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 On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010.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Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).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.
The Issue Did the Department of Children and Family Services (Department) improperly deny funds to Maurice Parkes for the purchase of bottled water?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family care program, and the provisions of in-home subsidies. Petitioner is a developmentally disabled child who lives in his family's home and receives numerous services from the Department for his developmental disability, medical, and physical problems. The services presently being furnished to Petitioner are funded through the Medicaid Waiver Program. The bottled water at issue is not funded through the Medicaid Waiver Program and would have to be funded through General Revenue funds. General Revenue funds appropriated by the legislature for the fiscal year 2001-2002 to the Department have largely been moved to the Medicaid Waiver Program to obtain the benefit of federal matching funds, which are provided at the rate of 55 cents for each 45 cents of state funds. The use of General Revenue Funds to obtain matching federal funds for the Medicaid Waiver Program allows the Department to service some of those developmentally disabled clients that are presently eligible for the Medicaid Waiver Program but have not been receiving services due to lack of funding. There are no uncommitted funds in the General Revenue category of the Developmental Services' budget that could be used to fund the purchase of bottled water for Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request to provide him with bottled water. DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2002. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Maurice Parkes c/o Erika Parkes 2229 Bonita Way, South St. Petersburg, Florida 33712 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue Was the Department of Education's (Department) refusal to review and evaluate Nationwide Credit, Inc.'s (Nationwide) response to the Department's Request for Proposal, Collection Services for Defaulted Florida Guaranteed Student Loans and Delinquent Florida Teacher Scholarships Loans, No. 99-06 (RFP) contrary to governing statutes and rules, clearly erroneous, contrary to competition, arbitrary, or capricious? Was the Department's failure to consider the reason for Nationwide's untimely delivery of its response to the RFP contrary to governing statutes and rules?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Nationwide is a foreign corporation authorized to do business in the State of Florida. Nationwide is in the business of collecting defaulted student loans and has worked with the State of Florida, and specifically the Department, for approximately nine years. On October 9, 1998, the Department issued RFP No.99-06, which solicited proposals for the provision of collection services for defaulted student loans. The technical requirements and requests found in the RFP were prepared by the Office of Student Financial Affairs (OSFA) which was the section within the Department requesting the services and the section which ultimately performed the review and evaluation of the responses to the RFP. The initial deadline for receipt of responses to the RFP was 3:00 p.m. Eastern Standard Time (EST) on December 3, 1998. The responses were to be delivered to the Department's Office of Purchasing for initial inspection and distribution to OSFA. The Department, through four separate RFP addenda, received and accepted by Nationwide, revised and postponed the response deadline until January 20, 1999, at 3:00 p.m. EST. The postponement was caused by the delay of the Department responding to questions posed by prospective vendors during the question and answer portion of the RFP procurement process. Nationwide had been prepared to submit it proposal to the Department on the date of the previous deadlines. The Department scheduled the deadline for receipt of proposals at 3:00 p.m. to accommodate those prospective vendors who used third-party delivery services. The response review process as established by the RFP consisted of the following: (a) a review of the technical components to be completed by February 3, 1999; (b) a cost proposal evaluation to be completed by February 9, 1999; and (c) a posting of intended award by February 16, 1999. In accordance with the RFP, multiple contracts were to be entered into based on the highest ranked responses. The actual signing of these contracts was not to occur until March 1999, after approval of the awards by the State Board of Education. Nationwide has previously provided the Department with the same services called for by the RFP. It was Nationwide's wish that it continue to provide those services and accordingly, its employees expended between 50 and 70 hours preparing Nationwide's response. On January 19, 1999, Nationwide, from its office in Marietta, Georgia, utilized a third party, Federal Express, to deliver Nationwide's response to the Department's RFP. Nationwide's general business practice is to use Federal Express and there has never been a problem with late delivery. Nationwide does not have an office in Tallahassee, Florida. Nationwide's only Florida office is in south Florida. Nationwide directed Federal Express to ship its response to the RFP by Priority Overnight Service and further directed Federal Express to deliver Nationwide's response to the RFP to the Department by 10:00 a.m. EST on January 20, 1999. These instructions to Federal