18-004433 John Majka And On Behalf Of Harry E. Miller, Deceased vs. Florida Department Of Transportation Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, January 15, 2019.

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION

JOHN MAJKA AND ON BEHALF OF

HARRY E. MILLER, DECEASED,

Petitioner, DOAH CASE NO. 18-4433

DOT CASE NO. 18-008

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

FINAL ORDER OF DISMISSAL

On February 2, 2018, Petitioner John Majka filed a Request for Administrative Hearing

with the Department of Transportation (Department) on behalf of Harry E. Miller, Deceased.

Petitioner owns adjacent property to, and is the tenant of, the Harry E. Miller property located at

13850 Palm Beach Boulevard, Fort Myers, Florida. In the Request for Administrative Hearing,

Petitioner alleged he represented the Estate of Harry E. Miller and attached a copy of the

Department's December 7, 2017, Notice of Intent to Modify the Driveway Connection (Notice)

for the Miller property. In addition to serving the Petitioner as the adjacent property owner, the

Department sent a certified mail Notice to Harry E. Miller which was returned as undeliverable.

On August 18, 2018, the Department referred Petitioner's request for hearing to the

Division of Administrative Hearings for the assignment of an Administrative Law Judge. On

November 2, 2018, the Department filed a response in opposition to Petitioner's Motion to

Dismiss, filed October 29, 2018, and Motion to Strike, filed October 30, 2018, and argued that

Petitioner lacked standing as he failed to provide any documentation that he represented the

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Estate of Harry E. Miller and failed to establish an entitlement to a Section 120.57 hearing.

On November 6, 2018, the ALJ issued an Order Directing Department to Issue a More

Definitive Statement and Denying Petitioner's Motion to Strike; acknowledged that Petitioner

withdrew the Motion to Dismiss; did not rule on the Department's objection to Petitioner's lack

of standing; and by separate order rescheduled the hearing to January 22, 2019.

On November 9, 2018, the Department filed a Notice of Project Update to Driveway

Connection (Notice Update) replacing the previously proposed 36-foot wide Miller driveway

with a 53-foot driveway. On November 13, 2018, the ALJ issued an Order Granting Extension

of Time for Petitioner to respond to the Department's Notice Update. On November 23, 2018,

with no authority to act on behalf of the Estate of Harry E. Miller, Petitioner rejected the

Department's Project Update to Driveway Connection.

On December 6, 2018, the Department filed a Motion to Compel Identification of the

Representative of the Estate of Harry E. Miller in order to properly serve the Estate 1 and obtain a

position on the Department's Notice Update. On December 12, 2018, Petitioner filed a Motion

to Abate the proceeding which failed to identify the Representative of the Estate of Harry E.

Miller, and included a self-authenticated Letter of Authorization purporting to act on behalf of

the Estate.

On December 13, 2018, the Administrative Law Judge issued an Order Cancelling

Hearing and Requiring the Department to Show Cause as to why jurisdiction should not be

1 Despite the Department's multiple written requests to the Petitioner to identify the Representative of the Harry E.

Miller Estate and mailing address for purposes of serving the Department's Notice of Intent to File Driveway

Modification, no response was provided by the Petitioner. The Department recently discovered the contact

information of the representative of the Estate of Harry E. Miller, and Eldridge Miller was served on January 9,

2019, with the Department's Notice of Filing Project Update to Driveway Connection, a settlement proposal

identifying a 53-foot wide driveway connection to the Miller property.

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relinquished to the Department to properly serve the actual property owner of its intent to take

agency action. The ALJ also noted that Petitioner's Letter of Authorization was "only signed by

Mr. Majka and contains no information about or signature by a representative of the Estate who

purports to grant the authorization." The ALJ questioned whether the critical and necessary

party had received notice of the Department's intended agency action and whether a proper

request for an administrative hearing had been made by that party. Finally, the ALJ's order

provided Petitioner an opportunity to provide "evidence that he had authority to receive the

initial notice of intended agency action dating back to December 7, 201 7, and to represent the

Estate's interests in this proceeding."

