The Issue The sole issue to be addressed is whether the Petition to establish the community development district meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Conclusions On Wednesday, November 17, 1999, at 9:30 a.m., the local public hearing in this proceeding was held before Judge Don W. Davis. The hearing was held at the Department of Business and Professional Regulation, Room 526, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony and public comment and receiving exhibits on the Petition of The St. Joe Company (Petitioner) to establish a community development district. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned as administrative law judge, recommends that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Capital Region Community Development District as requested by the Petitioner (and as such request was amended at hearing on November 17, 1999) by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 3. DONE AND ENTERED this 9th day of December, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 9th day of December, 1999.
The Issue The issue is whether the Department of Transportation's proposed award of a contract to Intervenor for ten highway projects in Hernando County, Florida, was contrary to the agency's rules and policies, and the bid specifications, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On an undisclosed date in 1998, Respondent, Department of Transportation (DOT), issued an invitation for bids on Federal Aid Project Nos. 3014050P, 3014049P, State Road 50 and State Road 45 (U. S. 41), and Financial Project Nos. 2548051-5201, 2548051- 5601, 2548051-5602, 2548161-5601, 2548161-5602, and 2548161-5201, which involved various road projects in Hernando County, Florida. All bids were to be filed no later than October 28, 1998, and a bid letting would be held later that day. Pursuant to its rules, the DOT established for the project a ten percent disadvantaged business enterprise (DBE) participation goal. Under Rule 14-78.003(2)(b)3.b., Florida Administrative Code, a bidder was required to submit, at the time of its submission, a completed DBE Utilization Summary Form and Utilization Form, which provided the DOT with information necessary to assure that the bidder would meet or exceed the percentage goals on the project. Alternatively, the above rule allows a bidder to submit with its bid an incomplete DBE Utilization Summary Form indicating that the DBE goal would be achieved. However, the completed forms had to be filed with DOT's Minority Programs Office (MPO) no later than 5:00 p.m. on the third business day following the bid letting day. This meant that a bidder utilizing this alternative had to file its completed forms with the MPO by the end of the business day on Monday, November 2, 1998. The DOT form itself provided that "[b]ids would be declared non-responsive if all DBE Utilization forms are not received by the [MPO] by 5:00 p.m. on the third business day after the letting." One of the DOT forms noted that the MPO was located at 3717 Apalachee Parkway, Suite G, Tallahassee, Florida, while the other gave no address. A public letting for the project was held on October 28, 1998. Intervenor, Smith & Company, Inc., submitted the lowest apparent bid of $26,678,514.61 while Petitioner, D. A. B. Constructors, Inc., submitted the second lowest bid of $30,817,777.73. Because Intervenor's bid did not contain completed DBE forms, it had to file them with the MPO by 5:00 p.m. on November 2, 1998. Intervenor's estimator in Fort Lauderdale, Florida, prepared and completed the appropriate DBE forms and on November 2 telefaxed them to its Tallahassee counsel, Vezina, Lawrence, and Piscitelli (VLP), with instructions that they be hand-carried to the MPO by the close of that business day. A part-time messenger for VLP, Cameron Kennedy, was handed the forms that afternoon and told, without more specificity, to get them filed and date-stamped at the DOT's satellite office at 3717 Apalachee Parkway. That office is located in a two-story structure and houses several DOT offices, including its MPO and Comptroller. The latter office is located on the first floor of the building while the MPO is on the second floor in Suite G. A directory on the first floor of the building notes that the MPO is on the second floor. However, when Kennedy first entered the building, he asked a DOT employee where he could get DBE forms filed and date-stamped. She led him to a nearby room in Suite A on the first floor where they were stamped as received at 4:07 p.m. by an employee of the DOT Comptroller's office, Sharon Poppel. Kennedy then left the premises believing that the forms had been properly stamped and filed. When Poppel later examined the documents, she noted that they involved "a company with money," so she mistakenly sent them to the Comptroller's financial administration office. That office returned them to her desk the next day. After checking with a supervisor, Poppel hand carried the forms to the MPO on November 4, 1998, or two days after they were due. This late filing contravened the terms of Rule 14-78.003(2)(b)3., Florida Administrative Code, and the DBE form which contained the same requirement. DOT has no policies, procedures, criteria, or guidelines for determining whether an error in a bid submission is a technical or material error. Because the facts in each case may differ, this task is performed on an ad hoc basis by three DOT committees that review bid proposals. When a bidder has failed to file its forms within the three-day period, an event occurring at least thirty-eight times in recent years, DOT has consistently held this to be a material error. However, on the only two occasions when a bidder's DBE forms were timely filed with the agency