FINAL ORDER NO. DCA 09-GM-047 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS JUDY E. RUSSELL, d/b/a GATEWAY SHOPPES, LLC, Petitioner, Case No. 09-0229GM vs. BROWARD COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, Respondents. FINAL ORDER This matter was considered by the Secretary of the Department of Community Affairs (“the Department”) following receipt and consideration of an Order issued by an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings. A copy of the Order is attached to this Final Order as Exhibit A. BACKGROUND This matter involves Petitioner’s challenge to a comprehensive plan amendment adopted by Broward County (“County”) by Ordinance No. 2008-40, amending the Potable Water Element, and Ordinance No. 2008-41, amending the Drainage and Natural Groundwater Aquifer Recharge Element. The Department published a notice of intent to find the Plan Amendment “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes(2008). Petitioner challenged the Plan Amendment, as authorized by Section 163.3184(9)(a), Florida Statutes(2008), and petitioned for FINAL ORDER NO. DCA 09-GM-047 a Formal Administrative Hearing. The matter was assigned DOAH Case No. 09-0229GM, and was scheduled for formal hearing. On January 26, 2009, the County filed a Motion to Dismiss on the grounds that the Petition does not make any allegations regarding the Broward County Comprehensive Plan Potable Water Element and Drainage and Natural Groundwater Aquifer Recharge Element amendments, but only makes allegations regarding the City of Fort Lauderdale land development regulations related to the North U.S. Highway 1, Urban Design Plan, and does not allege that Petitioner made comments, objections, or recommendations regarding Broward County’s plan amendments, as required to be an “affected person” with standing under Section 163.3184(1)(a), Florida Statutes (2008). On February 11, 2009, the ALJ treated the Motion to Dismiss as a motion to relinquish jurisdiction under Section 120.57(1)(i), Florida Statutes (2008), and submitted an Order Canceling Hearing, Relinquishing Jurisdiction and Closing File on the ground that the Petitioner was not an “affected person” with standing under Section 163.3184(1)(a), Florida Statutes. ROLE OF THE DEPARTMENT Throughout the pendency of the formal administrative proceedings, the Department’s litigation staff contended that the Plan Amendment was in compliance. After the ALJ issued his Order Canceling Hearing, Relinquishing Jurisdiction and Closing File, the Department assumed two functions in this matter. The attorney and staff who advocated the Department’s position throughout the formal proceedings continued to perform that function. The other role is performed by agency staff who took no part in the formal proceedings, and who have reviewed the entire record and the ALJ’s Order. Based upon that review, the Department must either enter a final order consistent with the FINAL ORDER NO. DCA 09-GM-047 ALJ’s Recommended Order Canceling Hearing, Relinquishing Jurisdiction and Closing File on the ground that the Petitioner was not an “affected person” with standing under Section 163.3184(1)(a), Florida Statutes, or enter an order determining that the Petitioner has standing to challenge that thé Plan Amendment is not in compliance. Standard of Review of Recommended Order The Administrative Procedure Act contemplates that the Department will adopt an Administrative Law Judge’s Recommended Order as the agency’s Final Order in most proceedings. To this end, the Department has been granted only limited authority to reject or modify findings of fact in a Recommended Order. Rejection or modification of conclusions of law may not form the basis for rejection or modification of 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. Section 120.57(1)(1), Fla. Stat. Absent a demonstration that the underlying administrative proceeding departed from essential requirements of law, “[a]n ALJ's findings cannot be rejected unless there is no competent, substantial evidence from which the findings could reasonably be inferred.” Prysi v. Department of Health, 823 So. 2d 823, 825 (Fla. 1* DCA 2002)(citations omitted). In determining whether challenged findings are supported by the record in accord with this standard, the Department may not reweigh the evidence or judge the credibility of witnesses, both tasks being within the sole province of the Administrative Law Judge as the finder of fact. See Heifetz v. Department of Bus. Reg., 475 So. 2d 1277, 1281-83 (Fla. 1 DCA 1985). The Administrative Procedure Act also specifies the manner in which the Department is to address conclusions of law in a Recommended Order. FINAL ORDER NO. DCA 09-GM-047 The agency in its final order may reject or modify the 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. Section 120.57(1)(1), Fla. Stat.; DeWitt vy: School Board of Sarasota County, 799 So. 2d 322 (Fla. 2" DCA 2001). The label assigned a statement is not dispositive as to whether it is a finding of fact or . conclusion of law. See Kinney v. Department of State, 501 So. 2d 1277 (Fla. 5" DCA 1987). Conclusions of law labeled as findings of fact, and findings labeled as conclusions, will be considered as a conclusion or finding based upon the statement itself and not the label assigned. ORDER Upon review and consideration of the entire record of the proceeding, including the ALJ’s Order Canceling Hearing, Relinquishing Jurisdiction, and Closing File, it is hereby ordered that: 1. The Administrative Law Judge’s recommendation is accepted; and 2. The comprehensive plan amendments adopted by Broward County by Ordinance Nos.: 2008-40 and 2008-41 are determined to be in compliance as defined in Section 163.3184(1)(b), Florida Statutes (2008). DONE AND ORDERED in Tallahassee, Florida. in eS Manes bo Riches ad 9 440, Lor haw P. Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 FINAL ORDER NO. DCA 09-GM-047 NOTICE OF RIGHTS EACH PARTY IS HEREBY ADVISED OF ITS RIGHT TO SEEK JUDICIAL REVIEW OF THIS FINAL 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. MEDIATION UNDER SECTION 120.573, FLORIDA STATUTES, IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 09-GM-047 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community. Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on thiexdh ” day of May, 2009. By U.S. Mail The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Judy E. Russell Gateway Shoppes 509 Idlewyld Drive Fort Lauderdale, Florida 33301 Maite Azcoitia, Esquire Broward County Attorney’s Office 115 South Andrews Avenue, Suite 423 Fort Lauderdale, Florida 33301 By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs Paula Ford Agency Clerk

Docket for Case No: 09-000229GM