On December 21, 2018, the Department filed a Response to ALJ' s Show Cause Order

agreeing that jurisdiction should be relinquished to the Department to serve the Estate of Harry

E. Miller, the critical and necessary party whose prior certified mail service was returned as

undeliverable. Subsequently, on January 2, 2019, the ALJ issued an Order Closing File and

Relinquishing Jurisdiction back to the Department.

On January 14, 2019, Petitioner filed a Response to the Department's Response to the

Show Cause Order and attached an Assignment and Durable Power of Attorney effective on

January 12, 2019, identifying Petitioner as a representative of the Estate for Eldridge R. Miller.

Petitioner's response identified new issues and failed to address the ALJ's Show Cause Order

and failed to provide "evidence that he had authority to receive the initial notice of intended

agency action dating back to December 7, 2017, and to represent the Estate's interests in this

proceeding." Although Petitioner's Response acknowledged the Department's request, he once

again failed to identify the address and telephone number of Eldridge R. Miller, the

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Representative of the Harry Miller estate, necessary to serve the Department's Notice of Project

Update.

On January 15, 2019, the ALJ issued an Order on No Jurisdiction confirming that

jurisdiction was previously relinquished to the Department on January 2, 2019, when the

Division of Administrative Hearings file was closed to allow service on all necessary and critical

parties. Further, the ALJ acknowledged that he lacked jurisdiction to rule on the merits of the

issues raised in Petitioner's response, including the attached power of attorney.

Dismissal of the Request for Administrative Hearing is appropriate as Petitioner John

Majka was not the authorized legal representative of the Harry E. Miller estate when the

Department's Notice of Intent to Modify Driveway Modification was issued on December 7,

2017, nor did he represent the estate on November 9, 2018, when the Department filed the

Notice of Project Update to Driveway Connection which was eventually served on Eldridge

Miller as the Representative ofthe Estate on January 9, 2019 .

CONCLUSIONS OF LAW

1. The Department has jurisdiction over the subject matter of and the parties to this

proceeding pursuant to the ALJ's January 2, 2019, Order Closing File and Relinquishing

Jurisdiction to the Department, and Chapters 120, 334, and 335, Florida Statutes.

2. Petitioner lacked authority to file a Request for Administrative Hearing on behalf

of the Estate of Harry E. Miller, and was not the critical and necessary party with regards to the

Department's December 7, 2017, Notice of Intent to Modify Driveway, or the Department's

December 9, 2018, Notice of Filing Project Update to Driveway Connection for the parcel

owned by the Estate of Harry E. Miller.

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Based on the foregoing, it is

ORDERED that the Petition for Administrative Hearing filed by John Majka, on

February 2, 2018, is dismissed.

DONE AND ORDERED this Jf day of February, 2019 .

Secretary -....:.

Department of Transportation .;l··

Haydon Bums Building ;:;::- IJ

605 Suwannee Street c::;D

Tallahassee, Florida 32399 <>

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NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED

BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND

RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY

FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF

RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE

APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF

AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET,

M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY (30) DAYS OF

RENDITION OF THIS ORDER.

Copies furnished to:

Richard E. Shine, Esquire John Majka

Department of Transportation 18700 Old Bayshore Road

Haydon Bums Building Fort Myers, Florida 33905

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399

Amy E. Blair, P.E. Estate of Harry Miller

Project Management Engineer Supervisor II c/o Eldridge Miller

Department of Transportation, District One 11906 McMullen Loop

801 N. Broadway Avenue Riverview, Florida 33569

Bartow, Florida 33830

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Florida Department of Transportation

RON DESANTIS 605 Suwahtlee Street KEVIN J. THIBAULT, P.E.

GOVERNOR Tallahassee, FL 32399-0450 SECRETARY

DELEGATION OF AUTHORITY

I, Kevin J. Thibault, P.E., Secretary of the Florida Department of

Transportation, delegate to Tom Byron, as the Assistant Secretary for Strategic

Development and the Interim Assistant Secretary for Engineering and Operations,

and April Bhickbum, as the Interim Assistant Secretary for Finance and

Administration, the authority and responsibility to take action on my behalf at

anytime during my absence from the Department headquarters in Tallahassee. I

also rescind any prior delegations to the contrary.

K vin J. , ibaillt, P .E., Secretary

Florida Department of Transportation

Date I (

www.dot.state. n.us