within the three-day window, but were misdelivered to the wrong office, the error was considered technical and the forms were accepted. Under DOT's review process, a good faith efforts committee initially reviews the DBE forms submitted by bidders to determine whether they comply with the agency's rules. In this case, the committee made a recommendation that Intervenor's bid be declared non-responsive on the ground the DBE forms had not been filed with the MPO until November 4, or two days late. Under DOT protocol, the recommendation of the good faith efforts committee is then referred to the technical review committee to review "bids that have . . . problems." The latter committee is not required to accept the recommendation of the good faith efforts committee. Here, the technical review committee determined that the misfiling by Intervenor was a technical error and not a ground for rejecting the bid. In other words, while the committee continued to follow its policy of strictly enforcing the requirement that DBE forms be filed within three business days, it considered Intervenor's misdelivery of the forms to be a technical error which could be waived. This recommendation was accepted by the contract awards committee and on November 19, 1998, DOT posted its intent to award the contract to Intervenor. Contrary to Petitioner's assertion, there is no evidence that Intervenor gained an advantage over other bidders by misfiling the documents with the wrong DOT office.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a final order confirming its award of the contract to Intervenor. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21st day of April, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Agency Clerk 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 F. Alan Cummings, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Brian F. McGrail, Esquire Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Donna A. Stinson, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issues are whether the intended contract awarded to Intervenor, The Henry and Rilla White Foundation, Inc. (Intervenor or White), pursuant to Request for Proposals #P2062 (RFP) for an Intensive Delinquency Diversion Services (IDDS) program in Palm Beach County, Florida (Circuit 15), is contrary to Respondent’s governing statutes, policies and rules, and the RFP. Petitioner, Juvenile Services Program, Inc. (Petitioner or JSP), timely challenged the intended award, and alleged that the award to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency for this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. Intervenor is a not-for-profit corporation duly organized under the laws of the State of Florida. On November 23, 2009, Respondent issued the RFP to select a provider to operate IDDS programs in multiple counties, multiple circuits, within Florida. Petitioner did not protest the specifications of the RFP within 72 hours of the issuance of the RFP. Petitioner and White submitted timely responses to the RFP. Both sought the award for Circuit 15. On or about March 5, 2010, the Department posted its NOAA and informed all parties of its intent to award the contract at issue to Intervenor. The NOAA ranked White, first, with 1549.78 points; JSP, second, with 1451.34 points; and Urban League of Palm Beach, Inc., third, with 862.58 points. Petitioner filed a formal protest of the intended award to White on March 15, 2010. Thereafter, representatives from Petitioner and Respondent met to attempt resolution of the protest, but were unsuccessful. As the case moved forward to trial, White petitioned to intervene as the first ranked proposer. It is uncontested that White and JSP have standing in this matter. Throughout these proceedings, Petitioner maintained that Respondent scored the proposals contrary to the specifications of the RFP. Additionally, Petitioner claimed that the persons appointed to evaluate the proposals for the award did not have the requisite experience and knowledge in the program areas, and service requirements sufficient to score the proposals. Under the RFP, three components were to be scored by the evaluators: a technical section; a financial section; and a past performance section. A team of three evaluators independently scored the proposals submitted. Department program area managers selected the evaluators, who were then approved by the Department’s Deputy Secretary. All evaluators were trained in the evaluation process. In order to assure that appropriate employees are selected to serve as evaluators, Amy Johnson, Respondent’s chief of contracts, created a spreadsheet to identify those employees who are qualified to evaluate different types of procurements. The spreadsheet notes which program service area each employee is approved to serve. All of the evaluators in this case were chosen and deemed credentialed by Respondent to evaluate the subject RFP. In this case Karen McNeal, Jeffrey Balliet, and Cheryl Surls were selected and approved to evaluate the responses to the RFP. Ms. Johnson insured that the evaluators were trained to perform their duties. In this regard, Ms. Johnson reviewed the rules of the evaluation process and a generic evaluation with each of the evaluators. Training for the evaluators included how to score, along with sample scoring sheets. Although Ms. McNeal had not served as an evaluator prior to this case, she was appropriately trained and instructed in the methodology and guidelines for scoring proposals. Further, her job training and experience assured that she was familiar with IDDS program services. Mr. Balliet has served as an evaluator for proposals for approximately ten years. Mr. Balliet was appropriately trained and instructed in the scoring