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.
Settled and/or Dismissed prior to entry of RO/FO on Wednesday, April 14, 2021.
13. On March 25, 2021, the DISTRICT appealed Final Order No. 21-003 to the First
16District Court of Appeals where it was assigned Case No. lD21-0888.
274. On March 30,2021, the DISTRICT referred the PETITION to DOAH where it
41was assigned to ALJ FFOLKES.
465. On March 31,2021, ALJ FFOLKES issued an Order to Show Cause directing the
61parties to show cause why the PETITION should not be dismissed for lack of jurisdiction under
77Fla. R. App. P. 9 .600, which provides that lower tribunals are divested of jurisdiction over
93matters which are on appeal unless the appeals court allows the lower tribunal to proceed.
1086. On Aprilll, 2021, the DISTRICT filed in the First District Court of Appeal its
123MOTION TO STAY APPEAL AND RELINQUISH JURISDICTION TO CONSIDER AND
133RULE ON PENDING PETITIONS FOR ADMINISTRATIVE HEARING in which the
143DISTRICT requested the appeals court to stay the appeal and relinquish jurisdiction to allow
157ALJ FFLOKES to proceed with the proceedings before DOAH.
1667. On April 12, 2021, the DISTRICT filed with DOAH a response to the Order to
182Show Cause which requested ALJ FFOLKES to take no action on the Order to Show Cause until
199after the First District Court of Appeal ruled on the MOTION TO STAY APPEAL AND
214RELINQUISH JURISDICTION TO CONSIDER AND RULE ON PENDING PETITIONS FOR
224ADMINISTRATNE HEARING, a copy of which was attached.
2328. On April14, 2021, ALJ FFOLKES entered the ORDER OF DISMISSAL. 1n the
245ORDER OF DISMISSAL, ALJ FFOLKES dismissed the PETITION for "lack of subject matter
258jurisdiction", closed DOAH's file and relinquished jurisdiction to the DISTRICT "for entry of an
272appropriate final order of dismissal." (ORDER OF DISMISSAL at page 3)
2839. On April28, 2021, COUNCIL filed its PETITIONERS' EXCEPTIONS TO
293DIVISION OF ADMINISTRATIVE HEARINGS' ORDER DISMISSING PETITION AND
301CLOSING FILE setting out its exceptions to the ORDER OF DISMISSAL.
312STATUS OF THE ORDER OF DISMISSAL
31810. The ORDER OF DISMISSAL is not a recommended order. The term
"330recommended order" is defined inCh. 120 as follows: "'Recommended order' means the
342official recommendation of an administrative law judge assigned by the division or of any other
357duly authorized presiding officer, other than an agency head or member of an agency head, for
373the final disposition of a proceeding under ss. 120.569 and 120.57." Section 120.52(15), Fla.
387Stat. The ORDER OF DISMISSAL does not use the term "recommended" in its title or in its
404body (except where it references ALJ CHISENHALL's previous recommended orders) and does
416not recommend that the DISTRICT do anything.
42311. But more importantly, the ORDER OF DISMISSAL finds that both the
435DISTRICT and DOAH lack jurisdiction. ALJ FFOLKES finds that "a tribw1al has jurisdiction
448-2-
449to detem1ine its own jurisdiction" (ORDER OF DISMISSAL at page I) and then rules that
"464Neither the District nor DOAH may proceed because the appellate court's jurisdiction also
477includes the legal issue raised by Petitioners." (ORDER OF DISMISSAL page 3) and then, "The
492petition is DISMISSED for lack of subject matter jurisdiction." (ORDER OF DISMISSAL at
505page 3) This is not a recommendation of dismissal, but an order determining that DOAH lacks
521jurisdiction and then outright dismissing the PETITION. Therefore the ORDER OF
532DISMISSAL is not a "recommended" order.
