Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On December 14, 2010, the Department published its Notice of Intent to find Lee County’s 10-2 amendment to its comprehensive plan, adopted by Ordinances 10-34 through 10-40, “in compliance” as that term is defined by Section 163.3184(1) (b), Florida Statutes. Filed March 14, 2011 10:36 AM Division of Administrative Hearings FINAL ORDER No. DCA11-GM-043 On January 6, 2011, pursuant to Section 163.3184(9), Florida Statutes, the Department forwarded LB at Miromar Lakes, LLC’s Petition for Administrative Hearing to the Division of Administrative Hearings. The case was assigned DOAH case number 11-0045. Petitioner filed a Notice of Voluntary Dismissal with Prejudice on March 9, 2011. There are no other Petitioners in this case, and, therefore, no disputed issues remain to be resolved. The Florida Supreme Court held that “[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1991). A moot case generally will be dismissed. Id.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) 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, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA11-GM-043 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 the manner indicated to each of the persons listed below on this AY ay of (Made 2011. aula Ford Agency Clerk The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail By Electronic Mail Andrew W.J. Dickman, Esquire Andrew Dickman, P.A. Post Office Box 771390 Naples, Florida 34107-1390 AndrewDickman@comcast.net Donna Marie Collins, Esquire Susan Henderson, Esquire Lee County Attorney’s Office Post Office Box 398 Fort Myers, Florida 33902-0398 dcollins@leegov.com shenderson@leegov.com FINAL ORDER No. Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler White Boggs, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, Florida 32302-1240 lshelley@fowlerwhite.com kbrodeen@fowlerwhite.com Russell P. Schropp, Esquire Henderson, Franklin, Starnes & Holt, PA 1715 Monroe Street Fort Myers, Florida 33901 russell.schropptéhenlaw.com Charles J. Basinait, Esquire Henderson Franklin Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Charles .Basinait@henlaw.com Lynette Norr, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 Lynette .Norr@dca.state.fl.us DCA11-GM-043
The Issue Whether the Petition for Formal Administrative Hearing filed by the Respondent, Carlos Sasse, should be dismissed in part for failure to timely file. Whether the Petitioner, the School Board of Leon County, should have abolished Mr. Sasse's position of employment and failed to fulfill its contract of employment with Mr. Sasse.
Findings Of Fact Carlos Sasse's Employment with the School Board. In July, 1989, the Respondent, Carlos Sasse, was hired by the Petitioner, the School Board of Leon County. Mr. Sasse was hired as the Assistant Superintendent of Instruction (or a similarly designated position). Mr. Sasse's duties included the supervision of seven executive directors, the functioning of twenty-two elementary schools, seven middle schools, five high schools and a number of other programs. The Superintendent of the School District, William M. Woolley, recommended that Mr. Sasse be retained for the 1991-1992 fiscal year of the School Board. The School Board accepted the Superintendent's recommendation and reappointed Mr. Sasse as Assistant Superintendent of Instruction. The School Board's fiscal year runs from July 1st to June 30th. For the 1991-1992 fiscal year the School Board approved (on April 16, 1991), and Mr. Sasse accepted, the employment of Mr. Sasse for twelve months beginning July 1, 1991, at a salary of approximately $60,000.00, plus fringe benefits. No written contract of employment between the School Board and Mr. Sasse for the 1991-1992 fiscal year was entered into. The School Board admitted, however, in its Answer filed in this case that Mr. Sasse was employed pursuant to an annual contract of employment. Mr. Sasse has performed his duties with the School Board in a satisfactory manner. The School Board's 1991-1992 Budget. The School Board is charged by law with the responsibility to operate, control and supervise all public schools within the School District. In fulfilling its responsibilities, the School Board is required to approve a budget for the operation of the school system. Toward this end, the School Board approved the budget for the 1991-1992 school year (hereinafter referred to as the "1991-1992 Budget"), on September 17, 1991. See Petitioner's Exhibit 1. Consistent with the requirements of Florida law (Section 237.061, Florida Statutes), the 1991-1992 Budget was a balanced budget. That is, projected expenditures did not exceed projected sources of funds. At the time the School Board approved the 1991-1992 Budget, the School Board members were aware of the unfavorable economic conditions impacting the budget. The School Board had taken actions prior to the 1991-1992 fiscal year to reduce expenditures by reducing approximately seventy-five positions totaling almost $2.5 million. The 1991-1992 Budget consisted generally of five "funds": (a) a general operating fund; (b) a special revenue fund; (c) a capital improvement fund; (d) a debt service fund; and (e) a trust and agency fund. The general operating fund is the fund providing for the budget for the School Board's educational and support service programs. The School Board was somewhat restricted in the use of monies between funds. For a more detailed description of the various funds (other than the general operating fund), see proposed findings of fact 7-10 of the School Board's proposed recommended order. The final 1991-1992 Budget provided for approximately $131 million of expenditures and, excluding certain fund balances, approximately $125 million of revenues. State revenue accounted for approximately 72% of the general operating fund of the 1991-1992 Budget. Approximately 82% of the general operating fund was earmarked for salaries and employee benefits for the approximately 4,000 employees of the School District. In approving the 1991-1992 Budget the School Board established certain priorities, which the School Board sought to achieve through the 1991-1992 Budget. For more details concerning those priorities, see the School Board's proposed findings of fact 14 and 15. The Unappropriated Fund Balance. Although not required by statute, it is generally recognized within the public agency sector that public agencies, such as the School Board, should attempt to maintain an amount of money as an "unappropriated fund balance" (hereinafter referred to as the "Fund Balance"), or as a reserve equal to approximately 5% of the total operating budget. In an effort to establish a Fund Balance, the School Board adopted Rule 6.01, Rules of the School Board. Rule 6.01 provides, in pertinent part: (14) . . . . The School District shall establish and maintain an annual contingency reserve of no less than 1% of the total general fund effective with the 1990-91 fiscal year, increasing by as much as 1% per fiscal year thereafter until stabilizing at 5% subject to an annual financial review by the Board during the budget process. This reserve shall provide for temporary funding of unforeseen needs of an emergency or non- recurring nature. . . . The Fund Balance was separate from another contingency fund created by Rule 6.01. For the 1990-1991 fiscal year, the School Board's goal of a 1% Fund Balance was achieved. The Fund Balance at the end of the 1990-1991 fiscal year was $7,841,954.00. For the 1991-1992 Budget, however, the School Board was required to utilize the Fund Balance to meet "unforeseen needs of an emergency or non- recurring nature." As a result of severe revenue restrictions, the School Board was required, and decided as part of its approval of the 1991-1992 Budget on September 17, 1991, to utilize approximately $5,167,746.00 of the Fund Balance. At the time the 1991-1992 Budget was adopted, the School Board anticipated that it would receive approximately $2.6 million more in total general operating fund revenues than it had in the previous fiscal year. It also anticipated expenditures of approximately $10 million over the previous fiscal year because of increases in salaries, fringe benefits, carry over obligations and other expenses. Therefore, it was anticipated that expenditures would exceed revenues by approximately $7.4 million. The School Board decided to offset the projected 7.4 million excess, in part, by using $5.2 million of the Fund Balance. This resulted in a projected Fund Balance of only $2,674,208.00. The School Board approved the 1991-1992 Budget with a projected Fund Balance of $2,674,208.00, less than its 1% goal. Rule 