process. Additionally, Mr. Balliet’s work experience also qualified him to evaluate the IDDS proposals encompassed within the RFP responses. Finally, Ms. Surls has been familiar with the programs and services of IDDS for several years. She also completed RFP evaluation training prior to being placed on the spreadsheet list of potential evaluators. On January 11, 2010, Elaine Atwood, the procurement officer for the instant RFP, conducted a conference call with the evaluators for this case. All of the evaluators were familiar with the IDDS program and were provided an opportunity to ask Paul Hatcher, the author of the scope of services for this RFP, any program question regarding IDDS and/or the RFP. The Evaluation Team Ground Rules and Instruction specified that the evaluators were to read, evaluate, and score the proposals based upon the scoring sheet matrix. The evaluators were directed not to speak to other evaluators, nor to consider any information from any source other than the information provided within the proposal itself. If any evaluators were to require assistance, he or she was instructed to contact Ms. Atwood. All scoring was to be done based upon the solicitation document and the proposal submitted. The matrix for scoring assigned a score from 0 to 5 depending upon how well the proposal addressed the specification requirement. A score of 5 constituted the highest rating, and only those proposals that exceeded all technical specifications and requirements for the service component specified, with innovative, comprehensive, and complete detail were to receive that score. A score of 0 would be assigned when the proposal did not address the service component specified, or the evaluator could not locate the information in the proposal necessary to use another rating number. Petitioner maintained that one evaluator, Ms. McNeal, failed to follow the directions related to changes to scoring. It is concluded that Ms. McNeal adequately marked the score sheet, such that there was no confusion as to the score awarded, or the time of its entry. Contemporaneous with an initial score of “5” for the category “Management Capability,” Ms. McNeal re-marked the JSP score to a “4.” Similarly, Ms. McNeal re-marked the JSP score for the category “Consideration 1" from “5” to “4.” Any “change” occurred in the matter of moments that it took for Ms. McNeal to re-mark the score sheet, and did not indicate a reflection or after-thought of “change.” If anything, the “change” was to correct an error of marking. Ms. McNeal’s testimony as to the marking of the score sheet and her rationale for re-marking it has been deemed credible. Any deviation from the instructions as to a requirement that “change” must be documented is deemed minor or insignificant. Documenting a “change” is deemed minor and insignificant in this case, because the notation for the score of “4” was contemporaneous with the initial mark and not a later after- thought. Petitioner also challenged Ms. Surls’ award of the score “3” to all of JSP’s categories. Petitioner maintained that such an award demonstrated a lack of understanding regarding the subject matter addressed. To the contrary, Ms. Surls also awarded the score of “3” to White. The only category that exceeded “3” on Ms. Surls scoring of White was "Behavioral Management," for which Intervenor received a “4.” Ms. Surls was consistent and thorough in her review of the proposals and commented appropriately as to the basis for each score. The Technical Proposal narrative submitted by White did not exceed sixty pages. Petitioner did not contest scoring where an evaluator increased JSP’s score without comment. None of the alleged “changes” to scoring gave any proposal an unfair advantage. All proposals were given the same consideration and thoughtful review. The Department has used RFPs to cover multiple circuits in numerous instances. Petitioner did not timely challenge the process of providing for proposals for multiple circuits. Moreover, no evidence supports a finding that the process of covering multiple circuits within one RFP is inherently flawed or contrary to law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition filed by Juvenile Service Program. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 14th day of March, 2011. COPIES FURNISHED: Tonja White Mathews, Esquire Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Andrea V. Nelson, Esquire Walter Kelly, Esquire The Nelson Law Firm, PLC 1020 East Lafayette Street, Suite 214 Tallahassee, Florida 32301 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Secretary Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300 Jennifer Parker, General Counsel Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: All statements contained within the Petition have been found to be true and correct. The area encompassed by the proposed District is 30,637+- acres located within unincorporated areas of Glades and Hendry Counties, Florida (Exhibit 7). The external boundaries of the District are coterminous with the external boundaries of General Development Corporation's Port LaBelle development. Within these boundaries but excluded from the District are several out parcels that were never part of the original Villages of Port LaBelle development, as well as four Port LaBelle plat units where there are currently numerous property owners. The property within the District to be excluded from the community development district is described in Exhibit 10. General Development Corporation, a Delaware corporation authorized to do business in the State of Florida, is the major landowner within the proposed District (Exhibits 8 and 9A). Four other property owners owning seven parcels within the proposed District have joined in the Petition (Exhibit 9B). Installment lot contract purchasers within the areas to be included within the District who had not received a Property Offering Statement from GDC indicating the possibility of the formation of a special taxing district were separately notified by mail of the time and place of hearing and provided with information on the functions of the proposed District. Out of a total of 10,270 letters sent, only six lot purchasers made further inquiries, and those inquiries were not related to the formation of the District, but were related to property values. (Testimony of Lawrence W. Mobley. Affidavit of Mark Billson, Exhibits 19A and B.) The area of land within the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functionally interrelated community. This finding is based in part on the fact that the area to be included within the proposed District contains approximately 30,637+- acres. Property within the proposed District includes "vested" areas and areas which have been and continue to be subject to Chapter 380, Florida Statutes, review and is planned to be developed as a functional, interrelated community with a variety of land uses, including commercial, institutional, residential, and recreational. The District is ultimately projected to include 49,646 dwelling units. The area encompassed by the proposed District was subject to a Master Application for Development Approval. The Master Land Use Plan depicting uses is shown in Exhibit 13A. Master Development Orders were issued by Glades and Hendry Counties in 1974, subject to further incremental review as detailed technical data became available (Exhibits 13A, B, C and D). In 1980, Development Orders were issued by Glades and Hendry Counties for Increment II (Exhibits 14A and B). Portions of the remaining property will be subject to further incremental review (Exhibit 15A). The area subject to further review contains approximately 13,690+- acres and includes residential villages and a town center as well as a variety of other land uses. The projected population for this area is 48,700 (Exhibit 15B). The proposed designation of the future general distribution, location and extent of public and private uses within the District is shown in Exhibit 15A. All mandatory elements of the local government comprehensive plans for both Glades and Hendry Counties have been adopted in compliance with the Local Government Comprehensive Planning Act of 1975 (Exhibits 17A, 17A1, 17B and 17B1) The proposed creation of the District is not inconsistent with applicable elements of the State Comprehensive Plan. The proposed District is not inconsistent with the applicable elements of the Glades and Hendry Counties Comprehensive Plans, as evidenced by the fact that the Planning Director for each county has indicated that the establishment of the District is not incompatible with applicable elements of the local government comprehensive plans (Petitioner's Exhibits 18A and 18B). The five persons proposed to be the initial members of the board of supervisors who shall serve in that office until replaced by elected members as provided by Section 190.006, Florida Statutes, are: C. C. Crump Senior Vice President General Development Corporation 1111 South Bayshore Drive Miami, --Florida -33131 (305) 350-1525 Arthur L. Harper, Jr. Vice President General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1533 James E. Clark Assistant Vice President 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1531 Wayne L. Allen Vice President and General Counsel General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1261 Lawrence W. Mobley Assistant Vice President General Development Corporation Highway 80 East Birchwood Boulevard LaBelle, Florida 33595 (813) 675-1712 The proposed name of the District is the Port LaBelle Community Development District. A map of the proposed District showing current major trunk water mains and sewer interceptors and outfalls have been provided in Exhibits 11A and B. No water distribution and collection systems are proposed to be constructed, operated or maintained by the District. Facilities are to be constructed by the District over a period of 40 years. The timetable for construction indicates that all facilities should be completed by the year 2020 (Petitioner's Exhibit 23). The total costs associated with the capital facilities to be constructed are estimated in good faith to be $5,433,000.00 (Exhibit 22). Glades County Resolution 80-9 (Exhibit 14A) and Hendry County Resolution 80-37 (Exhibit 14B) requested that the applicant, GDC, work together with each county to investigate the feasibility of establishing certain special taxing districts. As a result of these conditions, GDC filed a petition for establishing a community development district. The applicable local governments, the Board of County Commissioners of Glades and Hendry Counties have evidenced their support of Petitioner's request to have a District established by rule by passing Resolution 81-62, dated September 8, 1981, by Hendry County, and Resolution 81-17, dated September 14, 1981, by Glades County (Exhibits 20A and B, respectively). The District is the best available alternative for providing and delivering community services and facilities to the area to be serviced by the District. This finding is supported by the Resolutions of the Board of County Commissioners of Glades County and Hendry County acknowledging that neither county is presently in a position to provide any of the essential services required by a community of this size. The Community Development District will be able to provide reliable long-term maintenance of the services and facilities not otherwise provided by the counties or other appropriate units of local government (Exhibits 