STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SEBRING, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 88-2832

) DCA 88-CDBG-CR-9 STATE OF FLORIDA, DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondent. )

) CITY OF MONTICELLO, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 88-2833

) DCA 88-CDBG-CR-8 STATE OF FLORIDA, DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondent. )

) CITY OF MASCOTTE, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 88-2834

) DCA 88-CDBG-CR-10 STATE OF FLORIDA, DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondent. )

) CITY OF MASCOTTE, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 88-2835

) DCA 88-CDBG-CR-11 STATE OF FLORIDA, DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on August 17, 1988 a formal hearing was held in these actions pursuant to Section 120.57(1), Florida Statutes. The location of hearing was Tallahassee, Florida, in the offices of the Division of Administrative Hearings. Charles C. Adams served as Hearing Officer. This

Recommended Order is being entered following consideration of the testimony presented at hearing and the tangible evidence presented. In addition, counsel for the parties have submitted proposed recommended orders, with the exception of counsel for the Cities of Sebring and Monticello. Those proposed recommended orders in their fact finding have been utilized to some extent as alluded to in the appendix to this Recommended Order. An indication is also given concerning the reason why proposals were not utilized.

APPEARANCES

For Petitioner, Brian T. Hayes, Esquire Cities of Sebring City Attorney

and Monticello: City of Monticello

245 East Washington Street Monticello, Florida 32344

Gary M. Ketchum, Esquire 1200 East Pearl Street Monticello, Florida 32344

For Petitioner,

City of Mascotte: William H. Stone, Esquire

703 East Burleigh Boulevard Tavares, Florida 32778

For Respondent, Gordon B. Johnston, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For City of Ernest M. Page, Jr., Esquire Greenville 108 South Range Street

Madison, Florida 32340

For City of William S. Howell, Jr., Esquire Vernon: 107 South 5th Street

Chipley, Florida 32428 ISSUES

The cities of Sebring, Monticello, Mascotte, Greenville and Vernon, together with other communities whose interest are not examined here, made application under the Small Cities Community Development Block Grant (FFY) 1987, Commercial Revitalization for block grant funds. This case examines the matter of the positioning of those applicants in the hierarchy of point standing established by the State of Florida, Department of Community Affairs (DCA), when that agency made its choice concerning block grant money to be awarded in that program. In particular, the case examines the question of whether Vernon, Mascotte, Greenville, Sebring and Monticello were entitled to receive 10 points for the adoption of a community redevelopment plan and 10 points for the creation of a community redevelopment agency in applying for the grant monies as those points influenced the standing in the hierarchy of applicants. This is significant given that not enough money was available to accommodate the requests by each of the named applicants and the loss of points would influence the question of entitlement to funds with the exception of Vernon which would be entitled to grant money even if their 20 points be excluded.

FINDINGS OF FACT

1. The cities of Sebring, Monticello, Mascotte, Greenville and Vernon, and other cities in Florida made application to DCA for block grants under the Small Cities Community Development Block Grant (FFY) 1987, Commercial Revitalization. The deadline for submission of those applications was February 26, 1988. The applications were submitted under the auspices of the application manual related to that program, a copy of which may be found as Respondent's Exhibit 1 admitted into evidence. This application manual is drawn in keeping with requirements of the Community Development Block Grant under Title I of the Housing and Community Development Act of 1974, as amended, and under Section 290, Florida Statutes, and Chapter 9B-43, Florida Administrative Code. The references in the Florida Statutes specifically are at Sections 290.0401-290.049, Florida Statutes, known as the "Florida Small Cities Community Development Block Program Act."

   
   

2. The applications by the various cities previously described were timely made. In accordance with the instructions set forth in the application manual, and per the review procedures of the DCA, each named community received a score of 10 points for the adoption of a community redevelopment plan and an additional 10 points for creation of a community redevelopment agency.

   
   

3. To comply with the application form and receive those points it was necessary for the clerk of the community to give certification that those items were on file in the clerk's office. There was a further necessity to sign, date and seal the response.

   
   

4. Following the receipt of the applications from the cities, the DCA received a complaint from a representative of Monticello concerning the existence of some possible irregularities related to the applications of Vernon, Mascotte and Greenville. Those claims involved the issue of whether those cities had adopted redevelopment plans and established redevelopment agencies at the application deadline on February 26, 1988. In the face of the allegations the DCA determined to follow-up and wrote to each city, namely the cities of Mascotte, Vernon, Greenville, Monticello and Sebring. Copies of the correspondence may be found in the Composite Exhibit Number 7 by the Respondent. The correspondence described the award of 10 points for creation of a redevelopment agency and 10 additional joints for creation of a redevelopment plan under authority of Chapter 163, Florida Statutes. It further described the need for certification by the Clerk of the town to gain the award of points.

