03-002711RU David L. Mcsherry; December Mcsherry; Dwight Adams; Sierra Club, Inc.; Sustainable Alachua County, Inc.; And Saving Florida, Inc. vs. Department Of Community Affairs Status: Closed DOAH Final Order on Monday, August 18, 2003.

Summary: Legal opinion of counsel for Department of Community Affairs does not rise to the level of an unpromulgated rule. Motion for Summary Final Order is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID L. MCSHERRY; DECEMBER )

MCSHERRY; DWIGHT ADAMS; SIERRA )

CLUB, INC.; SUSTAINABLE ALACHUA )

COUNTY, INC.; AND SAVING )

FLORIDA, INC., )

)

Petitioners, )

)

vs. ) Case No. 03 - 2711RU

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Responden t. )

)

SUMMARY FINAL ORDER

This cause originated from action of counsel for the

Department of Community Affairs (DCA). By e - mail dated July 3,

2003, in the case of Preserving Rural Property Values, Inc., et

al., vs. Alachua County, et al. , DOAH Case No. 02 - 2676, DCA's

counsel advised the county attorney for Alachua County as

follows:

[Y]ou may advise the Commission, if you wish,

that the Department is unaware of a ny

violation of Florida Statutes relating to the

mediation and settlement negotiations.

Certainly the facts set forth in Mr. Russ's

letter do not constitute a violation.

Subsequently, Counsel for Petitioners filed a Petition

alleging that the foregoing statement of counsel for DCA

constituted an unpromulugated rule in violation of Section

120.54(1)(a), Florida Statutes.

In response, DCA filed a Motion for Summary Final Order on

August 4, 2003, requesting dismissal of the Petition on the

basis that the statement of its counsel did not constitute a

rule as that term is defined in Chapter 120, Florida Statutes .

By separate motion dated August 6, 2003, Petitioners moved

to strike the motion of the Department, stating that the

Department's motion failed t o dispute any fact alleged by the

Petitioners in their initial Petition.

By order dated August 6, 2003, counsel for Petitioners was

directed to respond to DCA's Motion for Summary Final Order no

later than August 14, 2003. Counsel for Petitioners timely

responded to the undersigned's order.

A review of the Motion for Summary Final Order, Response of

Petitioners to DCA's Motion for Summary Final Order, and other

pleadings filed in this matter has been completed.

Accordingly, ruling at this time upon DC A's Motion for

Summary Final Order appears to be in order and in the best

interest and most effective use of the administrative law

system.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction

over the parties to, and the s ubject matter of, this proceeding

pursuant to Section 120.56, Florida Statutes.

2. Petitioners allege that DCA, through DCA's counsel, has

adopted a policy. Counsel's statement of DCA's position is

nothing more than his legal opinion and, without more, d oes not

rise to the level of stated agency policy. Therefore, it is not

a rule as defined in Section 120.52(15), Florida Statutes.

3. Subsection 120.57(1)(h), Florida Statutes, reads in

pertinent part as follows:

Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judg e

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry o f

a final order.

Accordingly, upon review of the pleadings in this matter,

the Motion for Summary Final Order is granted, Final Hearing

scheduled in this cause for August 18, 2003, is cancelled, and

the Petition is dismissed. All other pending motions are

dismissed as moot.

DONE AND ORDERED this 18th day of August, 2003, in

Tallahassee, Leon County, Florida, nunc pro tunc to August 15,

2003.

S

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 18th day of August, 2003.

C OPIES FURNISHED :

David J. Russ, Esquire

4117 Southwest 20th Avenue, No. 61

Gainesville, Florida 32607

Moses E. Williams, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliott Building

Tallahassee, Florida 32399 - 0250

APPELLATE REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES.

REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULE OF APPELLATE

PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILI NG ONE COPY OF A

NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF

ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST

DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN T HE APPELLATE

DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE

FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.