STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CECILIA C. MEDINA,

vs.

Petitioner,

Case No. 15-5548CM

VECELLIO AND GROGAN, INC., A SUBSIDIARY AND WHOLLY OWNED COMPANY OF VECELLIO GROUP, INC., DOING BUSINESS AS WHITE ROCK QUARRIES,

Respondent.

/

FINAL ORDER

Pursuant to notice, this cause was heard by June C. McKinney, the assigned Administrative Law Judge of the Division of Administrative Hearings, on May 18, 2016, in Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Miguel A. De Grandy, Esquire

Holland & Knight, LLP

701 Brickell Avenue, Suite 3300

Miami, Florida 33131 STATEMENT OF THE ISSUES

The issues presented are whether damages resulted to Petitioner's home as a result of Respondent's use of explosives

in connection with construction materials mining activities, and, if so, what is the appropriate remedy.

PRELIMINARY STATEMENT

By Petition for Relief under the Florida Construction Materials Mining Activities Administrative Recovery Act ("Petition"), filed October 2, 2015, at the Division of Administrative Hearings, Petitioner alleged that Respondent's use of explosives caused damages to Petitioner's residence and monetary damages should be awarded to Petitioner.

On March 10, 2016, the case was scheduled for hearing in Fort Lauderdale, Florida, on May 18, 2016. On April 20, 2016, the undersigned issued an Amended Notice of Hearing, for the same hearing date, May 18, 2016, only changing the hearing location to Lauderdale Lakes, Florida. On May 12, 2016, another amended notice was issued also scheduling the hearing for May 18, 2016.

On May 17, 2016, Petitioner filed a Notice of Filing her Power of Attorney.

The undersigned convened the hearing on May 18, 2016.

Although Respondent's attorney and witnesses were present at the time and place scheduled for the hearing, Petitioner did not appear or offer evidence. The undersigned adjourned the hearing at approximately 10:13 a.m.

FINDINGS OF FACT

1. By Notice of Hearing entered March 10, 2016, this cause was scheduled for final hearing on May 18, 2016.

2. An Amended Notice of Hearing dated April 20, 2016, re- noticed the hearing for May 18, 2016, changing the location to Lauderdale Lakes, Florida.

3. On May 12, 2016, a second Amended Notice of Hearing also scheduled the hearing to start on May 18, 2016.

4. On May 17, 2016, Petitioner filed a Notice of Filing Her Power of Attorney.

5. At 9:30 a.m., on May 18, 2016, the date and time scheduled for the final hearing in this cause, Respondent's attorney and its witnesses, the court reporter and the undersigned were present.

6. Petitioner did not appear.

   
   

7. Petitioner's husband appeared at hearing indicating that he was there to represent Petitioner by Power of Attorney.

8. In administrative proceedings, pro se parties may either be represented by an attorney or a qualified representative.

9. On May 2, 2016, Petitioner's request that her husband represent her as a qualified representative was denied by Order Denying Motion/Request for Leave to be Represented by a Qualified Representative in this Case ("Order"). The Order held Petitioner's husband does not have the "knowledge and experience

   
   

   identified in Florida Administrative Code Rule 28-106.106 to serve as a qualified representative."

10. Petitioner's Renewed Motion/Request for Leave to be Represented by Qualified Representative in this Case was also denied by Order on Petitioner's Renewed Motion, dated May 16, 2016.

11. While addressing preliminary matters prior to starting the hearing, the undersigned held that the Power of Attorney could not substitute for rule 28-106.106. Therefore, Petitioner's husband was prohibited from representing Petitioner at the hearing due to Petitioner's husband not meeting the qualified representative standards.

12. After waiting for Petitioner to appear, the undersigned convened the hearing.

13. At 10:13 a.m., Petitioner still had not appeared.

    
    

14. The final hearing was adjourned.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569, 120.57(1), and 552.36, Fla. Stat. (2015).

16. In a case of this nature, the burden of proof is on the party asserting the affirmative of an issue. See Dep't of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co.,

    670 So. 2d 930, 934 (Fla. 1996).

    
    

17. Section 552.40, Florida Statutes (2015), provides:

    
    

    [If] . . . the preponderance of the evidence presented demonstrates that the petitioner's damages were caused by the respondent's use of explosives, the administrative law judge shall set forth in a final order precise findings as to the damages attributable to the respondent and shall direct the respondent to pay damages in an amount supported by the preponderance of the evidence presented.

    
    

    The burden is, therefore, upon Petitioner to prove by a preponderance of the evidence that the Respondent caused the damage to her residence.

18. Petitioner neither appeared nor presented any evidence.

Hence, she failed to meet her burden of proof by not offering any evidence in support of her Petition. In addition, Petitioner abandoned the claim in this proceeding by failing to appear at

hearing.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that Petitioner's Petition for Relief under the Florida Construction Materials Mining Activities Administrative Recovery Act is DENIED.

DONE AND ORDERED this 25th day of May, 2016, in Tallahassee,

Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2016.

COPIES FURNISHED:

Stephanie Melfi Vecellio & Grogan, Inc.

101 Sansbury Way

West Palm Beach, Florida 33411

Miguel A. De Grandy, Esquire Holland & Knight, LLP

701 Brickell Avenue, Suite 3300

Miami, Florida 33131 (eServed)

Daniel Hanlon, Esquire Holland & Knight, LLP

701 Brickell Avenue, Suite 3300

Miami, Florida 33131 (eServed)

Cecilia C. Medina

5344 Southwest 159th Avenue Miramar, Florida 33027 (eServed)

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 the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 15-005548CM

Orders for Case No: 15-005548CM