04-002872RU Alachua Leadership Alliance-Citizens Helping Us All, Inc., Robert A. Perez, Thalia Gentzel, And Madalene Rhyand vs. Department Of Community Affairs Status: Closed DOAH Final Order on Friday, January 7, 2005.

Summary: Respondent`s refusal to initiate an administrative proceeding against the City is not a statement of "general applicability" and therefore is not a rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALACHUA LEADERSHIP ALLIANCE - )

CITIZENS HELPING US ALL, INC.; )

ROBERT A. PEREZ; THALIA )

GENTZEL; AND MADALENE RHYAND, )

)

Petitioners, )

)

vs. ) Case No. 04 - 2872RU

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondent. )

)

FINAL ORDER

On October 21, 2004, an administrative hearing in this case

was held in Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Ad ministrative Hearings.

APPEARANCES

For Petitioners: David J. Russ, Esquire

601 South Main Street, Suite 9J - 5

Gainesville, Florida 32601

For Respondent: Shaw P. Stiller, Esquire

Dep artment of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The issue in the case is whether a statement made by a

representative of Respondent Department o f Community Affairs in

a letter to legal counsel for Petitioners, and statements made

in a Final Order of Dismissal entered by Respondent, constitute

unpromulgated rules in violation of applicable Florida law.

PRELIMINARY STATEMENT

By Petition filed with the Division of Administrative

Hearings (DOAH) on August 16, 2004, Petitioner alleged that a

letter dated July 20, 2004, in which Respondent declined to

initiate administrative proceedings against the City of Alachua

under the provisions of Subsection 163 .3191(11), Florida

Statutes (2004), constituted an "illegal rule." Subsection

163.3191(11), Florida Statutes (2004), permits Respondent to

initiate an administrative proceeding against a local government

that fails to timely adopt comprehensive plan amend ments related

to the local government's "Evaluation and Appraisal Report."

By Notice of Hearing dated August 20, 2004, the hearing was

scheduled to commence on September 16, 2004.

By Motion to Dismiss filed September 3, 2004, Respondent

asserted that th e Petition failed to comply with the

requirements of Subsection 120.56(4), Florida Statutes (2004).

By Order dated September 8, 2004, the Motion to Dismiss was

granted without prejudice and Petitioner was directed to file an

amended petition.

On Septemb er 22, 2004, Petitioner filed an Amended Petition

Challenging Agency Statements and Unadopted Rules alleging that

Respondent's refusal to initiate enforcement proceedings against

the City of Alachua under Subsection 163.3191(11), Florida

Statutes (2004), t he June 20, 2004, letter referenced

previously, and Respondent's August 31, 2004, Final Order of

Dismissal related to Petitions for Hearing and for Rulemaking,

constituted invalid unadopted rules.

The Amended Petition Challenging Agency Statements and

Un adopted Rules specifically identified the challenged

statements as follows:

The statements in the letter and order

constitute statements that should have been

but have not been adopted by rule because

they establish the right of affected persons

to receive relief through the agency's

prosecution against local governments to

force them to adopt timely amendments to

their comprehensive plans based on EARs.

By Notice of Hearing dated September 24, 2004, the hearing

was scheduled to commence on October 21, 200 4.

At the hearing, Petitioner presented the testimony of three

witnesses and had Exhibits numbered 1 through 8 and 11 admitted

into evidence. Respondent presented the testimony of one

witness and had Exhibits numbered 1 through 20 admitted into

evidence .

At the close of the hearing, the record remained open for

five days to permit the filing of Petitioner's Exhibits

identified as 9, 10, and 12 that were not available at the

hearing. The exhibits were never filed and have not been

considered in the p reparation of this Final Order.

The one - volume Transcript of the hearing was filed on

November 15, 2004. Based on an unopposed motion filed by

Respondent, by Order Granting Extension dated November 23, 2004,

the deadline for filing proposed final orders was December 7,

2004. Respondent's Proposed Final Order was timely filed.

Petitioner's Proposed Final Order was filed on December 8, 2004.

FINDINGS OF FACT

1. Petitioner Alachua Leadership Alliance - Citizens Helping

Us All, Inc. (ALA - CHUA), is a corpo ration created to represent

the interests of certain citizens within the community, to

"share information with the community," and to be "a citizen's

watchdog group overlooking the expenditures" of funds. ALA - CHUA

holds regular meetings, attends public me etings, and initiates

litigation. ALA - CHUA president Tamara Kay Robbins and ALA - CHUA

member Eileen McCoy testified at the hearing.

