21-001179 Merrillee Malwitz-Jipson vs. Seven Springs Water Company And Suwannee River Water Management District Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, April 14, 2021.

5. On March 31,2021, ALJ FFOLKES issued an Order to Show Cause directing the

parties to show cause why the PETITION should not be dismissed for lack of jurisdiction under

Fla. R. App. P. 9.600, which provides that lower tribunals are divested of jurisdiction over

matters which are on appeal 1111less the appeals court allows the lower tribunal to proceed.

6. On April II, 2021, the DISTRICT filed in the First District Court of Appeal its

MOTION TO STAY APPEAL AND RELINQUISH JURISDICTION TO CONSIDER AND

RULE ON PENDING PETITIONS FOR ADMINISTRATIVE HEARING in which the

DISTRICT requested the appeals court to stay the appeal and relinquish jurisdiction to allow

ALJ FFLOKES to proceed with the proceedings before DOAH.

7. On April12, 2021, the DISTRICT filed with DOAH a response to the Order to

Show Cause which requested ALJ FFOLKES to take no action on the Order to Show Cause until

after the First District Court of Appeal ruled on the MOTION TO STAY APPEAL AND

RELINQUISH JURISDICTION TO CONSIDER AND RULE ON PENDING PETITIONS FOR

ADMINISTRATIVE HEARING, a copy of which was attached.

8. On Aprill4, 2021, ALJ FFOLKES entered the ORDER OF DISMISSAL. In the

ORDER OF DISMISSAL, ALJ FFOLKES dismissed the PETITION for "lack of subject matter

jurisdiction", closed DOAH's file and relinquished jurisdiction to the DISTRICT "for entry of an

appropriate final order of dismissal." (ORDER OF DISMISSAL at page 3)

9. On April29, 2021, MALWITZ-JIPSON filed her PETITIONE.RS'

EXCEPTIONS TO DIVISION OF ADMINISTRATIVE HEARINGS' ORDER DISMISSING

PETITION AND CLOSING FILE setting out her exceptions to the ORDER OF DISMISSAL.

STATUS OF THE ORDER OF DISMISSAL

I 0. The ORDER OF DISMISSAL is not a recommended order. The term

"recommended order" is defined in Ch. 120 as follows: '"Recommended order' means the

official recommendation of an administrative law judge assigned by the division or of any other

duly authorized presiding officer, other than an agency head or member of an agency head, for

the final disposition of a proceeding 1111der ss. 120.569 and 120.57." Section 120.52(15), Fla.

Stat. The ORDER OF DISMISSAL does not use the term "recommended" in its title or in its

body (except where it references ALJ CHISENHALL's previous recommended orders) and does

not recommend that the DISTRICT do anything.

II. But more importantly, the ORDER OF DISMISSAL finds that both the

DISTRICT and DOAH lack jurisdiction. ALJ FFOLKES finds that "a tribunal has jurisdiction

to determine its own jurisdiction" (ORDER OF DISMISSAL at page I) and then rules that

"Neither the District nor DO AI-I may proceed because the appellate court's jurisdiction also

includes the legal issue raised by Petitioners." (ORDER OF DISMISSAL page 3) and then, "The

petition is DISMISSED for lack of subject matter jurisdiction." (ORDER OF DISMISSAL at

page 3) This is not a recommendation of dismissal, but an order determining that DOAH lacks

jurisdiction and then outright dismissing the PETITION. Therefore the ORDER OF

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DISMISSAL is not a "recommended" order.

12. Finally, it is apparent that ALJ FFOLKES did not consider the ORDER OF

DISMISSAL to be a recommended order. This is because ALJ FFOLKES did not give the

standard "Notice of Rights to Submit Exceptions" which is given on recommended orders. The

governing statutes and rules governing exceptions only apply to recommended orders. See,

Section 120.57(1)(k), Fla. Stat. ("The agency shall allow each party 15 days in which to submit

written exceptions to the recommended order."); Rule 28-106.217(1), F.A.C. ("Parties may file

exceptions to findings of fact and conclusions of law contained in recommended orders with the

agency responsible for rendering final agency action within 15 days of entry of the

recommended order ... ")That is why recommended orders issued by DOAH have a "Notice of

Rights to Submit Exceptions" at the end, to give notice that the parties may submit exceptions.

As ALJ FFOLKES did not give the standard "Notice of Rights to Submit Exceptions" on the

ORDER OF DISMISSAL, it is apparent that ALJ FFOLKES did not consider the ORDER OF

DISMISSAL to be a recommended order.