6.01, however, recognizes the possibility that the Fund Balance may have to be used. While Rule 6.01 establishes a 5% goal for the Fund Balance, it does not require that this goal be achieved within any particular time period. Anticipated Shortfalls in State Funding and the School Board's Response Thereto. Between September 17, 1991, and November 5, 1991, the School Board was informed that the State of Florida had predicted that the anticipated revenues to be paid to the School District by the State would likely be $3,300,000.00 less than previously anticipated. After applying an emergency 1% fund and other funds to offset this anticipated reduction in revenues, the School Board was faced with a reduction of approximately $1,550,000.00 in its projected revenues for the 1991-1992 Budget. The School Board met on November 5, 1991, to consider what action to take to respond to the anticipated short-fall in State funding. During this meeting, the School Board heard from, among others, Lee Legutko, the Chief Financial Officer of the School District. After hearing from the Chief Financial Officer, the School Board directed the Superintendent to prepare for consideration at a November 19, 1991, meeting of the School Board a number of budget-reducing and other budget-related items. Among the items to be prepared for consideration was the following: the abolishment of the following positions effective December 31, 1991 as shown below: * ....Executive Director of Operations ....Executive Director of Student Services ....One position in Information Services ....Assistant Director of Educational Media ....Athletic Complex Foreman ....District Auditor ....Internal Accounts Auditor * Executive Director of Facilities ....Assistant Superintendent for Instruction ....Assistant Superintendent for Administration *Combine [Emphasis added]. At the November 5, 1991, School Board meeting, the School Board directed the Superintendent to notify the persons who were in the positions under consideration for abolishment that the School Board would consider the issue at the November 19, 1991, meeting. By letter dated November 12, 1991, from the Superintendent to Mr. Sasse, Mr. Sasse was informed of the School Board's action at the November 5, 1991, meeting. Among other things, the Superintendent told Mr. Sasse: At [the November 19, 1991] meeting, the Board may take formal action to abolish the position currently filled by you effective December 31, 1991. Any such abolishment of your position will be without prejudice to your right to petition the Board for a subsequent hearing with respect to your right of employment in and the availability of other positions for which you may be qualified. [Emphasis added]. The Superintendent went on to inform Mr. Sasse of the place and time of the meeting, he invited Mr. Sasse to attend and "present your position" (including through a written statement) and he assured Mr. Sasse that the Superintendent was committed to assisting persons adversely affected to "find other employment within the District with no break in service." The Superintendent ended the letter by assuring Mr. Sasse that he would make no recommendation until the November 19th meeting. Mr. Sasse was not advised in the November 12, 1991, letter, or otherwise, that his position was abolished or as to any due process rights he might have to contest any action adversely affecting Mr. Sasse's employment contract with the School Board. Mr. Sasse received the November 12, 1991, letter from the Superintendent. The School Board met on November 19, 1991. Among the items considered during this meeting was the abolishment of Mr. Sasse's position and the other positions the Superintendent had been requested to consider. Mr. Sasse was aware of the fact that the abolishment of his position would be considered prior to the meeting. He attended the meeting and, therefore, was aware of the School Board's action concerning his position during the November 19, 1991, meeting. Counsel for Mr. Sasse spoke on his behalf at the November 19, 1991, meeting. The Chief Financial Officer of the School District informed the School Board at the November 19, 1991, meeting, as he had at the November 5, 1991, meeting, that the 1991-1992 Budget would be balanced as required by law even if the School Board did not abolish Mr. Sasse's position (or the other positions being considered for abolishment). The Chief Financial Officer notified the School Board that the Fund Balance for the 1991-1992 Budget would be $260,758.00 if all eight of the positions the School Board had identified for consideration at its November 5, 1991, meeting were abolished effective December 31, 1991. Upon a motion being duly made, the School Board voted three to two to abolish the positions the School Board had identified for consideration at its November 5, 1991, meeting, including the position of Mr. Sasse. The positions were all eliminated effective December 31, 1991. Later during the November 19, 1991, meeting, the School Board voted to reinstate one of the eight abolished positions. Therefore, ultimately, the School Board eliminated seven positions, including Mr. Sasse's. The manner in which Mr. Sasse's position was eliminated consisted of a vote of the School Board to eliminate the position and the adoption of an amendment to the 1991-1992 Budget to eliminate funding for Mr. Sasse's position for the second half of the 1991-1992 fiscal year. The School Board also approved other amendments to the 1991-1992 Budget at the November 19, 1991, meeting. The abolishment of Mr. Sasse's position resulted in a savings in the 1991-1992 Budget of approximately $40,609.00. The net savings attributable to the abolishment of the seven positions eliminated was approximately $165,000.00. After all the amendments to the 1991-1992 Budget approved on November 19, 1991, the Fund Balance was projected to be $192,442.00. Therefore, the Fund Balance was sufficient to provide the funding necessary to fulfill the School Board's annual contract with Mr. Sasse from the Fund Balance. According to the Chief Financial Officer, it was not necessary to abolish Mr. Sasse's position in order for the School Board to maintain a balanced budget. The Superintendent recommended to the School Board that all of the positions other than Mr. Sasse's be eliminated. The Superintendent recommended that the School Board not eliminate Mr. Sasse's position based upon the Chief Financial Officer's advice to the School Board and the Superintendent's perceived need for the position. The Superintendent has subsequently, however, indicated that the loss of the position has actually had some positive impact on the administration of the Leon County school system. The School Board did not undertake any study or review of the administration of the School District before determining which positions, if any, should be considered for elimination prior to its action on November 19, 1991. It did take such action after the fact. Prior to reaching its decision on November 19, 1991, the School Board did not receive evidence or testimony or provide other due process safeguards to Mr. Sasse. The weight of the evidence failed to prove that the projected Fund Balance as of November 19, 1991, could not have been used to fulfill Mr. Sasse's employment contract for the entire fiscal year. After abolishing Mr. Sasse's position and the other positions the School Board directed the Superintendent to take the following actions: . . . promptly advice those persons whose positions have been abolished by the action of the Board, advise those persons of any vacant positions for which they may seek to be considered and to suggest to those affected persons that they make known their interest in any such vacancies within the next several weeks. . . . The motion to abolish Mr. Sasse's position and the other positions adopted by the School Board also expressly provided that the School Board's actions was "subject to the right of the incumbents to file a petition with the Board for a subsequent hearing for the purposes of determining whether there are other vacant positions for which these persons are qualified " The weight of the evidence failed to prove that were not other reasonable alternatives to breaching its contract with Mr. Sasse available to the School Board to address the budget problems. For example, the School Board failed to refute evidence presented by Mr. Sasse concerning the possibility of furloughing administrative staff for one day. The School Board also failed to refute evidence presented by Mr. Sasse that the School Board normally has lapsed salary (amounts budgeted to be paid for salary which are not used because