2. Petitioners Robert A. Perez, Thalia Gentzel, and

Madalene Rhyland, did not testify at the hearing.

3. Respondent is the state agency charged with

administration of the Local Government Comprehensive Planning

and Land Development Regulation Act ("Act"), Chapter 163, Part

II, Florida Statutes.

4. As stated at Subsection 163.3161(2), Florida Statutes

(2004), the purpose o f the Act is to "utilize and strengthen the

existing role, processes, and powers of local governments in the

establishment and implementation of comprehensive planning

programs to guide and control future development." The Act

requires local governments t o adopt comprehensive plans that

address numerous areas of responsibility.

5. As set forth at Subsection 163.3191(1), Florida

Statutes (2004), each local government is required to adopt an

evaluation and appraisal report ("EAR") to assess "the progress

in implementing the local government's comprehensive plan" and

identifying portions of the plan that require updating.

6. Subsection 163.3191(9), Florida Statutes (2004),

requires that Respondent establish a schedule for adoption of

EARs that provides " each local government at least 7 years

from plan adoption or last established adoption date for a

report. . . ."

7. After the EAR is completed, it is submitted to

Respondent for a "sufficiency determination" as required at

Subsection 163.3191(6), Florida Statutes (2004). Once

Respondent determines an EAR to be sufficient, the local

government is required to adopt within 18 months from the

sufficiency determination, EAR - related comprehensive plan

amendments. Subsection 163.3191(10), Florida Statutes (200 4),

provides that the 18 - month deadline may be extended for six

months by Respondent for "good and sufficient cause" and may

again be extended if the additional extension would "result in

greater coordination between transportation and land use, for

the pu rposes of improving Florida's transportation system."

8. Subsection 163.3191(11), Florida Statutes (2004),

provides as follows:

The Administration Commission may impose the

sanctions provided by s. 163.3184 (11)

against any local government that fails to

adopt and submit a report, or that fails to

implement its report through timely and

sufficient amendments to its local plan,

except for reasons of excusable delay or

valid planning reasons agreed to by the

state land planning agency or found present

by th e Administration Commission. Sanctions

for untimely or insufficient plan amendments

shall be prospective only and shall begin

after a final order has been issued by the

Administration Commission and a reasonable

period of time has been allowed for the

loc al government to comply with an adverse

determination by the Administration

Commission through adoption of plan

amendments that are in compliance. The

state land planning agency may initiate, and

an affected person may intervene in, such a

proceeding by f iling a petition with the

Division of Administrative Hearings, which

shall appoint an administrative law judge

and conduct a hearing pursuant to ss.

120.569 and 120.57 (1) and shall submit a

recommended order to the Administration

Commission. The affected local government

shall be a party to any such proceeding.

The commission may implement this subsection

by rule.

9. Section 14.202, Florida Statutes (2004), identifies

that the Administration Commission is the Governor and the

Cabinet. The sanctions ava ilable to the Administration

Commission include various restrictions on the eligibility for

and provision of certain state funds to non - complying local

governments.

10. The City of Alachua (City) is a local government with

responsibility for adoption of a comprehensive plan.

11. According to the Respondent's letter to City Mayor

James A. Lewis dated December 29, 1998, the City's EAR was

determined to be sufficient by the Respondent.

12. The 18 - month deadline for the City to adopt EAR -

related comprehens ive plan amendments expired at the end of

June 2000.

13. There were no deadline extensions granted by

Respondent to the City.

14. The City failed to meet the 18 - month deadline for the

adoption of EAR - related comprehensive plan amendments.

15. By l etter dated June 30, 2004, to Thaddeus Cohen,

Secretary of the Department of Community Affairs, David Jon Russ

(counsel for Petitioners) asked Respondent to initiate

proceedings against the City of Alachua under the provisions of

Subsection 163.3191(11), F lorida Statutes (2004), by no later

than July 8, 2004.

16. By letter dated July 20, 2004, David L. Jordan, Deputy

General Counsel for Respondent, advised Mr. Russ that Respondent

"respectfully declines your request to seek sanctions against

the City."

