STATE OF FLORIDA ADMINISTRATION COMMISSION

Transcription

1 RICHARD A. BURGESS, STATE OF FLORIDA ADMINISTRATION COMMISSION Petitioner, v. CASE NO. ACC DEPARTMENT OF COMMUNITY AFFAIRS, and CITY OF EDGEWATER, and Respondents, HAMMOCK CREEK GREEN LLC, Intervenor. / PETITIONER RICHARD BURGESS' MOTION TO STRIKE DEPARTMENT OF COMMUNITY AFFAIRS' NOTICE OF FILING PROPOSED FINAL ORDER Pursuant to Rule , Florida Administrative Code (FAC), Petitioner Richard A. Burgess ("Burgess"), moves to strike the Department of Community Affairs' Notice of Filing Proposed Final Order and attachment (collectively "Notice") and states: 1. On December 22, 2010, the Department rendered an Order, entitled "Determination of Non-Compliance" ("Order") and forwarded it to the Administration Commission for final agency action; the Order was signed by the agency head (Secretary Thomas Pelham) and

2 filed/acknowledged by the agency clerk. See, Sections 20.18(1) and (1), (2), (3) & (7), Florida Statutes. A copy of the Order was also forwarded to the Division of Administrative Hearings and posted on the Division's website. The Order was accompanied by a recommended disposition on Petitioner Burgess' Motion for Remand. No appeal or judicial proceeding was filed regarding the Order. 2. On February 7, 2011, the Administration Commission issued a Notice of Prohibited Parties for this matter. 3. On February 9, 2011, the Administration Commission issued a Notice of Meeting for this matter. 4. The Notice of Meeting acknowledged the Administration Commission's jurisdiction over this matter. 5. The Administration Commission has adopted Uniform Rules of Procedure pursuant to Section (5), Florida Statutes, in Chapter , Florida Administrative Code (F.A.C.), including but not limited to Rules , and The Commission has also adopted Rule , F.A.C. pertaining to agenda's. Absent an exception granted by the Administration Commission, all agencies are required to follow the Uniform Rules. See, Gaston v. Dept. of Revenue, 742 2

3 So.2d 517, (Fla. 1st DCA 1999); Dept. of Corrections v. Saulter, 742 So.2d 368, 369 (Fla. 1st DCA 1999). Moreover, all agencies are obligated to follow their own rules. See, DeCarion v. Martinez, 537 So.2d 1083, 1084 (Fla. 1st DCA 1989). 6. On February 11, 2011, David L. Jordan, an Assistant General Counsel, for the Department of Community Affairs filed and served a Notice of Filing Proposed Final Order with an attachment ("Notice") in this matter. 7. Prior to February 11, 2011, David L. Jordan, an Assistant General Counsel had not entered an appearance in this matter. See, Rule , F.A.C. 8. Neither the Florida Statutes, the Uniform Rules of Procedure, nor the Administration Commission's Notice of Meeting provide any authority for Department of Community Affairs' Assistant General Counsel David Jordan to file a Notice of Filing Proposed Final Order in this matter. 9. The novel and incorrect assertion in the Department's "Proposed Final Order" that the subject comprehensive plan amendments are "in compliance" is fundamentally inconsistent with the Order entered by the Agency Head -- the Determination of Non-compliance, and is prejudicial to Mr. Burgess, who contends that the subject plan amendments are not "in 3

4 compliance." The Notice's attachment purports to reweigh the evidence and set forth different rulings on some of Mr. Burgess' timely filed Exceptions to the Recommended Order than those contained in the Department's December 22, 2010, Order. The Notice's attachment also sets forth different rulings on the Department's Exceptions to the Recommended Order, which Mr. Burgess timely responded to, that were set forth in the Order. 10. The procedure in this matter is governed, in part, by Section (1)(j), (k) & (l), Section (9) & (11) and Section (3), Florida Statutes. See, Ashley v. State, Administration Commission, 976 So.2d 1130 (Fla. 1st DCA 2008). Upon entry and transmittal of the Department's Order, the Administration Commission became the "presiding officer" as defined in Rule , F.A.C. by operation of Section (9)(b), Florida Statutes. The Administration Commission has not authorized any party to this matter, including the Department of Community Affairs to file a Notice/Proposed Final Order. 11. Pursuant to Section (3), Florida Statutes, these proceedings were expedited while at the Division and the parties have never agreed in writing to additional time for post-hearing submittals. 4

5 12. In addition to being an unauthorized filing by someone who has not entered an appearance, the Notice of Filing is an untimely post-hearing submittal. 13. While the Notice does not indicate whether or not Mr. Jordan filed the Notice acting on behalf of the agency staff who prosecuted (litigated) this matter, or on behalf of someone else in the Department, there are due process implications to be considered. See, Cherry Communications, Inc. v. Deason, 652 So.2d 803, 804 (Fla. 1995), citing Ridgewood Properties, Inc. v. Dept. of Community Affairs, 562 So.2d 322, 323 (Fla. 1990). 14. Consideration of the Notice could constitute a material error in procedure. See, St. Joe Paper Co. v. Dept. of Community Affairs, 657 So.2d 27, 29 (Fla. 1st DCA 1995). 15. The undersigned has conferred, or attempted to confer, with counsel for the other parties and states: the Department's attorney of record, Matt Davis referred this matter to the General Counsel, Deborah Kearny with whom the undersigned had left a prior phone message; the City Attorney was traveling and not available; and Intervenor Hammock Creek Green LLC opposes this Motion. 5

6 WHEREFORE, without waiver of his Motion for Remand, Mr. Burgess respectfully moves to strike the Department of Community Affairs' Notice of Filing Proposed Final Order (and attachment), moves for attorney's fees under Section (12), Florida Statutes, and other relief as just and proper. Respectfully submitted, Ross Stafford Burnaman Attorney at Law Fla. Bar No Holland Drive Tallahassee, FL (850) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by electronic mail to the following persons this 15th day of February Matthew G. Davis, Esquire Florida Dept. of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL David Jordan, Esquire Florida Dept. of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL Carolyn Ansay, Esquire 6

7 Doran, Wolfe et al 1020 W. International Speedway Blvd. Daytona Beach, FL Linda L. Shelley, Esquire Karen Brodeen, Esquire Fowler, White et al P.O. Box Tallahassee, FL Ted Brown, Esquire Baker & Hostetler, LLP Sun Trust Center Suite South Orange Ave. Orlando, FL Ross Stafford Burnaman 7