of vacancies) which has averaged $1 million a year. At the time of the final hearing of this matter, the anticipated carry forward in revenues for the 1991-1992 fiscal year was $1.1 million. Efforts to Place Persons in Abolished Positions in Other Positions. Subsequent to the November 19, 1991, meeting, Mr. Dave Giordano, the Director of Personnel Services of the School District, considered alternatives for placing the persons in other positions within the school district whose positions had been abolished. The alternatives were discussed with the Superintendent and other administrative staff. A memorandum dated November 22, 1991, was written by Mr. Giordano to Mr. Sasse and was provided to Mr. Sasse. The memorandum notified Mr. Sasse that the School Board had directed that Mr. Sasse "be allowed, without prejudice, to apply for other positions within the school district." Mr. Giordano requested that Mr. Sasse notify him in writing within the next three weeks of any positions he wished to be considered for. A copy of a list of eight vacant and available positions was provided to Mr. Sasse with the memorandum. Three days after Mr. Giordano prepared his November 22, 1991, memorandum to Mr. Sasse, Mr. Giordano prepared a memorandum to the Superintendent setting forth for consideration a possible plan for the placement for the displaced employees into the vacant and other existing positions Mr. Sasse had been informed of. The plan of placement set out in Mr. Giordano's November 25, 1991, memorandum was based upon the discussions between the Superintendent and staff that had already taken place. Based upon the plan, Mr. Sasse was being considered for the position of Director of Co-Curricular Activities. On December 10, 1991, before the expiration of the three week period in which Mr. Sasse had been told to respond to Mr. Giordano's memorandum, the School Board met. At the December 10, 1991, meeting, all of the persons whose positions had been abolished on November 19, 1991, except Mr. Sasse, were recommended by the Superintendent for placement in other positions. The Superintendent's recommendation was approved by the School Board. The weight of the evidence failed to prove that the School Board took any action, other than Mr. Giordano's memorandum of November 22, 1991, to place Mr. Sasse in a vacant position which would insure that the School Board's contractual obligation to Mr. Sasse for the remainder of the fiscal year was fulfilled. By letter dated December 11, 1991, counsel for Mr. Sasse informed the Superintendent that Mr. Sasse understood (based upon Mr. Giordano's November 25, 1991, memorandum) that the Superintendent was considering placing Mr. Sasse in the Director of Co-Curricular Activities position. Counsel indicated that "Mr. Sasse would be willing to accept such an appointment provided that he remain at his contractually agreed price pay grade for the remainder of his contract period." Counsel went on to explain that the apparent difference in his current salary and the salary for the Director of Co-Curricular Activities he was being considered for of $7,363.20 for the second half of the fiscal year was contrary to his contract with the School Board and was not acceptable to Mr. Sasse. The School Board did not respond to counsel for Mr. Sasse's letter of December 11, 1991. As of December 10, 1991, the only vacant position available to Mr. Sasse that he had been informed of by the School Board was the Director of Co- Curricular Activities, which remained open and available as late as the day the final hearing in this case was conducted. Mr. Sasse was qualified, ready and able to serve as the Director of Co-Curricular Activities during the period from January 1, 1992, to June 30, 1992. He was also willing to serve in that position if the conditions of his contract with the School Board concerning salary were met and so notified the School Board. The School Board made no additional effort to place Mr. Sasse in any position as of January 1, 1992, or to otherwise fulfill its contract with him for the second half of the fiscal year. Mr. Sasse has remained willing an able to fulfill the terms of his employment contract with the School Board. No action has been instituted pursuant to Section 231.36, Florida Statutes, to terminate Mr. Sasse's contract for just cause. The School Board had a rule governing the manner in which employees may be terminated. Rule 6Gx37-2.36. This rule was not followed by the School Board. Request for Hearing. Mr. Sasse has never been informed that his position has been terminated and the School Board did not intend to take any further action to find a position for him which would fulfill their contract with him for the second half of the fiscal year. The School Board has also failed to provide notice to Mr. Sasse of the reason why his contract was not fulfilled, his right to request a hearing on the actions of the School Board or the time within which he must request a hearing. On January 27, 1992, Mr. Sasse served a Petition for Formal Administrative Hearing with the School Board. Although not served with twenty-one days after Mr. Sasse's position was abolished, it was served with twenty-one days after it first became definite that the School Board did not intend to comply with its contract with Mr. Sasse by placing him in another position or by any other means.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order in this matter providing for the payment to Carlos Sasse of all salary and benefits to which he would have been entitled had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992, It is further RECOMMENDED that the School Board make contributions to the State of Florida retirement system on behalf of Mr. Sasse to insure that he receives any retirements he would have been entitled to had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992. If the School Board is unable to comply with this recommendation, the Sc hool Board should pay Mr. Sasse an amount equal to the present value of any retirements he would have earned for the period January 1, 1992, to June 30, 1992. It is further RECOMMENDED that the School Board take the actions necessary to insure that Mr. Sasse receives credit toward retirement for the period January 1, 1992, to June 30, 1992. DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The School Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 8. 2 3. 3 4. 4 9 and 12. 5 15. 6 14. 7-10 See 13. 11 17-18 and 20-21. The suggestion that the final budget was adopted November 19, 1991, is not supported by the evidence. The final budget for the 1991-1992 fiscal year was, according to the Chief Financial Officer of the School District, adopted September 17, 1991. It was subsequently amended on November 19, 1991. 12 17. 13 Hereby accepted. 14-15 See 16. 16 21. Hereby accepted. Although this finding of fact is true, the evidence also proved that increases in expenditures were approved. For example, $363,000.00 of expenditures excluded from the 1990- 1991 budget were approved for the 1991- 1992 Budget. There were also new expenditures, referred to as "enhancements or expansions" of approximately $64,836.00 approved for 1991-1992. Hereby accepted. 19 23-24. 20 26. The Fund Balance referred to was contingent upon no cuts being made, which the facts proved did not occur. 21 27. 22 28. The last sentence is hereby accepted. 23 32 and 41. 24 34. 35 and 46. The last sentence is not relevant. Although correct, the reasons for the position cuts were those of one School Board member. The evidence failed to prove that the School Board adopted those reasons. 27 45. 28 35 and 37. 50. The last sentence is not relevant. 52 and hereby accepted. See 54. Mr. Sasse's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 Hereby accepted. 3-4 3. 5 5. But see 6. 6 28-29. 7 35 and hereby accepted. 8 36. 9 11, 18 and 20. 10 9 and 14. 11 38. 12-13 33 and 40. 14-15 See 47. 16 52 and hereby accepted. 17 50. 18 51. 19 52. 20 52 and 58. 21 54 and 57. 22 57. 23 59. 24 58. 25 7. 26 60. 27 61. 28 Hereby accepted. 29 41. 30 42. 31 43. 32 48. COPIES FURNISHED: C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. David Holder, Esquire 1408 North Piedmont Way Suite 100 Tallahassee, Florida 32312 Honorable Betty Castor Commissioner of Education The Captiol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Mr. Bill Woolley, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 =================================================================