17. The letter further states as follows:

The City transmitted proposed EAR - based

amendments on May 12, 2004, and the

Department issued its Objections,

Recommendations, and Comments ("ORC") report

on July 16, 2004. Although the ORC report

raises some ob jections to the proposed EAR -

based amendments, the Department believes

that the City can revise the amendments to

resolve those objections. Therefore, the

City is on course to adopt sufficient plan

amendments to implement the EAR.

The Department will n ot commence litigation

to force the City to perform a duty that the

City is already performing.

18. Subsection 163.3184(7), Florida Statutes (2004),

provides that a local government has 120 days from the date of

the ORC report to adopt (or adopt with c hanges) the EAR - based

amendments. Accordingly, the deadline for the City to adopt the

amendments was November 15, 2004. The City adopted the EAR -

based amendments on September 13, 2004.

19. In response to the Jordan letter dated July 20, 2004,

on Augus t 16, 2004, Petitioners filed with Respondent a Petition

for Hearing on Decision Affecting Substantial Interests and for

Rulemaking, stating that Petitioners "demand a hearing before

DOAH, a recommended order finding the action illegal, a final

order adopt ing it, and rule - making by the Department." The

Petition indicates that Petitioners desire a hearing on

Respondent's decision not to initiate administrative proceedings

against the City and to require Respondent to initiate

rulemaking related to Subsectio n 163.3191(11), Florida Statutes

(2004).

20. On August 31, 2004, Respondent entered a Final Order

Dismissing Petition, in which Petitioners' requests were

dismissed with prejudice. The Final Order was not appealed.

21. As grounds for the dismissal of the request for

hearing, the Final Order of Dismissal stated that Petitioners

failed to "identify any interest protected by pertinent

substantive law that will suffer injury by virtue of the

Department's decision not to seek sanctions against the City"

an d that Petitioners failed to identify any substantive right

protected under Section 163.3191, Florida Statutes (2004).

22. As grounds for dismissal of the request for

rulemaking, the Final Order noted that Subsection 163.3191(11),

Florida Statutes (2004), vests authority for adoption of rules

related to implementation of the subsection in the

Administration Commission, and that Respondent had no authority

to initiate rulemaking.

23. The evidence presented at the hearing established that

Respondent's gen eral policy is to encourage and negotiate with

non - complying local governments, and that various types of

technical and financial assistance is available to local

governments, depending on the circumstances, to enable such

compliance.

24. The evidence f urther established that Respondent would

initiate Subsection 163.3191(11) proceedings against a non -

complying local government if the local government failed to

proceed into compliance after receiving appropriate technical

and financial assistance from Res pondent.

25. As of the date of the hearing, Respondent has not

initiated Subsection 163.3191(11) proceedings against a local

government for failing to timely adopt EAR - based comprehensive

plan amendments. There is no evidence that any local government

has failed to come into compliance with applicable comprehensive

plan requirements after receiving assistance from Respondent.

26. There is no evidence that Respondent has made any

statement indicating that it would never initiate proceedings

against an y local government under the provisions of Subsection

163.3191(11), Florida Statutes (2004).

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.56(4), Fla. St at. (2004).

28. Subsection 120.56(4)(a), Florida Statutes (2004),

provides that a person "substantially affected by the agency

statement" may challenge the statement as an unpromulgated rule.

Petitioners have failed to establish facts sufficient to

demo nstrate that they are substantially affected by the

statements at issue in this case and have therefore failed to

establish standing to maintain this proceeding.

29. To establish standing to maintain a challenge under

Section 120.56, Florida Statutes (200 4), an organization must

demonstrate that a substantial number of its members, although

not necessarily a majority, are "substantially affected" by the

challenged rule. Further, the subject matter of the rule must

be within the association's general scope of interest and

activity, and the relief requested must be of the type

appropriate for a trade association to receive on behalf of its

members. Florida Home Builders Assn. v. Dept. of Labor and

Employment Sec. , 412 So. 2d 351, 353 - 354 (Fla. 1982).

30. A s to Petitioner ALA - CHUA, the evidence is

insufficient to establish standing to challenge the statements.

ALA - CHUA allegedly includes between 20 and 70 members. Two ALA -

CHUA members (ALA - CHUA president Tamara Kay Robbins and member

Eileen McCoy) testifie d at the hearing, as to "injuries"

allegedly suffered related to land use decisions made by the

City during the period of time the EAR was due and uncompleted.