   The correspondence went on to describe the possibility that information that would be needed to document the existence of the community redevelopment agency and the approval of the community redevelopment plan might not be on file in the community as required. As a consequence, each community was requested to confirm that documentation existed in its file by submission of the following information within seven (7) working days.

   
   

   1. A copy of the ordinance appointing a board of commissioners of the community redevelopment agency (pursuant to s. 163.356(2), F.S.) or a copy of the resolution declaring the member of the governing body as the community redevelopment agency (pursuant to s. 163.357, F.S.); and

   2. A copy of the City Community Redevelopment Plan and documentation that is was reviewed and adopted pursuant to s. 163.360(1)-(9), F.S.

      
      

      Absent the submission of this documentation the cities were told that they would not receive the points for establishing the redevelopment agencies and plans.

      
      

5. In turn, each of the subject communities responded to the requirements by sending copies of minutes, ordinances and resolutions related to adoption of plans and in creation of agencies. Copies of those documents may be found as Respondent's Composite Exhibit 8. They all evidence compliance with the February 26, 1988 deadline for adoption of plans and creation of agencies.

   
   

6. Having received this Information, DCA made its evaluation and on May 12, 1988, noticed the various applicants of its decision concerning the applications for grant money. Copies of the individual correspondence related to the subject cities who have been named may be found as part of the Respondent's Composite Exhibit 6 admitted into evidence. Attached to the correspondence was a breakdown of total points awarded, a description of the grant request and the money assigned in response to that request, all by way of stated intended agency action. The effect of the point awards was to disallow the grants sought by Sebring and Monticello in that there were insufficient funds to honor their applications and others with higher point totals. The stated agency action would allow the cities of Vernon, Greenville and Mascotte to receive all monies sought. In the face of this decision to award the proceeds to Vernon, Greenville and Mascotte to the exclusion of the cities of Sebring and Monticello the latter cities made timely petition to challenge the agency decision and in particular the decision to award 20 points to Vernon, Greenville and Mascotte for establishment of redevelopment plans and the creation of redevelopment agencies.

   
   

7. Even if the 20 points were disallowed for Vernon, they would still be entitled to the full proceeds. That would not be the situation with Greenville and Mascotte, in that they would be replaced by Sebring and Monticello, Sebring as to its entire request of $575,000 and Monticello as to part of its request in the amount of $76,518 of the $500,000 sought.

   
   

8. The city of Mascotte also filed challenges directed to Monticello and Sebring in the points assigned them for community redevelopment plans and agencies in the applications by those communities. No proof was offered at the hearing in futherance of this claim.

   
   

9. The proof submitted was not sufficient to establish that there was any impropriety by the City of Vernon in urging the DCA to award the 20 points in question.

   
   

10. The proof that was presented in the course of the hearing related to the activities of the cities of Mascotte and Greenville in establishing community redevelopment agencies and adopting redevelopment plans raised some suspicions about whether those activities had occurred prior to the February 26, 1988 deadline, but it was not complete enough to prove that the agencies had not been established and the plans had not been adopted prior to the February 26, 1988 date.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action, pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Petitioners Sebring, Monticello and Mascotte made a timely request for hearing to consider the question of their entitlement to grant funds in the Small Cities Community Development Block Grant (FFY) 1987, Commercial Revitalization. Those communities bore the burden of proof in the instance of Sebring and Monticello to establish that the points awarded to Vernon, Greenville and Mascotte for establishment of community development agencies and enactment of community redevelopment plans should not be allowed because these actions had not occurred by the February 26, 1988 deadline for applications. A similar burden was reposed in the city of Mascotte in its claims against Monticello and Sebring. See Balino vs. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) and Florida Department of Transportation vs. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

13. Part III to Chapter 163, Florida Statutes known as the "Community Redevelopment Act of 1969" establishes the need for each individual community to find the necessity for creation of a redevelopment agency and the enactment of a redevelopment plan, and the method by which the agency and plan are brought forth. The description of these activities is not one which contemplates the DCA having the substantive responsibility and authority to review and assure compliance with the statutory terms when the local communities carried forward this local legislation.