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On November 19, 2008, Respondent Monroe County (County) adopted an amendment to its comprehensive plan by Ordinance No. 029-2008 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not ‘in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010. By virtue of this rescission, the FINAL ORDER No. DCA10-GM-121 instant controversy has been rendered moot, and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) 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, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 3 of 5 FINAL ORDER No. DCA10-GM-121 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 this day of , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert B. Shillinger, Jr., Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Derek V. Howard, Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Christine Hurley, AICP Growth Management Director Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 4 of 5 By Hand Delivery Richard E. Shine Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA10-GM-121
Findings Of Fact The Parties Petitioner, Florida League of Cities, Inc. ("League"), 201 West Park Avenue, Post Office Box 1757, Tallahassee, Florida, 32302, is a wholly-owned instrumentality of its member cities, which include more than 380 incorporated municipalities in the State of Florida. The League's bylaws require it to work for the effective administration and general improvement of municipal government in Florida. It represents its membership on statewide issues affecting municipal government. The Florida Administration Commission ("Commission"), the Respondent in this proceedings, is created by Section 14.202, Florida Statutes. 1/ It is composed of the Governor and the Cabinet, and is part of the Executive Office of the Governor. The Governor is chairman of the Commission. The Commission is responsible for insuring compliance by city and county governments with the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, ("the Act"). Sections 163.3167(2) and 163.3184(11), Florida Statutes, grant it the authority to impose sanctions on a county or municipality if its local comprehensive plan is not in compliance with the Act or has been submitted more than 90 days after its scheduled due date. Imposition of sanctions requires the affirmative vote of the Governor and any three other members of the Commission. Section 163.3164(1), Florida Statutes. Petitioner/Intervenor, Town of Pembroke Park ("Town"), is a duly incorporated municipality in Broward County, Florida which has approximately 6,500 residents. About 80 percent of its housing units are mobile homes. The Town prepared and submitted its proposed local comprehensive plan to the Department of Community Affairs out of time; according to Rule 9J-12.006(4), Florida Administrative Code, its plan was due on October 1, 1988. The Town therefore was subject to sanctions under the Act, as implemented by the "Non- Submission Policy" adopted by the Commission on October 24, 1989. The sanctions imposed on the Town by the Commission have been stayed by an appeal from the Commission's sanctions order. Petitioner/Intervenor, Village of Virginia Gardens ("Village"), Florida, is a duly incorporated municipality in Dade County, Florida. The Village prepared and submitted its proposed local comprehensive plan to the Department of Community Affairs out of time; according to Rule 9J-12.006(1), Florida Administrative Code, its plan was due on July 1, 1988. The Village submitted its plan on February 6, 1989. It was therefore subject to sanctions under the Act, as implemented by the "Non- Submission Policy" adopted by the Administration Commission on October 24, 1989. The sanctions imposed on the Village by the Administration Commission have been stayed by an appeal from the Commission's sanctions order. Respondent/Intervenor, Department of Community Affairs ("Department"), is a Department of the State of Florida headquartered in Tallahassee, Florida. It administers the Act, and has the responsibility under Chapter 28-39, Florida Administrative Code, to make recommendations to the Commission about local comprehensive plans, including whether they have been submitted late or fail to comply with the Act. The Act and its Sanctions Counties and cities are required under Section 163.3167(1) of the Act: To plan for their future development and growth. To adopt and amend comprehensive plans, or elements or portions thereof, to guide their future development and growth. To implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements thereof; and To establish, support and maintain administrative instruments and procedures to carry out the provisions and purposes of the Act. Each local government is required to prepare a local comprehensive plan "of the type and in the manner set out in" the Act. Section 163.3167(2), Florida Statutes. A "complete proposed comprehensive plan" is required to be submitted to the Department by the dates specified in the Department's rules, which are found in Chapter 9J-12, Florida Administrative Code. Section 163.3167(2), Florida Statutes. Any local government that fails to meet the schedule set for submission of its local comprehensive plan by more than ninety days, is subject to imposition of the sanctions described in Section 163.3184(11)(a) by the Commission, as is a local government whose comprehensive plan fails to comply with the Act. Those sanctions include direct[ing] state agencies not to provide funds to increase the capacity of roads, bridges, or water and sewer systems within the boundaries of those local governmental entities. . .specify[ing] that the local government shall not be eligible for grants administered under the following programs: The Florida Small Cities Community Development Block Grant Program, as authorized by Sections 290.0401 - 290.049. The Florida Recreation Development Assistance Program, as authorized by Chapter 375. Revenue sharing pursuant to Sections 206.60, 210.20, and 218.61 and Part I of Chapter 212, to the extent not pledged to pay back bonds. Section 16:3.3184(11)(a), Florida Statutes. The September 26, 1989, meeting of the Commission was the first time a request for sanctions for failure to submit timely plans came before the Commission for action. Before that time the Commission had adopted no rule or policy specifying which, if any, sanctions would be imposed for non-submission, or for submission of a plan not in compliance with the Act. The Commission took up the three cases of late submissions together. They involved the Town, the Village, and Indian Creek Village (which is not a party to this proceeding). They were agenda items 3, 4, and 5 for that meeting. Staff had recommended that the Commission withhold $191,012, or 44 percent of 1989-90 revenue sharing distributions due to the Town, because its plan was submitted on March 10, 1989 -- 5.3 months late (see the additional findings made at Finding 54, below). Staff also recommended that the Commission withhold $92,344, or 60 percent of the Village's 1989-90 revenue sharing distributions, because its plan was submitted on February 6, 1989 -- 7.2 months late. Rather than impose sanctions, the Commission requested staff to recommend a policy for sanctions. After a discussion, Commissioner of Education Castor stated, "I'll make a motion, Governor, that we ask staff to come back with a policy." The motion was seconded by Treasurer Gallagher and passed unanimously. Draft policies were developed by staff. The Policies at Issue The Administration Commission adopted a policy on October 24, 1989, describing the sanctions that would be imposed for late submission of local comprehensive plans (referred to as the "Non-Submission Policy"). It adopted a second policy on the sanctions to be imposed on local governments whose local comprehensive plans have been found not to be in compliance with the Act in an administrative hearing on the compliance issue (referred to as the "Non- Compliance Policy"). These matters were Commission agenda item number 6. Both policies, when referred to jointly, are the "Sanctions Policies". (League of Cities' Exhibit number 3). These policies state: POLICY FOR NONSUBMISSION CASES. Withhold 1/365 of the annual state/local revenue sharing program distribution for each day a local government fails to submit its proposed plan. The sanction would be calculated from the first day after the due date established by DCA Rule 9J-12, Florida Administrative Code, to the date the proposed local plan is actually submitted. Procedure: Under the Administration Commission Rule (Chapter 28-39, Florida Administrative Code), DCA notifies the Administration Commission within 45 days of a local government's failure to submit its plan by the due date. Within 30 days, a meeting is held by Commission staff with Department of Community Affairs and Regional