FINDINGS OF THE ORDER OF DISMISSAL

13. In the ORDER OF DISMISSAL, ALJ FFOLKES found that DOAH and the

DISTRICT lacked subject matter jurisdiction. The apparent reason seems to be that DOAH and

the DISTRICT were divested of jurisdiction due to the appeal:

The lower tribunal canoot conduct further proceedings and enter orders that

would affect or interfere with the subject matter ofthe appeal, and thus impinge

on the appellate court's power and authority to decide the issues raised. See Bailey

v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981).

A separate lower tribunal is also without jurisdiction to proceed with

subject matter that is pending on appeal. See Dep't of Rev. ex rel. Simmons v.

Wardlaw, 25 So. 3d 80, 82 (Fla. 4th DCA 2009). The lower tribunal cannot act if

it would interfere with the subject matter of a pending appeal. See Casavan v.

Land O'Lakes Realty, Inc. of Leesburg, 526 So. 2d 215,216 (Fla. 5th DCA 1988).

Neither the District nor DOAH may proceed because the appellate court's

jurisdiction also includes the legal issue raised by Petitioners.

(ORDER OF DISMISSAL at page 3) (Emphasis supplied); However, at the time ALJ FFOLKES

issued the ORDER OF DISMISSAL, ALJ FFOLKES had been informed that the First District

Court of Appeal was considering a stay of the appeal and relinquishing jurisdiction to DOAH to

proceed. See, Fla. R. App. P. 9.600(b) (Stating that, "[T]he court by order may pennit the lower

tribunal to proceed with specifically stated matters during the pendency of the appeal.")

Therefore it would seem as though the proper course would have been to hold the proceedings

before DOAH in abeyance and allow the First District Court of Appeal to rule on the motion to

stay appeal and relinquish jurisdiction to DOAH to proceed with a hearing on the PETITION.

14. However, ALJ FFOLKES also gave another reason for issuing the ORDER OF

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DISMISSAL as follows:

Petitioners argue that they should be able to file a new petition challenging

the Permit based on Florida Administrative Code Rule 40B-1.1010(2)(a). The

new petition essentially challenges a legal ruling made by the judge in the Seven

Springs Water case regarding the licensing provision in section 120.60(1), Florida

Statutes. The District responded to the Order to Show Cause on Aprill2, 2021.

The District's response reflects its understanding that it has invoked the

jurisdiction of the First DCA to review final agency action. See§ 120.68(1), Fla.

Stat. (2020); Sowell v. State, Dep't of Rev., 136 So. 3d 1285 (Fla. 1st DCA 20 14);

Hill v. Div. of Retirement, 687 So. 2d 1376 (Fla. 1st DCA 1997).

Petitioners contend that the District's mle 40B-1.1010(2)(a) allows their

new petition. However, such an interpretation of the rule cannot be condoned

by the undersigned. Such an interpretation would mean that the

administrative adjudicatory process would never come to an end as new and

former petitioners attempt to get the same tribunals, DOAH and the Dish·ict, to

rehear an unfavorable legal ruling. The appropriate remedy is to appeal the final

agency action.

(ORDER OF DISMISSAL at page 2) (Emphasis supplied)

15. The operative provisions of Rule 40B-1.1010(2)(a), F.A.C. provide, "If final

agency action materially differs from a written notice of the DISTRICT's intended action,

persons who may be substantially affected shall have an additional 21 days, or for a notice of

consolidated intent an additional14 days, from the date of receipt or publication of notice of

such action to request an adminish·ative hearing." MALWITZ-JIPSON argues that as the

DISTRICT's intended action was to deny the PERMIT and the DISTRICT' final agency action

was to grant the Permit, the DISTRICT's final action "materially differs" from its intended

action triggering Rule 40B-1.1010(2)(a)'s reopening of a 14 day window to file a petition.

16. But AU FFOLKES ruled that MALWITZ-JIPSON's interpretation of Rule 40B-

1.1010(2)(a), F.A.C. "cannot be condoned" because it "would mean that the administrative

adjudicatory process would never come to an end as new and former petitioners attempt to get

the same tribunals, DOAH and the District, to rehear an unfavorable legal ruling." (ORDER OF

DISMISSAL at page 2) As the DISTRICT has now taken final agency action on the PERMIT,

and the rule only reopens a single 14 day window to file a petition after the DISTRICT takes

final action, it is unclear why ALJ FFOLKES believes that MALWITZ-JIPSON's interpretation

"would mean that the administrative adjudicatory process would never come to an end." ALJ

FFOLKES did not offer what other possible interpretation of Rule 40B-l.l 01 0(2)(a), F.A.C.

could be "condoned" or find that Rule 40B-1.1010(2)(a), F.A.C. was invalid.'