No other ALA - CHUA members testified, and there was no credible

testimony as to impacts on other members. The evidence in this

case fails to establish that a substantial number of ALA - CHUA

members were "substantially affected."

31. Even assuming that the evidence established that a

substantial number of ALA - CHUA members were "substantially

affected " by the challenged statements, there is insufficient

evidence to establish any injury related to the agency

statements to maintain standing. The asserted injuries include

concerns expressed by Ms. Robbins and Ms. McCoy about

groundwater, infrastructure, and transportation issues related

to a 1,900 - acre industrial - zoned property (the "Waco" property)

upon which the City has and is continuing to permit development.

There is no credible evidence that Respondent's refusal to

initiate an administrative procee ding under Subsection

163.3191(11), Florida Statutes (2004), would have prevented or

altered the City's actions related to the Waco property.

32. Petitioners Robert A. Perez, Thalia Gentzel, and

Madalene Rhyland did not attend or testify at the hearing. The

only evidence offered at the hearing related to Petitioners

Perez, Gentzel, and Rhyland was the hearsay testimony of other

witnesses. The evidence related to Petitioners Perez, Gentzel,

and Rhyland is not sufficient to support a Finding of Fact. Se e

§ 120.57(1)(c), Florida Statutes (2004).

33. Assuming that standing had been established,

Petitioner has the burden, in the absence of a statutory

directive to the contrary, of establishing by a preponderance of

evidence that the cited statements cons titute unpromulgated

rules. Dravo Basic Materials Co., Inc., v. Department of

Transportation , 602 So. 2d 632 (Fla. 2d DCA 1992); Florida

Department of Transportation v. J.W.C. Company , 396 So. 2d 778

(Fla. 1st DCA 1981). The burden has not been met.

34. The Amended Petition Challenging Agency Statements and

Unadopted Rules identified the challenged statements as follows:

The statements in the letter and order

constitute statements that should have been

but have not been adopted by rule because

they estab lish the right of affected persons

to receive relief through the agency's

prosecution against local governments to

force them to adopt timely amendments to

their comprehensive plans based on EARs.

35. The statements in the letter and order do not

constit ute "rules." Subsection 120.52(15), Florida Statutes

(2004), in relevant part defines a "rule" as follows:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or p ractice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

(emphasis supplied)

36. The statements challenged in this case are not

stateme nts of "general applicability." Other than as to

Respondent's lack of rulemaking authority related to Subsection

163.3191(11), Florida Statutes (2004), the statements have no

applicability outside the context of this case.

37. As stated in Environmenta l Trust v. State, Dept. of

Environmental Protection , 714 So. 2d 493, 498 (Fla. 1st DCA

1998):

An agency statement explaining how an

existing rule of general applicability will

be applied in a particular set of facts is

not itself a rule. If that were tru e, the

agency would be forced to adopt a rule for

every possible variation on a theme, and

private entities could continuously attack

the government for its failure to have a

rule that precisely addresses the facts at

issue. Instead, these matters are lef t for

the adjudication process under section

120.57, Florida Statutes.

38. Petitioner's Petition for Hearing on Decision

Affecting Substantial Interests was dismissed with prejudice by

Respondent's August 31, 2004, Final Order Dismissing Petition,

from which no appeal was taken.

39. There is no evidence that Respondent has made any

statement, or otherwise indicated, that it would never initiate

proceedings against any local government under the provisions of

Subsection 163.3191(11), Florida Statutes ( 2004). To the

contrary, the evidence establishes the circumstances under which

the agency would decide to initiate such proceedings.

40. Had the evidence established that Petitioners had

standing and that the challenged statements were unpromulgated

rules, the burden would have shifted to Respondent to

demonstrate that rulemaking was not feasible and practicable.

§ 120.56(4)(b), Fla. Stat. (2004). Here, Subsection

163.3191(11), Florida Statutes (2004), clearly vests authority

for adoption of related rules in the Administration Commission.

Respondent has no authority to promulgate rules to implement

Subsection 163.3191(11), Florida Statutes (2004).

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Amended Petition Challenging Agency

Statements and Unadopted Rules is dismissed.

DONE AND ORDERED this 7th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

D ivision 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 7th day of January, 2005.

COPIES FURNISHED :

David J. Russ, Esquire

601 South Main Street, Suite 9J - 5

Gainesville, Florida 32601

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

S cott Boyd

Executive Director and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallah assee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL 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 Rules

of Appellat e Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First Distric t, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.