Planning Council staff, and representatives of the local government. Fifteen days later DCA provides a recommendation to the Commission regarding sanctions. The Administration Commission may act to impose sanctions described above no sooner than 90 days after the local plan is due, but the sanctions are calculated from the due date established by DCA Rule 9J-12, Florida Administrative Code. EXCEPTION FOR LOCAL GOVERNMENTS THAT DID NOT HAVE ADVANCE NOTICE OF ADMINISTRATION COMMISSION POLICY. Upon the DCA's issuance of the Notice of Intent to find the plans IN COMPLIANCE or the Administration Commission's final determination that the plan is IN COMPLIANCE if a challenge to the DCA's Notice is filed with the Division of Administrative Hearings (DOAH) ("final agency action" in either case), DOR would return 90 days' withheld revenue. Procedure: The Administration Commission would authorize the automatic return of revenue upon DCA's notification to the Secretary of the Commission and the Department of Revenue (DOR) that a plan is IN COMPLIANCE. If the plans are found NOT IN COMPLIANCE by the Administration Commission, no withheld revenue would be returned and the Administration Commission would impose sanctions as described in 2. * * * * POLICY FOR NONCOMPLIANCE CAFES. A local plan will come under the jurisdiction of the Administration Commission if it is found NOT IN COMPLIANCE after a Division of Administrative Hearings (DOAH) hearing. If the DCA issues a Notice of Intent to find the plan NOT IN COMPLIANCE and the Commission ultimately determines that the plan is NOT IN COMPLIANCE, the Commission policy would be to withhold 1/365 of the annual state/local revenue sharing distribution for every day that the plan is out of compliance beginning with the date DCA issued its Notice of Intent to find the plan NOT IN COMPLIANCE until the date the local government has amended its plan to incorporate the remedial measures specified by the Administration Commission's Final Order and the DCA issues its Notice of Intent to find the amended plan IN COMPLIANCE. If the DCA issues its Notice of Intent to find a plan IN COMPLIANCE but the Commission ultimately determines that the plan is NOT IN COMPLIANCE, the Commission would specify in its final order remedial measures which must be incorporated into the plan by a specific date, and if the remedial measures were not incorporated by the specified date, the Commission would withhold 1/365 of the annual state/local revenue sharing distribution for every day that the plan is out of compliance beginning with the date the Commission entered its final order until the date the plan is amended to incorporate the remedial measures and the DCA issues its Notice of Intent to find the plan IN COMPLIANCE. Additional sanctions would also be considered by the Commission based upon the record in each case. The additional sanctions available under Section 163.3184(11), Florida Statutes, include ineligibility for all state expenditures to increase capacity of roads, bridges, and water and sewer systems within the local government's jurisdiction. (emphasis original) The additional factors the Commission may apply to mitigate or enhance the penalty under the final paragraph of the sanctions policy await case-by-case development. At the October 24, 1989, meeting, Treasurer Gallagher moved as follows: "I think this policy recommendation is a good starting point to get that compliance, and I still think we need to review each case individually, so we can get a feel how this process operates, but I think this message in regards to how serious the Cabinet is in regards to compliance needs to be sent. Therefore I will move the policy." Secretary of State Smith seconded the motion, which carried unanimously. (League Exhibit 3 at 73, 88). The Gallagher motion not only adopted the policies, but re-affirmed the Commission's intention to engage in a case-by-case analysis of what sanctions are appropriate in each case. At the very least, the Sanction Policies will be utilized by the Staff (both the Department of Community Affairs and the Office of Planning and Budgeting, Executive Office of the Governor) as a starting point in determining what sanctions should be applied to a local government which submits an untimely comprehensive plan or a plan found to be not in compliance with the Act. Prior to the adoption of the Sanction Policies, the Commission did not: Provide notice in the manner required by Section 120.54, Florida Statutes, of its intent to adopt those policies. Provide or prepare a short and plain explanation of the purpose and effect of those policies. Prepare an economic impact statement concerning those policies. Provide prior written notice to any municipality or county of the adoption of those policies. Provide notice in the Florida Administrative Weekly of the proposed adoption of those policies. Follow any of the procedures outlined in Section 120.54, Florida Statutes. Section 163.3167(2), Florida Statutes, requires all of the League's members to submit a complete proposed comprehensive plan under the schedule adopted in Rule 9J-12.006, Florida Administrative Code. The Administration Commission could impose sanctions on any League member who submits its plan more than 90 days late or submits a plan which fails to comply with the Act. On October 24, 1989, when the "Non-Compliance Policy" was adopted, there were no cases seeking the imposition of sanctions against a local government whose timely local comprehensive plan had been found not to be in compliance with the Act, in an administrative hearing on the compliance issue. There were pending cases arising from the failure of cities such as the Town and the Village to submit timely plans. On October 24, 1989, after the adoption of the "Non-Submission Policy," the Commission applied sanctions based on the policy, without variation, to the Town, the Village, and to Indian Creek Village. These actions were agenda items number 7, 8, and 9. The policies adopted on October 24, 1989, are identified as general policies in the Commission's agenda for October 24, 1989, and in the minutes of the Commission for that meeting. No further guidelines have been established by the Commission itself, by the Department of Community Affairs or by the Office of Planning and Budgeting, Executive Office of the Governor, describing the conditions under which the Commission will deviate from the Sanctions Policies when considering an individual case. The Sanctions Policies were adopted, in part, to send a message to municipalities and counties about what would happen if they failed to submit plans or their plans are found not to be in compliance with the Act. The Department of Community Affairs has communicated the Sanctions Policies to all the municipalities and counties by a technical memorandum, which was distributed to all municipalities and-counties. (League Exhibit number 11). That memorandum states that these policies will be applied to local governments which submitted untimely plans, or plans determined not to comply with the Act. No notice or guidance is contained in these communications about the criteria the Commission might use to deviate from the policies. In December, 1989, the Department sent a letter to all municipalities and counties that were late in submitting their local comprehensive plans, advising them of the sanctions policies. Section 163.3184(11)(a)3., Florida Statutes, authorizes the Commission to order that the local government be ineligible to receive revenue sharing funds. Prior to October 24, 1989, the Administration Commission had adopted no policy or rule announcing its interpretation of when sanctions for late submission or non- compliance would begin to run. Under the "Non-Submission Policy" sanctions begin to run from the first day after the due date established by Rule 9J-12, Florida Administrative Code. No sanctions are imposed, however, if the plan is fewer than 90 days late. Under the "Non-Compliance Policy", fines begin to run from the date the Department issues a notice of intent to find the plan not in compliance with the Act. The Effect of the Policies Generally For cities, the term "state/local revenue sharing" as used in the Sanctions Policies includes: 1/2-cent sales tax 11-cent cigarette tax Gas tax imposed pursuant to Section 206.605, Florida Statutes. 