Express were clearly reflected on the Airbill. Federal Express picked up Nationwide's proposal at 1:20 p.m. EST on January 19, 1999. Due to an error in the Federal Express distribution process, Nationwide's response to the RFP was not delivered to the Department until January 21, 1999, at 10:41 a.m. EST. Nationwide did not contact the Department on January 20, 1999, after 10:00 a.m. EST (the time Federal Express was to deliver Nationwide's proposal) to determine if its proposal had been delivered timely by Federal Express. There was sufficient time between 10:00 a.m. and 3:00 p.m. on January 20, 1999, for Nationwide to hand deliver its proposal to the Department had Nationwide been aware that its proposal had not been delivered by Federal Express as requested by Nationwide. Eighteen responses were submitted to the Department's Office of Purchasing prior to 3:00 p.m. EST on January 20, 1999. In order to ensure that no vendor had access to another vendor's proposal, the proposals were locked in a secured room. At 3:01 p.m. EST on January 20, 1999, the Office of Purchasing physically opened the 18 responses that were timely submitted and in its possession. The Office of Purchasing then conducted an initial review which included a tabulation of the responses to ensure that all responses satisfied procedural requirements. The timely proposals were also inspected to ensure that the appropriate transmittal letter was enclosed. The Office of Purchasing did not open the technical or price components of the responses. Once the initial review was completed by the Office of Purchasing, the proposals were sent to OSFA for purposes of conducting the detailed technical review contemplated by the RFP. The initial review by the Office of Purchasing took two days, and the proposals were not forwarded to OSFA until around January 25, 1999. At the time Nationwide's proposal was received by the Department, the Office of Purchasing was still in the process of completing its initial review. None of the timely proposals had been forwarded to OSFA for detailed review at this time. By letter dated January 27, 1999, the Department advised Nationwide that its proposal had been received after the deadline and that its proposal must be "retrieved no later than February 15, 1999." At this time, the evaluation of the technical and costs proposals by OSFA had not been completed. The Department similarly advised another vendor whose proposal had been received 30 minutes after the deadline. Nationwide did not retrieve its proposal, and it still remains in an unopened state with the Department. The Department rejected Nationwide's proposal without any consideration being given to the circumstances surrounding the untimeliness of Nationwide's proposal. At the time Nationwide's proposal was rejected, the Office of Purchasing had knowledge of the fact that Nationwide had submitted its proposal to Federal Express in advance of the due date and in sufficient time to be delivered timely to the Department. On February 8, 1999, after contacting the Office of Purchasing to determine the reasons for the rejection of its proposal, Nationwide provided the Department with a written explanation from Federal Express explaining why Nationwide's proposal was untimely. Nationwide then requested the Department to consider the circumstances and use its discretion to waive the late filing and review the proposal. By letter dated February 12, 1999, the Department advised Nationwide that it was unable to consider Nationwide's untimely proposal. It is the Department's policy that, under the purchasing rules of the State of Florida, it should never consider or review a proposal received from a vendor after the date and time specified in the RFP regardless of the reason for the untimeliness. However, the Department did indicate that it may waive that policy where the untimeliness is due to an "act of God," such as a tornado or hurricane, which prevented timely delivery or resulted in the Department's office being unable to accept delivery in a timely fashion. General Conditions, Paragraph 3, of Form PUR-7033, revised 6/1/98, provides in relevant part as follows: PROPOSAL OPENING: Shall be public, on the date, location, and the time specified on the acknowledgement form. It is the proposer's responsibility to assure that this proposal is delivered at the proper time and place of the proposal opening. Proposals which for any reason are not so delivered, will not be considered. (Emphasis furnished.) Section 40.16 of the RFP provides as follows: PUBLIC OPENING OF PROPOSALS Each proposal will be dated, time-marked, and logged by the department as received. Each will also be examined to verify that it is properly addressed and sealed. Any proposal received after the specified date and time for receipt of proposals will be rejected and returned unopened to the contractor. (Emphasis furnished.) Section 40.17 of the RFP provides as follows: REJECTION OF PROPOSALS Proposals which do not conform to the requirements of this Request for Proposal may be rejected by the department. Proposals may be rejected for reasons which include, but are not limited to, the following: * * * The proposal is received late. (Emphasis furnished.) Section 40.15 of the RFP provides as follows: 40.15 ACCEPTANCE OF PROPOSALS * * * The department also reserves the right, in its sole discretion, to waive minor irregularities in proposals. A minor irregularity is a variation from the Request for Proposal which does not affect the price of the proposal, or give the contractor an advantage or benefit not enjoyed by other contractors, or adversely impact the interest of the department. (Emphasis furnished.)