20A and B). The Barron Water Control District, a district established pursuant to Chapter 298, Florida Statutes, within the area of the proposed District, has also evidenced its support of Petitioner's request to establish a Community Development District by rule (Petitioner's Exhibit 21). The Community Development District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the District is amenable to separate district government. This finding is supported by the foregoing findings of fact which establish that the nature, location, and size of the proposed Port LaBelle Community Development District would make it amenable to separate district government. Members of the public testifying at hearing had no complaints that related to the specifics of the petition filed in this cause. Instead, their concerns related to the wisdom of the Legislature in enacting Chapter 190, Florida Statutes, in the first instance, and the witnesses' desires that the Act be repealed as soon as possible. These concerns are, of course, outside the scope of issues properly involved in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law hereby submitted, the Hearing Officer recommends that the Florida Land and Water Adjudicatory Commission grant the Petition of General Development Corporation, and adopt a rule which will establish the Port LaBelle Community Development District. DONE AND ENTERED this 9th day of July, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1982. COPIES FURNISHED: Nancy H. Roen, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 Ms. Miriam Schreiner Post Office Box 1288 LaBelle, Florida Mayor Joan Jefferson City of Stuart Stuart, Florida 33495 Robert Miller, Chairman Treasure Coast Regional Planning Council Post Office Box 2395 Stuart, Florida 33495 Honorable Bob Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 Mr. John T. Herndon Director of the Office of Planning and Budget Executive Office of the Governor The Capitol Tallahassee, Florida 32301
The Issue At "issue" in this hearing was the Petition for Rulemaking to Establish a Uniform Community Development District, dated October 10, 2002 (Petition). The Petition, filed by Beach Road Development Company L.L.C., requested that the Florida Land and Water Adjudicatory Commission (FLWAC) adopt a rule to establish a state-chartered uniform community development district, to be called the Cocohatchee Community Development District, on certain property in Lee County, Florida. The hearing was for purposes of gathering information in anticipation of quasi- legislative rulemaking by FLWAC.
The Issue The issue presented in this proceeding is whether the Petition to Merge Mediterra North Community Development District and Mediterra South Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
Conclusions This proceeding is governed by chapters 120 and 190 and rule chapter 42-1. The proceeding was properly noticed pursuant to section 190.005 by publication of an advertisement in two newspapers of general paid circulation in Collier and Lee County of general interest and readership, once each week for the four consecutive weeks immediately prior to the hearing. Petitioner has met the requirements of section 190.005(1)(a) regarding the submission of the Petition and satisfaction of the filing fee requirements. Petitioner bears the burden of establishing that the Petition meets the relevant statutory criteria set forth in section 190.005(1)(e). All portions of the Petition and other submittals have been completed and filed as required by law. All statements contained within the Petition are true and correct. The merger of the Districts is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective County or City Comprehensive Plans. The area of land within the Merged District remains of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. The Merged District remains the best alternative available for delivering community development services and facilities to the area that will be served by the Merged District. The community development services and facilities of the Merged District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area to be served by the Merged District remains amenable to separate special-district government. Based on the record evidence, the Petition satisfies all of the statutory requirements and, therefore, there is no reason not to grant Petitioner's request for merger of the two Districts and to formally adopt a rule to merge the Districts' boundaries, as requested by Petitioner. DONE AND ENTERED this 21st day of September, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of September, 2017. COPIES FURNISHED: Cynthia Kelly, Secretary Florida Land and Water Adjudicatory Commission Room 1801, The Capitol Tallahassee, Florida 32399-0001 John P. "Jack" Heekin, General Counsel Office of the Governor Room 209, The Capitol Tallahassee, Florida 32399-0001 (eServed) Peter L. Penrod, General Counsel Department of Economic Opportunity The Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Barbara R. Leighty, Clerk Transportation and Economic Development Policy Unit Room 1801, The Capitol Tallahassee, Florida 32399-0001 (eServed) Jonathon T. Johnson, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 (eServed)
The Issue Whether Metro has standing in this case; and Whether Florida Administrative Code Proposed Rule 15A- is an invalid exercise of the Department's delegated legislative authority within the meaning of section 120.52(8), Florida Statutes.2/
