16-006135RU Town Of Jennings vs. Department Of Economic Opportunity Status: Closed DOAH Final Order on Tuesday, November 22, 2016.

Summary: Town failed to prove that agency relied on an unadopted rule in denying its block grant application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF JENNINGS,

Petitioner ,

vs. Case No. 1 6 - 6135R U

DEPARTMENT OF ECONOMI C

OPPORTUNITY,

Respondent .

_______________________________ /

SUMMARY FINAL ORDER

This cause is before the undersigned on the Department of

Economic Opportunity's (Department's) Motion for Summary Final

Order (Motion) filed on November 10, 2016 . The Town of Jennings

(Town) filed a response on November 17, 2016. Pending a ruling

on the Motion, the final hearing on November 18, 2016, was

continued to December 22, 2016.

Section 120.57(1)(h), Florida Statutes , governs th e

disposition of the Motion and provides in relevant 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 f inal order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affida vits, 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 of

a final order.

The record submitted by the parties consists of the

pleadings (including the Department 's re jection letter dated

June 3, 2016) , an affidavit by the Town Manager, and one exhibit

(the second public hearing notice) attached to the affidavit.

By way of background, the undisputed facts are as follows.

By letter dated June 3 , 2016, the Department denied t he Town's

application for a housing rehabilitation block grant on the

following ground :

The Town's second public hearing notice did

not state where and when a copy of the draft

application would be available for citizen

review, except at the public hearin g. The

requirement for making the draft application

available for review was clarified in the

rule revision that was adopted prior to the

start of the FFY 2015 application cycle.

The letter then identified in bold font th e notice

requirement found in F lorida Administrative Code Rule 73C -

23.0041(5)(c) 2. a. , which provides in relevant part that the

second public notice hearing "shall also state where and when,

other than at the public hearing, a copy of the draft

application shall be available for citizen review and how

citizens can submit written comments on the draft application."

The rule goes on to warn an applicant that a "[f]ailure to

include all of the required information in the public hearing

notice shall result in the application being rejected as

provided in Section 290.0475(6), F.S."

The let ter also informed the Town that th e recent rule

revision regarding notice "was made to ensure that Small Cities

CDBG applicants were complying with the federal requirement

found in 24 Code of Federal Regu lation 570.431(c) . " The letter

then recited subsection (c) of the regulation , which reads as

follows:

(c) Publication of proposed application.

( 1 ) The applicant shall publish a proposed

application consisting of the proposed

community development acti vities and

community development objectives in order to

afford affected citizens an opportunity to:

(i) Examine the application's contents to

determine the degree to which they may be

affected:

(ii) Submit comments on the proposed

application; and

(ii i) Submit comments on the performance of

the applicant.

( 2) The requirement for publishing in

paragraph (c)(1) of this section may be met

by publishing a summary of the proposed

application in one or more newspapers of

general circulation, and by making copies of

the proposed application available at

libraries, government offices, and public

places. The summary must describe the

contents and purpose of the proposed

application, and must include a list of the

locations where copies of the entire

proposed application may be examined.

On October 1 8 , 2016, the Town filed a Rule Challenge

alleging that in denying the application, the Department relied

on criteria found in the federal regulation , rather than the

rule, and th e federal criteria have not been ad opted as a rule

pursuant to section 120.5 4 (1)(a) .

The letter is clear and unambiguous. A reading of the

plain language makes clear that in rejecting the Town's

application, the Department relied solely on the requirements

for the second public hearing n otice found in rule 73C -

23.0041 (5)(c)2. a. Notably, the letter states unequivocally that

the requirement for making the draft application available for

public review was clarified in a recent rule revision ; it

included the entire text of the rule ; and it e mphasized in bold

font the rule's specific requirement that the Town failed to

satisfy.

The reference in the letter to the federal regulation was

intended to provide background for the recent revisions made to

the rule. More importantly, t he letter nev er states that the

application was denied for failing to comply with the

requirements of the regulation.

To grant the Motion, the facts must be so crystallized that

nothing remains but questions of law. Spears v. Albertson's,

Inc. , 848 So. 2d 1176, 11 77 - 1178 (Fla. 1st DCA 2003). In its

response, the Town argues that a factual dispute still exists on

the issue of whether the Department relied on its rule or the

regulation. As the Town was clearly informed in the letter ,

however, its " second public hea ring notice did not state where

and when a copy of the draft application would be available for

citizen review, except at the public hearing . " This statement

tracks almost verbatim the language in the rule. 1/

The record submitted by the parties demonst rates that t he re

is no genuine issue as to any material fact and , as a matter of

law, the Department is entitled to the entry of a final order. 2/

This being so, the Motion is granted, and the final hearing on

December 22, 2016, is canceled. Based on the foregoing, it is,

ORDERED that the federal regulation cited in the letter

dated June 3, 2016, is not an un lawful un adopted rule.

DONE AND ORDERED this 22nd day of November , 201 6 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 22nd day of November , 201 6 .

ENDNOTE S

1/ The letter points out that every application submitted by a

small city during the application cycle was denied for the same

reason and a new application cycle would be opened in July 2016 .

2/ The Town also argu es that the affidavit and exhibit

demonstrate, conclusively, that its notice complied with the

rule. However, the merits of the application are not at issue.

COPIES FURNISHED:

Brant L. Hargrove , Esquire

Law Office s of Brant Hargrove

1291 Cedar Center D rive

Tallahassee, Florida 32301 - 4877

(eServed)

Ross Marshman, Esquire

Department of Economic Opportunity

107 East Madison Street, MSC 110

Tallahassee, Florida 32399 - 6545

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Ro om 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

James W. Poppell, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 3239 9 - 4128

(eServed)

NOTICE OF RIGHT T O 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 Appellate Procedure. Such proceedings are commen ced by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.