53812. Finally, it is apparent that ALJ FFOLKES did not consider the ORDER OF
552DISMISSAL to be a recommended order. This is because ALJ FFOLKES did not give the
567standard "Notice of Rights to Submit Exceptions" which is given on recommended orders. The
581governing statutes and rules governing exceptions only apply to recommended orders. See,
593Sectionl20.57(1)(k), Fla. Stat. ("The agency shall allow each party 15 days in which to submit
609written exceptions to the recommended order."); Rule 28-106.217(1), F.A.C. ("Parties may file
623exceptions to findings of fact and conclusions of law contained in recommended orders with the
638agency responsible for rendering final agency action within 15 days of entry of the
652recommended order. .. ")That is why recommended orders issued by DOAH have a "Notice of
667Rights to Submit Exceptions" at the end, to give notice that the parties may submit exceptions.
683As ALJ FFOLKES did not give the standard "Notice of Rights to Submit Exceptions" on the
699ORDER OF DISMISSAL, it is apparent that ALJ FFOLKES did not consider the ORDER OF
714DISMISSAL to be a recommended order.
720FINDINGS OF THE ORDER OF DISMISSAL
72613. In the ORDER OF DISMISSAL, ALJ FFOLKES found that DOAH and the
739DISTRICT lacked subject matter jurisdiction. The apparent reason seems to be that DOAH and
753the DISTRICT were divested of jurisdiction due to the appeal:
763The lower tribunal calll1ot conduct fi1rther proceedings and enter orders that
774would affect or interfere with the subject matter of the appeal, and thus impinge
788on the appellate court's power and authority to decide the issues raised. See Bailey
802v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981 ).
813A separate lower tribunal is also without jurisdiction to proceed with
824subject matter that is pending on appeal. See Dep't of Rev. ex rei. Simmons v.
839Wardlaw, 25 So. 3d 80, 82 (Fla. 4th DCA 2009). The lower tribunal cannot act if
855it would interfere with the subject matter of a pending appeal. See Casavan v.
869Land O'Lakes Realty, Inc. of Leesburg, 526 So. 2d 215,216 (Fla. 5th DCA 1988).
884Neither the District nor DOAH may proceed because the appellate court's
895jurisdiction also includes the legal issue raised by Petitioners.
904(ORDER OF DISMISSAL at page 3) (Emphasis supplied); However, at the time ALJ FFOLKES
918issued the ORDER OF DISMISSAL, ALJ FFOLKES had been informed that the First District
932Court of Appeal was considering a stay of the appeal and relinquishing jurisdiction to DOAH to
948proceed. See, Fla. R. App. P. 9.600(b) (Stating that, "[T]he comt by order may permit the lower
965-3-
966tribunal to proceed with specifically stated matters during the pendency of the appeal.")
980Therefore it would seem as though the proper course would have been to hold the proceedings
996before DOAH in abeyance and allow the First District Court of Appeal to rule on the motion to
1014stay appeal and relinquish jurisdiction to DOAH to proceed with a hearing on the PETITION.
102914. However, ALJ FFOLKES also gave another reason for issuing the ORDER OF
1042DISMISSAL as follows:
1045Petitioners argue that they should be able to file a new petition challenging
1058the Permit based on Florida Administrative Code Rule 40B-1.1010(2)(a). The
1068new petition essentially challenges a legal ruling made by the judge in the Seven
1082Springs Water case regarding the licensing provision in section 120.60(1), Florida
1093Statutes. The District responded to the Order to Show Cause on Aprill2, 2021.
1106The District's response reflects its understanding that it has invoked the
1117jurisdiction of the First DCA to review final agency action. See§ 120.68(1), Fla.
1130Stat. (2020); Sowell v. State, Dep't of Rev., 136 So. 3d 1285 (Fla. 1st DCA 2014);
1146Hill v. Div. of Retirement, 687 So. 2d 1376 (Fla. lst DCA 1997).
1159Petitioners contend that the District's rule 40B-1.1010(2)(a) allows their
1168new petition. However, such an interpretation of the rule cannot be condoned
1180by the undersigned. Such an interpretation would mean that the
1190administrative adjudicatory process would never come to an end as new and
1202former petitioners attempt to get the same tribunals, DO AI-I and the District, to
1216rehear an unfavorable legal ruling. The appropriate remedy is to appeal the final
1229agency action.