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 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 2 FINAL ORDER NO. DCA11-GM-069 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. 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 furnishe Oo the persons listed below in the manner described, on this day of April, 20 Paula Ford, Ageydy Clerk DEPARTMENT OF COMMUNITY AFFAIRS (p~ asse Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Garth C. Coller, Esq. Jacob D. Varn, Esq. County Attorney Linda Loomis Shelley, Esq. Geoffrey T. Kirk, Esq. Karen Brodeen, Esq. Assist. County Attorney FOWLER WHITE BOGGS, P.A. OFFICE OF THE Post Office Box 11240 HERNANDO COUNTY ATTORNEY Tallahassee, FL 32302 20 North Main Street, Suite 462 ivam@fowlerwhite.com Brooksville, FL 34601-2850 'shellev@fowlenwhite.com kbrodeen@fowlerwhite.com cao@co.hernando.fl.us gkirk@co.hernando.fl.us By Hand Delivery: David L. Jordan, Deputy General Counsel DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 FINAL ORDER NO. DCA11-GM-069 By Filing At DOAH: The Honorable Bram D.E. Canter Administrative Law Judge DIVISION OF ADMINISTRATIVE HEARINGS 1230 Apalachee Parkway Tallahassee, FL 32399-3060
The Issue Whether the Respondent, the Gadsden County School Board (Respondent or Board), acted illegally, arbitrarily, fraudulently, or dishonestly in rejecting all proposals for telecommunications services as set forth in its E-Rate application for the school year 2003-2004 (the sixth year).
Findings Of Fact The Petitioner is a municipal corporation operating under authority of law. NetQuincy is the utility/entity through which the City sought to provide "information technology resources" as requested by the Board's RFP. NetQuincy is capable of providing internet access and related telecommunication services. "T1" is a specific type of information technology that identifies internet access. It is undisputed that the Petitioner sought to provide such service in connection with the RFP at issue. On October 9, 2002, the Respondent posted a Form 470 requesting various telecommunication services to be provided during the 2003-2004 school year (the sixth year). T1 service was among the requested technological services identified. Form 470 is required pursuant to E-rate guidelines. In connection with the Form 470, the Board also posted the RFP that is the subject of the instant dispute. The original RFP was amended and reposted on October 25, 2002. T1 service for all eligible school sites was specifically noted on the revised RFP. A vendor's meeting regarding the revised RFP was conducted on October 31, 2002. The Petitioner's representative attended the vendor's meeting. On December 2, 2002, three vendors timely submitted responses to the RFP: the Petitioner, the Intervenor, and Trillion (not a party herein). None of the submittals was evaluated. Instead, the Respondent posted a notice on December 6, 2002, that rejected all responses. More specifically, the notice provided in connection with the service in dispute in this cause: **We would like to thank all those who submitted quotes for this section of our RFP, however, during the 28 day period of the bidding process, the School District learned that the Florida Learning Alliance will be providing this service for us. Since this means zero costs for the School District, we will NOT be filling [sic] for E-rate discounts for this service for the 2003-2004 (Year Six) time period. The rejection notice did not contain the language set forth in Section 120.57(3), Florida Statutes. Nevertheless, the City filed a Notice of Intent to Protest the decision to reject all responses. The timeliness of the Notice of Intent to Protest or the Petition for Administrative Hearing has not been challenged. On December 16, 2002, the Florida Learning Alliance (FLA) filed an RFP requesting vendors for the same services identified in the Respondent's revised request. That is, T1 service for all eligible school sites for E-rate (the sixth year). The deadline for submittals to FLA's RFP was January 16, 2003. No decision on FLA's RFP was rendered as the instant action was initiated on December 23, 2002. The parties contend that by operation of law the bid solicitation process for both RFPs (the Board's and FLA's) was suspended. Thus it is uncertain whether the Respondent will be able to participate in the E-rate program for the sixth year. The E-rate program has existed since the 1998-1999 school year. It provides funding to enable schools to obtain internet access and services. The Schools and Libraries Division (SLD) administers the program and offers funding to eligible school districts computed as a "discount." The level of discount is determined by the level of poverty within the population to be served. The Respondent has participated in the E-rate program for several years. Depending on the school to be served, the Respondent's discount is 86 or 87 percent. The remaining amount, the "undiscounted portion" is not paid by the SLD. Participants in the E-rate program are entitled to apply in two ways: individually (as the Respondent has done) or through a consortium. In this case, the FLA is an alliance through which the Respondent may receive E-rate services. FLA is comprised of three educational consortia covering 34 small rural school districts. The Panhandle Area Educational Consortium (PAEC) encompasses the geographical area within which the Respondent is located. As a member of PAEC, the Respondent is entitled to participate with FLA. By virtue of FLA's Technology Innovation Challenge Grant rural schools may receive T1 lines such as requested herein. More important, however, is