'It is also worth noting that the operative language from the DISTRICT's Rule 40B-.l.l010(2)(a),

F.A.C. is substantially the same as the operative language contained in (I) the St. Johns Water

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17. Therefore it seems likely that ALJ FFOLKES's belief that MALWITZ-JIPSON's

interpretation of Rule 40B-1.1010(2)(a), F.A.C. "cannot be condoned" is the reason ALJ

FFOLKES chose not to hold the DOAH proceedings in abeyance to wait for the First District

Court of Appeal's ruling on the motion to stay and for relinquishment of jnrisdiction and entered

the ORDER OF DISMISSAL.

EXCEPTIONS

18. While MALWITZ-JIPSON filed exceptions, the statutory provisions concerning

exceptions, including the requirement for the DISTRICT to rule on the exceptions, apply only to

recommended orders. See, Section 120.57(1)(1<), fla.="" stat.="" ("the="" agency="" shall="" allow="" each="">

15 days in which to submit written exceptions to the recommended order. The final order shall

include an explicit ruling on each exception ... ")

19. As the ORDER OF DISMISSAL is not a recommended order, the requirements

concerning exceptions do not apply and this final order need not include an explicit ruling on

MALWITZ-JIPSON's exceptions.

DISTRICT MAY NOT MODIFY OR DEVIATE FROM ALJ FFOLKES RULING

20. Section 120.57(1)(1), Fla. Stat., which provides statutory authority for an agency

to modify or reject an ALJ's findings of facts and/or conclusions oflaw, concerns only

"recommended orders" and is therefore inapplicable to the ORDER OF DISMISSAL.

21. Further, the ORDER OF DISMISSAL was cast as an order determining DOAH's

"subject matter jurisdiction" The DISTRICT does not believe it has the authority to overrule

ALJ FFOLKES on the issue of DO Al-I's subject matter jurisdiction and compel DOAH to

exercise jurisdiction which ALJ FFOLKES has ruled that DOAH lacks.

22. Therefore, the DISTRICT is compelled to dismiss the PETITION for the reasons

Management District's rule 40C-1.1007(2)(a) ("If the District's Governing Board takes action

which substantially differs from a written notice of the District's decision describing intended

action, persons who may be substantially affected shall have an additional 21 days, ... from the

date of receipt of notice of said action to request an administrative hearing ... "); (2) the

Southwest Florida Water Management District's rule 40D-l.l 01 0(2)( a) ("If final agency action

materially differs from a written notice of the District's intended action, persons who may be

substantially affected shall have an additional 21 days, or for a notice of consolidated intent an

additional 14 days, from the date of receipt or publication of notice of such action to request an

administrative hearing."); and (3) the South Florida Water Management District's rule

40E-0.109(2) ("If the District takes action which substantially differs from the notice of intended

agency decision, the applicant or persons who may be substantially affected shall have an

additional point of entry pursuant to Rule 28-106.111, F.A.C., unless otherwise provided by

law.")

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set out in the ORDER OF DISMISSAL.

ORDER

The PETITION is dismissed, with prejudice, for the reasons se t out in the ORDER OF

DISMISSAL.

JUDICIAL REVIEW

Any party to this proceeding has the right to see k judicial review of this F in al Order

pursuant to Section 120.68, Florida Statutes , by fi l ing a Notice of Appeal pm s uant to Rules

9.110 and 9. 190 , Florida Rules of Appellate Pro ce dure, with the clerk of the Suwannee River

Water Management District, 9225 CR 49, Live Oak , Florida 32060; and by filing a copy of the

Notice of Appea l accompanied by the applicable filing fees with the appropriate District Court

of Appeal.

The Notice of Appea l must be filed within 30 days from the date this Fina l Order is fi l ed

w ith the clerk of the Suwannee River Water Management District.

DONE and ORDERED on __ ____ , 2021.

GOVERNING BOARD OF THE SUWANNEE

RIVER WATER MANAGEMENT DISTRICT

----- ----:::::::,

:::::V irginia H. Johns

Chair

(The rem a inder of this page was intentionally left blank.)

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CERTIFICATE OF FILING

I HEREBY CERTIFY that the above orde r was filed with the Suwannee Riv er Wat e r

Management District on ---"'1/t_._Pl--'-Y_(_/ ___ _

CERTIFICATE OF SERVICE

I HEREBY CERTIFY th at a copy of the above orde r was pro v ided to:

Frederick T. Reeves Douglas P. Manson

5709 Tida l wave Drive Craig Varn

New Port Richey, Flori d a 34652 Paria Shirzadi Heeter

Email: freeves @t bayla w . com 109 N. Br u s h Street , Suite 300

jeckelkamp @ tbaylaw .com Tampa , Flor id a 33602

Ema il: dmanson @ man so nbolves.com

cvarn@mansonbo l ves.com

[e-mail]

drodriguez @ mansonbolve s .com

John Hemy November

2029 Third Street Nmth

Jacksonville Beach , Florida 32250

Ema il: J o hn@A nder son November. com

by email on ___ _

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EXHIBIT ''A''