2-cent cigarette tax The single occasion the Non-Submission Policy has been applied was on October 24, 1989, and the only counties or cities penalized have been the Town, the Village, and Indian Creek Village. As of the date of final hearing in this case, the "Non-Compliance Policy" had never been applied to any local government. Estimated statewide state/local municipal revenue sharing distributions to all municipalities within the state for the 1989-1990 fiscal year are $477,107,879. (A breakdown for individual municipalities is found in League Exhibits number 12, Local Government Financial Handbook at 14-29, tables a, b, c, and 105- 111). The actual amount of state/local revenue distributed statewide for the 1988-1989 fiscal year was $471,641,735, as reported by Department of Revenue to the Comptroller for publication in the Florida Comprehensive Annual Financial Report. The breakout for individual cities is found in League Exhibit number 14. For the state as a whole, municipal revenue sharing constitutes between 13 percent and 15 percent of municipal governmental revenues. For the state as a whole, 34 percent of municipal governmental expenditures are used to fund police and fire protection. Section 163.3184(11) authorizes sanctions for failure to submit a local comprehensive clan or for failure to submit a plan which complies with the Act, and permits the revenues in question to be cut off in the middle of a fiscal year, when a municipality is unable to raise ad valorem taxes. There are a limited number of other sources available to a municipality which may be used as general governmental revenue. Litigation over whether a local comprehensive plan complies with the Act can take a significant amount of time. For example, a notice of intent to find Charlotte County's local comprehensive plan not in compliance was issued by the Department on February 9, 1989. The case was heard, a Recommended Order issued, and the matter was set to go before the Administration Commission on January 24, 1990. The Hearing Officer found the plan not to be in compliance with the Act. The Department has recommended that no monetary sanctions be imposed can the county, but that the county take a number of specific actions to amend the comprehensive plan. As another example, administrative litigation over the comprehensive plan submitted by City of Cocoa took approximately 10 months from the time a notice of compliance was issued by the Department, until it was determined that the plan actually was not in compliance, and the Recommended Order came before the Administration Commission for sanctions. It is reasonable to assume that from the time that the Department issues a notice of intent to find a comprehensive plan not in compliance with the Act until the time the plan comes before the Administration Commission will be at least six months, and perhaps longer. The potential loss of revenue sharing for a period of six or more months would have a substantial effect on a municipality's budget. The potential loss of revenue for a period of six or more months is a substantial disincentive to a municipality's willingness to pursue a hearing and challenge the Department's determination when the Department issues a notice finding a local comprehensive plan not in compliance with the Act. Pembroke Park's Compliance Efforts In 1987, the Town initiated its efforts to prepare a local comprehensive plan pursuant to the Act to guide the future development of the Town. 2/ The Town is approximately 97 percent built out and contains approximately 30 acres of vacant land available for development. The Town initially contracted with the South Florida Regional Planning Council ("the Council") to develop Phase 1 of a plan for the Town. The Council forwarded the first part of a revised comprehensive plan in February, 1988, to the Department. The Town's Mayor and some members of the Pembroke Park Town Commission had questions about parts of that plan, and believed, at the time, that it would be more efficient to have an in-house person prepare the rest of the Town's plan. In March 1988, the Pembroke Park Town Commission formally decided that the Town should not use the Council to complete preparation of its local comprehensive plan. Milan Knor, a professional engineer who served as the Town's Director of Operations, was awarded a contract to prepare the remainder of the plan. Under the provisions of Rule 9J-12.006(4), Florida Administration Code, the Town's proposed comprehensive plan was due to be submitted to the Department on or about October 1, 1988. Mr. Knor did not forward a proposed comprehensive plan to the Department until December 28, 1988. The Department received this document on or about January 9, 1989. On January 17, 1989, the Department sent a letter to the Mayor of the Town acknowledging receipt of the Town's proposed comprehensive plan, and noting that the plan documentation was missing certain plan elements. This letter also stated that a complete plan was to be submitted by the Town to the Department by January 31, 1989. That same day, the Department filed a Notice of Non-submission of Proposed Comprehensive Plan with the Commission, because the Town had failed to comply with the submission schedule for its proposed comprehensive plan. On January 23, 1989, the Commission sent a letter to the Mayor of the Town acknowledging a) receipt of the Department's notice that the Town had failed to meet the schedule set for submission of its local comprehensive plan by more than 90 days, and b) that the Department had requested the Commission to impose sanctions on the Town. That letter from the Commission required the Town to submit an explanation of why it did not submit a timely plan. It also informed the Town that within 15 days of receipt of the explanation, a meeting would be held which would operate as an informal proceeding under Section 120.57(2), Florida Statutes, unless the Town's explanation showed that the plan was not late. A recommendation on sanctions would be made to the Commission within 20 days following the meeting. On or about January 27, 1989, the Town forwarded a revised plan, including the various elements requested by the Department on January 17, 1989. On or about February 8, 1989, the Department notified the Town that the plan was substantially complete, but that four additional pieces of information were needed, as well as a resolution from the Town Commission formally transmitting the plan to the Department. On March 9, 1989, the Town submitted the additional information requested to the Department along with a resolution formally transmitting the material. The Department regards March 9, 1989, as the date the Town submitted its complete plan. In June of 1989, the Department notified the Town that it had completed its review of the proposed comprehensive plan and enclosed the Department's objections, recommendations, and comments ("ORC") concerning the Town's comprehensive plan. On July 14, 1989, Beth Lines, Policy Coordinator for the Office of Planning and Budgeting and member of the Commission staff, sent a letter to the Mayor of the Town confirming July 19, 1989, as the date the meeting would be held to discuss the issues raised in the Notice of Non-Submission filed by the Department. This letter did not repeat the notice given in the letter of January 23, 1989, that this meeting would constitute a Section 120.57(2), Florida Statute, informal hearing or that the Town had to request an evidentiary hearing to consider disputed factual issues at that time, or forever waive its right to do so in the future. The Town submitted a chronology to the Department on July 27, 1989, containing the Town's explanation of why its plan was late. On August 3, 1989, Thomas Pelham, Secretary of the Department, recommended that the Commission impose sanctions on the Town for failing to submit its proposed comprehensive plan within 90 days of the scheduled due date. Secretary Pelham's recommendation considered both the written explanation the Town had submitted and comments which had been made during the July 19, 1989, meeting with Town officials, but he found no good reason for the Town's failure to submit a timely plan. Adoption of Rule 28-39.006 On August 7, 1989, Rule 28-39.006, Florida Administrative Code, became effective. The new rule set out the procedure that would be followed whenever a local government fails to meet its scheduled deadline for submission of its comprehensive plan. Before that time, no rule had been promulgated describing the procedure the Commission would follow in dealing with a local government's failure to meet the deadlines for submission of its comprehensive plan. Further Administrative Steps Against the Town In September, 1989, Patricia Woodworth, Secretary/Clerk to the Commission, submitted a proposed final order to the Commission containing a finding that the Town's proposed comprehensive plan was not timely submitted and requesting the Commission to withhold state/local revenue-sharing