DCA06-GM-116 NOTICE OF RIGHTS ANY PARTY TO THIS FINAL ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW OF THE ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(B)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. Final Order No. DCA06-GM-116 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has béen filed with the undersigned Agency Clerk of the Department of Community Affairs, and that the true and correct copies have been furnished to the persons listed below this l & n , 2006. By Hand Delivery: Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 By U.S. Mail: W. Scott Cole, Esq. University of Central Florida Board of Trustees 4000 Central Florida Blvd. Orlando, FL 32816 Ronald M. Brooke 2421 Brixham Ave, Orlando, FL 32828 day of Paula Ford, Agenéy Clerk DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 David Jordan, General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Brenna M. Durden, Esq. Melissa Gross-Arnold, Esq. Lewis, Longman & Walker, P.A. 245 Riverside Ave. Suite 150 Jacksonville, FL 32202 Vikki R. Shirley, Esq. Board of Governors Turlington Building, 1614 325 W. Gaines St. Tallahassee, FL 32399

Docket for Case No: 06-000327

Orders for Case No: 06-000327