FLA's ability to provide the undiscounted portion of the E-rate. That means FLA will provide the 13 or 14 percent not covered by the SLD. In order to benefit in this manner, the Form 470 for the services requested must be filed through the FLA. In this case, the Respondent confirmed this potential benefit of receiving the services at no cost only after its Form 470 and RFP had been posted. When they elected to withdraw their own RFP (to allow FLA to pursue the matter in their behalf) the instant protest followed. The Petitioner did file a response to FLA's RFP in order to be considered for the sixth year E-rate. The issue related to the sixth year is complicated by the fact that unbeknownst to the Respondent FLA acted on behalf of the Board for Year 5 T1 connectivity. As to Year 5, when no vendor replied to the FLA's RFP for T1 service, the Intervenor was selected as the "carrier of last resort." No contract was required or signed in connection with Year 5. The Intervenor was selected for Year 5 because TDS provided service in the areas designated for T1 service E-rate Year 5. That is how it was deemed "carrier of last resort." Other vendors provided services in other areas where they were similarly deemed the "carrier of last resort." In fact it was not until October 2002 that the Year 5 funding was made available. During the discussions over the Year 5 services (and with the deadline for filing the application for the sixth year fast approaching) Respondent filed Form 470 without knowing how or if FLA would participate in the sixth year process. When it later confirmed FLA would be available to administer the sixth year E-rate, the Respondent elected to abandon its revised RFP related to T1 service (thereby hoping to save the 13 or 14 percent not covered by the SLD funding). The revised RFP contained the following information: For Year 6 (July 1, 2003-June 30, 2004), the school district is planning to seek the services listed below. Any company that desires to submit a proposal for these services must meet the following criteria: * * * Be willing to enter into an agreement contingent upon E-Rate funding award. In other words, if the District is not successful in obtaining E-Rate funding on the particular service, the agreement will become invalid. Be willing to accept payment of only the non-discounted portion of the service from the school district and bill the SLD for the remaining portion. (this averages to be 86%) When a vendor is selected to provide E-rate services, SLD requires Form 471 to identify the provider and to complete the requisition started by the process (Form 470). The deadline for filing a Form 471 pertinent to this case (the sixth year) was February 6, 2003. Neither the Respondent nor FLA filed a Form 471 for the T1 services at issue. When the deadline for filing Form 471 passes, the opportunity to receive E-rate funding closes. As of the time of hearing in this cause the possibility of the Respondent receiving E-rate funding was slim to none. No entity filed a Form 471 for T1 services for the sixth year. The Respondent has not selected any vendor to provide E-rate services for the sixth year. The Respondent did not direct FLA to submit the Form 471 with the Intervenor as the provider for T1 during the E-rate sixth year. FLA has not submitted such form. The Respondent did not reject all bids for the purpose of avoiding the procurement process. The Respondent does not have a contract with the Intervenor for T1 services for E-rate, Year 6. The Respondent has not attempted to circumvent policies, rules, laws or statutes governing competitive procurement. The T1 services for the sixth year E-rate are "information technology resources" as defined in Section 282.303(13), Florida Statutes. As such they are not subject to any provision requiring competitive procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Formal Notice of Protest/Petition for Administrative Hearing be dismissed. DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2003. COPIES FURNISHED: Sterling Dupont, Superintendent Gadsden County School Board 35 Martin Luther King Boulevard Quincy, Florida 32351-4400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Stephen C. Emmanuel, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302-0391 Roosevelt Randolph, Esquire Knowles, Marks & Randolph, P.A. 215 South Monroe Street, Suite 130 Tallahassee, Florida 32301 William E. Williams, Esquire Huey, Guilday, Tucker, Schwartz, & Williams, P. A. 1983 Centre Pointe Boulevard Suite 200 Post Office Box 12500 Tallahassee, Florida 32308
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPHLLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TQ 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. g@a/ld/2ae9 13:32 Sep 14 2009 13:50 B589222679 DCA LEGAL PAGE Final Order Number DCA09-GM-314 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 described, on this /- 2009. day of September, Paula Ford, Agency Clerk DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 (850) 488-0410 By U.S. Mail and Electronic Mail: Jerri A. Blair, Esq. Cecelia Bonifay, Esq. City Attorney Akerman Senterfitt City of Wildwood 420 8. Orange Avenue, Suite 1200 Post Office Box 130 Orlando, FL 32801 Tavares, FL 32778-3809 cecelia.bonifaytakerman.com jbhlair710@acl .com By Hand Delivery: By Interagency Mail: David L. Jordan, Esq. The Honorable Bram D.E. Canter Assistant General Coungel Administrative Law Judge DEPARTMENT OF COMMUNITY AFFAIRS Div. of Administrative Hearings 2555 Shumard Oak Boulevard The DeSoto Building Tallahassee, Florida 32399 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 a3/ag
