STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES E. CLARKE, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0348

)

MONROE COUNTY, FLORIDA, )

)

Respondent. )

)

FINAL ORDER

THIS CAUSE came before the undersigned for consideration of the Second Motion to Dismiss Appeal, filed by the intervenors, Floyd F. and Alice C. Melton. On December 16, 1996, Charles E. Clarke filed an Application for an Administrative Appeal of a Planning Commission Decision to a Hearing Officer. The record was compiled and the application transmitted to the Division of Administrative Hearings for the assignment of an Administrative Law Judge, pursuant to Article XIV of the Monroe County Code, Hearing Officer Appellate Article.

On February 3, 1997, Floyd and Alice Melton filed a Motion to Intervene and a Motion to Dismiss Appeal. Because the Meltons are the persons who applied for the building permit at issue in the appeal, the Motion to Intervene was granted in an order dated February 25, 1997. The ground for the Motion to Dismiss Appeal was Mr. Clarke’s failure to provide a complete transcript of the hearing of the Monroe County Planning Commission at which the

challenged action was taken. The motion was denied in an order dated February 25, 1997, but Mr. Clarke was ordered to supplement the record with the complete certified transcript within ten (10) days from the date of the order.

Pursuant to section 9.5-539(a), Monroe County Code, the initial brief in this case was due to be filed on or before February 4, 1997, fifty (50) days from the date the notice of appeal was filed with the planning commission. An order was entered on February 25, 1997, directing Mr. Clarke to file and serve his initial brief within fourteen (14) days from the date of the order, that is, on or before March 11, 1997. In the order, Mr. Clarke was advised that failure to file the initial brief within the time specified would result in the dismissal of the appeal.

To date, Mr. Clarke has not supplemented the record with the complete transcript of the planning commission hearing, he has not filed his initial brief, and he has not responded to the Second Motion to Dismiss Appeal Pursuant to section 9.5-541, Monroe County Code, an Administrative Law Judge “shall grant any sanction or relief as may be appropriate but shall not dismiss any appeal without first affording the appellant at least one (1) opportunity to correct the offending error.” Mr. Clarke has been given this opportunity and has failed to respond to the orders entered February 25, 1997. As a result, the dismissal of his appeal is appropriate, and the Second Motion to Dismiss Appeal is GRANTED.

CONCLUSION

Based on the foregoing, the appeal initiated by Charles E. Clarke by the filing of an Application for an Administrative Appeal of a Planning Commission Decision to a Hearing Officer is dismissed.

Pursuant to section 9.5-540(c), Monroe County Code, this final order is "the final administrative action of Monroe County." It is subject to judicial review by petition for writ of certiorari to the appropriate circuit court.

DONE AND ORDERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 10th day of April, 1997.

COPIES FURNISHED:

Andrew M. Tobin, Esquire Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

David Paul Horan, Esquire HORAN & HORAN

608 Whitehead Street Key West, Florida 33040

James Hendrick, Esquire Post Office Box 1117 Key West, Florida 33040

Garth Coller, Esquire Planning Commission Counsel County Of Monroe

2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

Gail Moro

Planning Commission Coordinator County of Monroe

2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

Docket for Case No: 97-000348

Orders for Case No: 97-000348