funds from the Town. On September 18, 1989, the Town submitted to the Department its response to the Department's objections, recommendations and comments on the Town's comprehensive plan. (See Finding 46, above). In that response, the Town expressed its desire for continued Department participation since Town's goal was to have its comprehensive plan deemed to be "in compliance" with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. On September 19, 1989, in response to the Commission's proposed final order (see Finding 51, above), Frank Matthews, acting as counsel for the Town, submitted to the Commission staff a different proposed final order regarding the Town's failure to timely submit its proposed local government comprehensive plan. On September 26, 1989, the Commission considered, but did not adopt, Woodworth's proposed final order. Representatives of the Town appeared at that meeting and objected to the proposed order and the sanctions it recommended. The Commission heard argument on the sanctions issue from the Town's attorney, Mr. Matthews, a Town Commissioner, a representative from the Florida Audubon Society and from Secretary Pelham. The Town argued that its plan was submitted only 9 days after what it characterized as the "90-day statutory grace period" granted to local governments in Section 163.3167(2), and explained why it believed monetary sanctions were inappropriate; the representative of the Audubon Society argued that the statute gave no grace period to local governments whose plans were more than 90 days late; Secretary Pelham explained why he believed monetary sanctions were warranted. The Commission deferred action and instead directed its staff to prepare a policy for the Commission to apply in cases where local governments fail to timely submit proposed comprehensive plans. (See Finding 8, above). On September 29, 1989, Frank Matthews, acting as counsel for the Town, sent a letter to Ms. Woodworth, Secretary/Clerk to the Commission, asserting that the Town had not been provided a clear point of entry into the administrative process to contest any proposed final agency action which could adversely affect the Town's substantial interests. The letter recited the Town's understanding that any final agency action occurring in the future would be properly noticed, and that the Town would have 14 days to avail itself of administrative remedies under to Section 120.57, Florida Statutes. On that same date, Mr. Matthews sent a letter to Beth Lines, a member of the Commission staff, asking that the Town be notified of any working groups or meetings held to develop or discuss the sanctions policy, so the Town could participate. Both of these letters were never answered. On October 10, 1989, the Mayor of the Town sent a letter to Paul Bradshaw of the Department stating that the Department was not using the correct mailing address for all correspondence to the Mayor's office. Consequently, the Mayor expressed concern that certain past correspondence, such as the October 7, 1988, letter from the Department, had never reached his office. The letters were properly addressed; the letters were delivered to the Town. The mayor's implication to the contrary is rejected by the Hearing Officer. On October 18, 1989, the Town finally adopted its local comprehensive plan, including land development regulations, and hand-delivered these materials to the Department. On October 24, 1989, when the Commission adopted the sanctions policy for late submissions of comprehensive plans, it heard once again from interested parties before deciding whether to accept the recommendations of the Department and Commission staff on a sanctions policy. A representative of the League of Cities spoke, along with counsel for the Town and a representative of the Department. On October 24, 1989, approximately one hour after adopting the Non- Submission and Non-Compliance sanctions policies, the Commission considered for the second time the Department's recommendation on imposition of sanctions on the Town. The Commission applied its Non-Submission Policy, and ordered that $190,299 in state revenue sharing funds withheld, an amount equal to 160/365 of those funds. The 160 numerator represents the number of days the Commission found the Town was late in submitting its proposed comprehensive plan. The Town was provided the opportunity to recover 90/365 of the amount withheld (approximately $107,043) if and when the Department found the plan adopted by the Town (see Finding 57) to be in compliance with the Act and Rule 9J-5, Florida Administrative Code. On November 6, 1989, the Town of Pembroke Park received a copy of the executed Final Order, No. AC89-3 dated November 1, 1989. This order embodies the sanctions the Commission imposed on October 24, 1989. The Rule Challenge On November 14, 1989, The Florida League of Cities, Inc., filed a petition pursuant to Section 120.56, Florida Statutes, requesting a determination of the validity of both Rule 28-39.006(3), Florida Administrative Code, and the Sanctions Policies adopted by the Commission on October 24, 1989. This petition was filed with the Division of Administrative Hearings ("DOAH"). On November 17, 1989, the Town filed its Motion to Intervene, and requested party status in that rule challenge proceeding. Additionally, the Town moved to consolidate with the rule challenge a separate petition it filed with the Commission on November 14, 1989, for a Section 120.57(1), Florida Statutes, administrative hearing, challenging the sanctions which the Commission had imposed. On November 30, 1989, the Hearing Officer granted the Town's motion to intervene, but declined to consolidate the rule challenge with the Town's petition for a Section 120.57(1), Florida Statutes, administrative hearing. The Commission had not yet determined whether the petition for a formal hearing would be granted; as a result it had not referred the matter to DOAH. Consequently, there was then no other proceeding pending at DOAH to be consolidated with the rule challenge. Similarly, on December 1, 1989, the Village of Virginia Gardens filed its motion to intervene in the rule challenge proceeding. The motion was granted on December 5, 1989. Finally, on December 4, 1989, the Town received a copy of the Commission's proposed order denying its Petition for Formal Administrative Hearing on the sanctions which had been imposed. On December 5, 1989, the Town filed a response to that proposed order, and argued that the Commission never gave it a clear point of entry into the administrative process. The Commission disagreed, and on December 8, 1989, denied the Town's request for a formal hearing. The Commission found the Town had a clear point of entry based on its January 23, 1989, letter to the Town (see Finding 43, above), and that the Town waived its right to a formal hearing by participating in the proceedings before the Commission on September 26 and October 24, 1989, without requesting a formal hearing. On December 6, 1989, the Town was notified that its adopted local government comprehensive plan complied with the requirements of Chapter 163, Florida Statutes. As a result of the Department's finding of compliance, the state monies to be withheld from the Town pursuant to the Commission's order were reduced to $83,255 (see Finding 59, above). On December 8, 1989, the Commission entered its final order denying the Town's request for a formal hearing. Consequently, on January 4, 1990, the Town filed a Notice of Appeal with the District Court of Appeal, First District, appealing the denial of its petition for a Section 120.57(1) hearing.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File and relinquishing jurisdiction in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions 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, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-008 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 to the persons listed below jn the manner described, on this — day of January, 2011. yy A fas 4 Paula Ford, Agency Clerk DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Thomas A. Cloud, Esq. Clayton Bricklemeyer, Esq. City Attorney, Polk City David Smolker, Esq. GRAY ROBINSON, P.A. Bricklemeyer & Smolker, P.A. Post Office Box 3068 500 East Kennedy Boulevard, Suite 200 Orlando, Florida 32802-3068 Tampa, Florida 33602-4708 tcloud@gray-robinson.com claytonb@bsbfirm.com davids@bsbfirm.com Jack P. Brandon, Esq. Michael T. Gallaher, Esq. Peterson & Myers, P.A. Post Office Box 1079 Lake Wales, FL 33859-1079 jbrandon@petersonmyers.com mgallaher@petersonmyers.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, Case Nos. 10-0045GM 10-2797DRI vs. CITY OF POLK CITY, Respondent, and POLK CITY ASSOCIATES, LLC, AND COLE'S PROPERTY, LLC, Intervenors. ORDER CLOSING FILES This cause having come before the undersigned on the Notice of Voluntary Dismissal, filed January 10, 2011, and the undersigned being fully advised, it is, therefore, ORDERED that the files of the Division of Administrative Hearings in the above-captioned matter are hereby closed. DONE AND ORDERED this llth day of January, 2011, in Tallahassee, Leon County, Florida. Blac aad J. LAWRENCE JOHNSTON 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 EXHIBIT Filed with the Clerk of the Division of Administrative Hearings this llth day of January, 2011. COPIES FURNISHED: David L. Jordan, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Jeffery Sullivan, Esquire Stidham & Stidham, P.A. 150 East Davidson Street Bartow, Florida 33831 Jack P. Brandon, Esquire Peterson & Myers Post Office Box 1079 Lake Wales, Florida 33859-1079 K. Clayton Bricklemyer, Esquire Bricklemyer, Smolker & Bolves, P.A. 500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602 Thomas A. Cloud, Esquire Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802-3068