    
    

14. The process of the establishment of community redevelopment agencies and the adoption of community redevelopment plans for purposes of this case is associated with the DCA administration of the "Florida Small Cities Community Development Block Grant Program Act" found at Sections 290.041 through 290.049, Florida Statutes and the provisions of Chapter 9B-43, Florida Administrative Code. That statute and rule would allow the DCA to consider what steps the local community has taken in establishing a community redevelopment agency and adopting a community redevelopment plan, and to reward those communities who had undertaken those processes by assigning points when making the choice between competing applicants for the award of grant monies. This does not contemplate a critical analysis of the activities of those local communities in establishing community redevelopment agencies and adopting community redevelopment plans concerning exact compliance with the terms of Part III, Chapter 163, Florida Statutes. Nonetheless, in the context of the present dispute it was deemed appropriate to allow the DCA to examine the basic question of whether the cities under challenge had made a prima facie attempt at establishing community redevelopment agencies and enacting community redevelopment plans before the February 26, 1988 deadline for the submission of applications for grant monies. This afforded the Petitioners the opportunity to prove that the basic attempts had not been made by the deadline through evidence from witnesses and from the official records of those communities and through any concessions announced by officials within those communities to the effect that the community redevelopment agencies had not been established in the communities and/or redevelopment plans had not been enacted before the deadline. The proof that was forthcoming would not have mattered in the case of the City of Vernon, because it would have been entitled to the grant money award regardless of the deduction of 20 points. In addition, the proof directed to alleged improprieties by Vernon was insufficient to carry the burden of proof by a preponderance of evidence, as it was for the cities of Greenville and Mascotte.

No proof was presented concerning the inadequacy of Monticello or Sebring in efforts to establish community redevelopment agencies and to enact community redevelopment plans and therefore the claim is rejected. The evidence which DCA had available to it upon the original submission of applications and as augmented by the subsequent submissions by those cities was sufficient to allow the DCA to score the applications as it did. Thus the rankings given by DCA are found to be correct and the petition claims of the cities of Sebring, Monticello and Mascotte should be dismissed.

Upon consideration of the facts found and the conclusions of law reached it

is,

RECOMMENDED:

That a final order be issued which dismisses the petitions by Sebring,

Monticello and Mascotte, and awards the grant monies in accordance with the ranking set out in Respondent's Composite Exhibit 6.

DONE AND ENTERED this 10th day of October, 1988, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2832, 88-2833, 88-2834 AND 88-2835

The following constitutes a discussion of the factual proposals of the parties submitting proposed recommended orders.

The City of Mascotte

Paragraphs 1 and 2 are subordinate to facts found with the exception of reference to the consulting groups who helped the communities in applying for the grants associated with commercial revitalization. Identification of those firms is not necessary to the resolution of this dispute.

Paragraphs 3-19 are subordinate to facts found.

Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21-30 are subordinate to facts found.

DCA Facts

Paragraphs 1-8 are subordinate to facts found.

Paragraph 9 is an argument in law in its first sentence. The second sentence is a reiteration of the ruling related to the scope of testimony and tangible evidence that would be allowed in the hearing.

City of Greenville

All facts are subordinate to facts found.

City of Vernon

Paragraphs 1-8 are subordinate to facts found. Paragraph 9 is contrary to facts found.

Paragraph 10 is not necessary to the resolution of the dispute. Paragraph 11 is subordinate to facts found.

COPIES FURNISHED:

Gordon B. Johnston, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Mr. Peter H. Pollard Executive Director Community Redevelopment Agency, City of Sebring

368 South Sebring Sebring, Florida 33870

The Honorable Harrell Sapp Mayor, City of Vernon

Post Office Box 347 Vernon, Florida 32462

Brian T. Hayes, Esquire City Attorney

City of Monticello

245 east Washington Street Monticello, Florida 32344

Gary M. Ketchum, Esquire 1200 East Pearl Street

Monticello, Florida 32344 11

William H. Stone, Esquire 703 East Burleigh Blvd.

Tavares, Florida 32778

Ernest N. Page, Jr., Esquire

108 South Range Street Madison, Florida 32340

William S. Howell, Jr., Esquire

107 S. 5th Street Chipley, Florida 32428

The Honorable Lamar Andrews Mayor, City of Greenville Post Office box 235 Greenville, Florida 32331

The Honorable Odish (Josh) Thomas Mayor, City of Mascotte

Post Office Box 56 Mascotte, Florida 32753

Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Louis A. Vargas, Esquire Department of Community Affairs General Counsel

1311 Winewood Boulevard

Tallahassee, Florida 32399-2100

Docket for Case No: 88-002832

Orders for Case No: 88-002832