21-001180 Our Santa Fe River, Inc., Florida Springs Council, Inc., And Michael Roth 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.

3. On March 25, 2021, the DISTRICT appealed Final Order No. 21-003 to the First

District Court of Appeals where it was assigned Case No. lD21-0888.

4. On March 30,2021, the DISTRICT referred the PETITION to DOAH where it

was assigned to ALJ FFOLKES.

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 unless the appeals court allows the lower tribunal to proceed.

6. On Aprilll, 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 April 12, 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

ADMINISTRATNE HEARING, a copy of which was attached.

8. On April14, 2021, ALJ FFOLKES entered the ORDER OF DISMISSAL. 1n 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 April28, 2021, COUNCIL filed its PETITIONERS' EXCEPTIONS TO

DIVISION OF ADMINISTRATIVE HEARINGS' ORDER DISMISSING PETITION AND

CLOSING FILE setting out its exceptions to the ORDER OF DISMISSAL.

STATUS OF THE ORDER OF DISMISSAL

10. The ORDER OF DISMISSAL is not a recommended order. The term

"recommended order" is defined inCh. 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 under 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.

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

DISTRICT and DOAH lack jurisdiction. ALJ FFOLKES finds that "a tribw1al has jurisdiction

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to detem1ine its own jurisdiction" (ORDER OF DISMISSAL at page I) and then rules that

"Neither the District nor DOAH 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

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,

Sectionl20.57(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 calll1ot conduct fi1rther proceedings and enter orders that

would affect or interfere with the subject matter of the 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 rei. 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 comt by order may permit the lower

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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

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 2014);

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

Petitioners contend that the District's rule 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, DO AI-I and the District, 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 additional 14 days, from the date of receipt or publication of notice of

such action to request an administrative hearing." COUNCIL 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-l.!Ol0(2)(a)'s reopening of a 14 day window to file a petition.

16. But ALJ FFOLKES ruled that COUNCIL's interpretation of Rule 40B-

l.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 COUNCIL's interpretation "would

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

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did not offer what other possible interpretation of Rule 408-1.101 0(2)(a), F.A.C. could be

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

17. Therefore it seems likely that ALJ FFOLKES's belief that COUNCIL's

interpretation of Rule 40B-1.1 01 0(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 jurisdiction and entered

the ORDER OF DISMISSAL.

EXCEPTIONS

18. While COUNCIL 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 )(k), Fla. Stat. ("The agency shall allow each party

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

COUNCIL'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 ALI's findings of facts and/or conclusions of law, concems 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

'It is also worth noting that the operative language from the DISTRICT's Rule 40B-1.1010(2)(a),

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

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 additional21 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-1.1 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 additional21 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

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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" subject matte r jurisd i ct i on" T h e DISTRICT doe s not b e l ieve it ha s the author i t y to ovenLJle

ALJ FFOLKES on the is s ue ofDOAH 's s ubject matter juri s diction and compe l DOAH to

exercise jmisdiction which ALJ FFOLKES ha s ru l ed that DOAH lack s .

22. Therefore , the DISTRICT i s compelled to di s mi ss the PETITION for th e rea s on s

s et out in the ORDER OF DISMISSAL.

ORDER

The PETITION i s di s missed , with prejudice , for t h e rea s ons set out in t h e ORDER OF

DISM I SSAL.

JUDICIAL REVIEW

Any party to this proceeding ha s th e righ t to s eek judicial review of t hi s Final Order

pursuant to Sectio n 120.68 , Florida Statutes , by filing a Notice of Appea l pur s uant to R ul es

9 . 110 and 9 . 190 , F l orida Ru l e s of Appellate Procedure , with the clerk of t h e Suwannee River

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

No tic e of Appea l accompani e d by the applicable filing fees wit h th e app r optia t e District Comi

of Appeal.

The N otice of Appea l m u s t be filed within 30 day s fi · om the date thi s Fina l Order is filed

with the cle r k of t h e Suwannee River Water Management Di s tri c t.

DONE and ORDERED on _ -'----'--- \\'C'\\ _____,_, o....,tj"'<--\\"--'\\ -----="" -="" '="" 202="">

GOVERNING BOARD OF THE SUWANNEE

RNER WATER MANAGEMENT DISTRICT

C hair

Secretary I Treas rer

(The remainder of th i s page was intentionally l e ft bl ank.)

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CERTIFICATE OF FILING

I HEREBY CERTIFY that the above order was fi l ed with the Suwannee River Water

Management District on /111/ Y // , 2021.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the above order was provided to:

Doug l a s H. MacLaugh l in John Jopling

3 1 9 Greenwood Drive 2631NW 4 1 st Street

West Palm Beach , FL 33405 Gainesville , FL 32606 - 6689

Emai l : dmaclaughlin (a{ aol.com John . joplin@dellgraham . com

Frederick T. Reeves Douglas P. Manson

5709 Tidalwave Drive Craig Vam

New Port Richey , Florida 34652 Paria Shir z adi Heeter

Email : freeves@tbaylaw . com 109 N. Bmsh Street, Suite 300

j [e-mail] Tampa , Florida 33602

Emai l : dman s [e-mail]

cvarn@ man so n bo I ves . co m

ph eeter@manson b o l ves. com

drodriguez@mansonbolves . com

by emai l on Jt;a // , 202 1.

epu ty L llCTogn p '"'( f

Suwannee River Water Management District

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EXHIBIT ''A''