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO GECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1} (C) AND 3.1109. 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, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. aa/ld/2ae9 1g:a4 B589222679 DCA LEGAL Sep 14 2009 13:52 PAGE Final Order Number DCAQ9-GM-313 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 to the persons listed below in the manner degcribed, on this day of September, 2009. a Paula Ford, fAgency Clerk ARTMENT OF COMMUNITY APFAIRS 2555 shumard Cak Boulevard Tallahassee, Florida 32399-2100 {850) 488-0410 By U.S. Mail and Flectronic Mail: Jerri A. Blair, Esq. W. James Gooding, III, Esquire City Attorney Gilligan, King, Gooding & City of Wildwood Gifford, P.A. Post Office Box 130 1531 Southeast 36th Avenue Tavares, FL 32778-3809 Ocala, Florida 34471 jblair710e@acl .com gooding@ocalalaw.com William Hyde, Esq. Gunster Yoakley & Stewart, FA 215 § Monroe Street, Suite 618 Tallanhagsee, Florida 32301-1804 Pax: 850-576-0902 hydwil@gunster.com By Hand Delivery: By Interagency Mail: David L. Jordan, Esq. The Honorable Assistant General Counsel go. Lawrence Johneten DEPARTMENT OF COMMUNITY AFFAIRS Administrative Law Judge 2555 Shumard Oak Boulevard Div. of Administrative Hearings Tallahassee, Florida 32399 The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 a3/ag
Findings Of Fact The Petitioner Florida Farmworker's Council, Inc., applied or funding under the Community Service Block Grant (CSBG) Program for the fiscal year beginning July 1, 1982, and ending June 30, 1983, with the Respondent Department of Community Affairs. Since the Respondent Department had recently assumed administration of the program from the federal government and neither rules nor funding information was available, the Department entered into an agreement with the Petitioner for interim funding covering a two-month period. The first month funding of $33,727.25 was released to the Petitioner subject to certain conditions. When the Department determined that the conditions were not fully met, the second month's funding was not released. Subsequently, as a result of various reviews, the Department determined that the original application was unacceptable, and a determination was made to withhold the remainder of the grant request totaling $370,999.75. An informal hearing was held in Fort Lauderdale, Florida, and resulted in a Final Order which gave the Petitioner an opportunity to resubmit its application with conditions. Following an exchange of correspondence and meetings between the parties, the Department agreed to fund the Council to the extent it operated a program in accordance with state and federal lab and pursuant to the program described in its application. A program review audit was conducted by the Department in June, 1983. In the audit is was concluded that while considerable funds were expended, the Petitioner's program activities were at a level which was unacceptable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Department denying the Petitioner's request for funding in the amount of $370,999.75, which represents eleven months of funding for fiscal year 1982-1983. DONE and ENTERED this 14th day of December, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of December, 1983. COPIES FURNISHED: W. George Allen, Esquire 116 Southeast Sixth Court Post Office Box 14738 Fort Lauderdale, Florida 33302 Mary Clark, Esquire General Counsel Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301 John M. DeGrove, Secretary Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to rescind a "second election" to invest in the Florida Retirement System (FRS) Investment Plan on the ground that, when filed, the second election failed to comply with the requirements of sections 121.4501(4)(g) and 121.021(17)(b), Florida Statutes (2012).
Findings Of Fact On August 9, 2004, Petitioner first became eligible to participate in the FRS. At the time, she was employed by Monroe County in its building department. On February 21, 2005, Petitioner timely elected to participate in the FRS Pension Plan, which is a defined benefit plan, rather than the FRS Investment Plan, which is a defined contribution plan. Petitioner participated in the FRS Pension Plan until the events described in this paragraph. Her last day of work was in June 2012, although she did not formally terminate her employment until December 6, 2012. At the time, Petitioner was experiencing health problems that Petitioner worried would prevent her from continuing to perform the duties of her job with Monroe County. In July 2012, Petitioner called the FRS financial guidance line and discussed transferring to the FRS Investment Plan, so she could withdraw funds to live on during a period of extended unemployment for health reasons. Even though Petitioner did not work after June, from November 1 through 6, she received pay for 13.25 hours of unused sick leave and 5 hours of unused annual leave. For the remainder of the month, Petitioner was on leave without pay. On November 29, Petitioner called the FRS financial guidance line to discuss again transferring to the FRS Investment Plan. An FRS representative warned her that, to make an election, she would have to be "employed with the FRS service credit" to make a second election. On the same day, Petitioner filed a second election with Respondent to transfer from the FRS Pension Plan to the FRS Investment Plan. In a form mailed on December 3, 2012, Respondent acknowledged receipt of Petitioner's second election, effective December 1, 2012. There is some dispute as to whether Respondent adequately advised Petitioner of any grace period to rescind her second election, but she did not attempt to do so until over three years had elapsed, as noted below. On April 5, 2013, Petitioner called the FRS financial guidance line and asked about withdrawing some of the funds in her FRS Investment Plan. She was informed that, if she did so, she could not defer compensation to this account on regaining FRS-covered employment. In September or October 2015, Petitioner obtained FRS-covered employment at the library of the City of Islamorada. On November 1, 2015, Petitioner called the FRS financial guidance line and asked about rescinding her second election. An FRS representative told her that she would have to submit a request for "intervention." On February 10, 2016, Petitioner filed a request for intervention, stating that no one had warned her that, if she withdrew any funds from the defined contribution account, she could not again defer compensation to this account. By letter dated March 4, 2016, Respondent denied the request solely on the ground that Petitioner had earned service credit for the month of November 2012 when she filed her second election, so, since she had not yet terminated employment, her second election was lawful.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing Petitioner's request for hearing on Respondent's denial of her request for intervention to allow her to transfer from the FRS Investment Plan to the FRS Pension Plan. DONE AND ENTERED this 29th day of September, 2016, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 29th day of September, 2016. COPIES FURNISHED: T. A. Delegal, III, Esquire James C. Poindexter, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 (eServed) Brian A. Newman, Esquire Pennington, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32302 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