Findings Of Fact Private probation services providers are authorized by section 948.15, Florida Statutes, to provide probation services to persons who have been placed on probation by a county court for certain misdemeanors, including misdemeanors in which the use of alcohol is a significant factor. Driving under the influence programs (DUI programs) are authorized by Florida law to provide substance abuse courses to persons who have been arrested for driving under the influence. The Department is responsible for the regulation and licensing of all DUI programs in Florida. See § 322.292, Fla. Stat. Metro is an entity licensed by the Department to operate DUI programs. Some private probation services providers or their affiliates have an ownership interest in DUI programs. Metro is not owned in whole or in part by a private probation services provider or affiliate. There are, however, DUI programs owned by private probation services providers serving some of the same counties where Metro operates its DUI programs. In 2009, the Florida Legislature added subsection 5 to section 322.292, providing: (5) A private probation services provider authorized under s. 948.15 may not refer probationers to any DUI program owned in whole or in part by that probation services provider or its affiliates. The department shall establish rules to administer this subsection. On August 13, 2010, the Department published the following preliminary text of the proposed rule development in Volume 32, Number 32, of the Florida Administrative Law Weekly: THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS: 15A-10.009 Program Jurisdiction. through (3) No change. (4) DUI programs who are also authorized as a private probation services provider under Section 948.15, F.S., shall not distribute a list of DUI programs in their service area or self-refer persons who are probationers to any DUI program owned in whole or in part by that private probation services provider or its affiliates. The DUI program shall document that the probationer was advised of their right to choose a licensed DUI program. Following an August 31, 2010, rule development workshop, on November 24, 2010, the Department published the full text of the proposed rule in Volume 36, Number 47, of the Florida Administrative Law Weekly in a Notice of Proposed Rule, as follows: THE FULL TEXT OF THE PROPOSED RULE IS: 15A-10.009 Program Jurisdiction through (3) No change. (4) DUI programs that are also authorized as private probation services providers under Section 948.15, F.S., shall not distribute a list of DUI programs in their service area or self-refer persons who are probationers to any DUI program owned in whole or in part by that private probation services provider or its affiliates. The DUI program shall document in writing, signed by the probationer, prior to the commencement of any services, that the probationer was advised of their right to choose any licensed DUI program that serves the county of their residence, employment or school attendance and that the probationer has not been referred by the private probation services provider to their DUI program. No DUI program information will be visible in any common areas of a private probation services facility, including the probation offices, hallways and any other area open to clients. This includes all forms of media including but not limited to: posters, brochures, pamphlets, and signage. The "purpose and effect" paragraph published with the notice of proposed rule on November 24, 2010, provides: PURPOSE AND EFFECT: The purpose of the proposed rule action is to add a paragraph to the current rule to prohibit DUI programs which are also authorized as private probation services providers from distributing a list of DUI programs in their service area or to self-refer persons who are probationers to a DUI program owned in whole or in part by that private probation services provider or its affiliates; also requires DUI programs to document that the probationer was advised of their right to choose a licensed DUI program. On December 21, 2010, a public hearing was held on the proposed rule. A transcript of that hearing is attached as Exhibit A-5 to the Department's motion for summary final order. On March 4, 2011, the Department published a notice of change in Volume 37, Number 9, of the Florida Administrative Law Weekly, which provided: Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 36, No. 47, November 24, 2010 issue of the Florida Administrative Weekly. through (3) No change. (4) A DUI programs that are also authorized as private probation services provider, authorized providers under Section 948.15, F.S., shall not distribute a list of DUI programs in their service area or self-refer persons who are probationers to any DUI program owned in whole or in part by that private probation services provider or its affiliates. The DUI program shall document in writing, signed by the probationer, prior to the commencement of any services, that the probationer was advised of their right to choose any licensed DUI program that serves the county of their residence, employment or school attendance and that the probationer has not been referred by the private probation services provider to their DUI program. No advertising materials for a DUI program, including posters, brochures, pamphlets, or signs, shall information will be visible in any common areas of a private probation services facility, including the probation offices, hallways and any other area open to clients. Interior directional and exterior business signs are allowed. This includes all forms of media including but not limited to: posters, brochures, pamphlets and signage. Under the proposed rule as changed, a private probation services provider would be allowed to post interior directional and exterior business signs in its common areas for DUI programs in which the private probation services provider has an ownership interest. Non-affiliated DUI program materials would not be allowed to be posted.
The Issue The issue in this case is whether the Petition to Establish Rule and the Amended Petition to Establish Rule (the Petition) should be granted.
Findings Of Fact The Petitioner, Centrex Homes, is a Nevada General Partnership which owns or has authority over the property proposed for establishment of the state created District. Clay County is the affected local general purpose government, a political subdivision of Florida, within whose jurisdiction in the unincorporated area of the county the proposed land is located. The Petition proposes the establishment by rule of Fleming Island CDD on certain proposed real property in the unincorporated area of Clay County. (The uniform statutory charter for all established community development districts (CDDs) is found in Sections 190.006 through 190.046, Florida Statutes (Supp. 1998), as amended by Chapter 99-378, Laws of Florida (1999). See Conclusions, infra.) The proposed land to be served by Fleming Island CDD consists of approximately 1,580 acres bounded on the north and west by vacant property; on the east by U.S. Highway 17, Fleming Island Estates and the St. Johns River; on the southwest by Black Creek; and on the south by Black Creek and the St. Johns River. A map showing the location of the land areas to be served by the CDD was attached as Petitioner's Exhibit No. 1 to the Petition. As proposed, Fleming Island CDD contains no enclaves; the land is contiguous and will be separated only by roads, streets, or other similar, small barriers. The Petition alleges that the metes and bounds legal description of the property is contained in Petition Exhibit No. 2. The Petition Exhibit Nos. 3, 4, and 5 constitute documentation that the owners of all the real property proposed to be included in Fleming Island CDD have given written consent to the establishment of the CDD on the proposed property. The Petition names the five persons (revised in the Amended Petition) to serve on the initial Board of Supervisors upon establishment of the CDD by rule. The Petition identifies and depicts in Petition Exhibit No. 6 proposed land uses within the previously-approved DRI. The Petition identifies the DRI development order in Petition Exhibit No. 7. The Petition identifies and depicts in Petition Exhibit No. 8 the main trunk waterlines, sewer interceptors, and outfalls on the property proposed to be served by the CDD. The Petition sets forth in Petition Exhibit No. 9 (revised in the Amended Petition) the proposed timetable and schedule of estimated costs for the construction of the proposed facilities. The Petition alleges and Petitioner's Exhibit No. 2 admitted at the hearing demonstrates that the Clay County Local Government Comprehensive Plan is an effective local government comprehensive plan which is in compliance with state law. The Petition also alleges that the Clay County future land use map (FLUM) designates the land to be within Fleming Island CDD. Petition Exhibit No. 11 is a Statement of Estimated Regulatory Costs. The Petitioner paid $15,000 to Clay County for the required filing and processing fees prior to filing the Petition on April 30, 1999. Based on the evidence, all statements contained within the Petition are found to be true and correct. See pre-filed and oral testimony of Gary L. Moyer; testimony of Petitioner's land use planner, Susan Fraser, AICP; and testimony of Petitioner's business expert, William J. Rizzetta. The underlying community development anticipated to be served by the CDD is described in Section 1.0 of the Statement of Estimated Regulatory Costs at Petition Exhibit No. 11 and in the testimony of Gary L. Moyer. It will be consistent with and similar to the adjacent development. Development in Fleming Island CDD is to proceed under the development order for development of regional impact (DRI). The evidence, especially the testimony of Susan Fraser (AICP), indicates that establishment of Fleming Island CDD will not be inconsistent with any applicable element or portion of the state comprehensive plan or of the Clay County Comprehensive Plan. There was no evidence to the contrary. The evidence indicates that the area of land within the proposed CDD is of sufficient size, is sufficiently compact, and sufficiently contiguous to be developable as one, functional, interrelated community. There was no evidence to the contrary. The evidence indicates that the CDD is the best alternative available for delivering community development services and facilities (including recreational facilities) to the area that will be served by the CDD. There was no evidence to the contrary. The evidence indicates that the CDD's services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. The evidence was that the area to be served by Fleming Island CDD is amenable to separate special-district government. There was no evidence to the contrary. Clay County also held a public hearing on the Petition, which resulted in the County's adoption of a Resolution 99-57 supporting the Petition and establishment of the Fleming Island CDD.
Conclusions On October 2, 1999, a local public hearing was held in this case in Green Cove Springs, Clay County, Florida, before Don W. Davis, Administrative Law Judge (ALJ), Division of Administrative Hearings, under the authority of Section 190.005(1)(d), Florida Statutes (Supp. 1998).