1231(ORDER OF DISMISSAL at page 2) (Emphasis supplied)
123915. The operative provisions of Rule 40B-1.1010(2)(a), F.A.C. provide, "If final
1250agency action materially differs from a written notice of the DISTRICT's intended action,
1263persons who may be substantially affected shall have an additional 21 days, or for a notice of
1280consolidated intent an additional 14 days, from the date of receipt or publication of notice of
1296such action to request an administrative hearing." COUNCIL argues that as the DISTRICT's
1309intended action was to deny the PERMIT and the DISTRICT' final agency action was to grant
1325the Permit, the DISTRICT's final action "materially differs" from its intended action triggering
1338Rule 40B-l.!Ol0(2)(a)'s reopening of a 14 day window to file a petition.
135016. But ALJ FFOLKES ruled that COUNCIL's interpretation of Rule 40B-
1361l.1010(2)(a), F.A.C. "cannot be condoned" because it "would mean that the administrative
1373adjudicatory process would never come to an end as new and former petitioners attempt to get
1389the same tribunals, DOAH and the District, to rehear an unfavorable legal ruling." (ORDER OF
1404DISMISSAL at page 2) As the DISTRICT has now taken final agency action on the PERMIT,
1420and the rule only reopens a single 14 day window to file a petition after the DISTRICT takes
1438final action, it is unclear why ALJ FFOLKES believes that COUNCIL's interpretation "would
1451mean that the administrative adjudicatory process would never come to an end." ALJ FFOLKES
1465-4-
1466did not offer what other possible interpretation of Rule 408-1.101 0(2)(a), F.A.C. could be
"1480condoned" or find that Rule 40B-1.1010(2)(a), F.A.C. was invalid?
148917. Therefore it seems likely that ALJ FFOLKES's belief that COUNCIL's
1500interpretation of Rule 40B-1.1 01 0(2)( a), F .A. C. "cannot be condoned" is the reason ALJ
1517FFOLKES chose not to hold the DOAH proceedings in abeyance to wait for the First District
1533Court of Appeal's ruling on the motion to stay and for relinquishment of jurisdiction and entered
1549the ORDER OF DISMISSAL.
1553EXCEPTIONS
155418. While COUNCIL filed exceptions, the statutory provisions concerning
1563exceptions, including the requirement for the DISTRICT to rule on the exceptions, apply only to
1578recommended orders. See, Section 120.57(1 )(k), Fla. Stat. ("The agency shall allow each party
159315 days in which to submit written exceptions to the recommended order. The final order shall
1609include an explicit ruling on each exception ... ")
161819. As the ORDER OF DISMISSAL is not a recommended order, the requirements
1631concerning exceptions do not apply and this final order need not include an explicit ruling on
1647COUNCIL's exceptions.
1649DISTRICT MAY NOT MODIFY OR DEVIATE FROM ALJ FFOLKES RULING
165920. Section 120.57(1)(1), Fla. Stat., which provides statutory authority for an agency
1671to modify or reject an ALI's findings of facts and/or conclusions of law, concems only
"1686recommended orders" and is therefore inapplicable to the ORDER OF DISMISSAL.
169721. Further, the ORDER OF DISMISSAL was cast as an order determining DOAH's
1710'It is also worth noting that the operative language from the DISTRICT's Rule 40B-1.1010(2)(a),
1724F.A.C. is substantially the same as the operative language contained in(!) the St. Johns Water
1739Management District's rule 40C-1.1007(2)(a) ("If the District's Governing Board takes action
1751which substantially differs from a written notice of the District's decision describing intended
1764action, persons who may be substantially affected shall have an additional21 days, ... from the
1779date of receipt of notice of said action to request an administrative hearing ... "); (2) the
1796Southwest Florida Water Management District's rule 40D-1.1 01 0(2)( a) ("If final agency action
1811materially differs from a written notice of the District's intended action, persons who may be
1826substantially affected shall have an additional21 days, or for a notice of consolidated intent an
1841additional14 days, from the date of receipt or publication of notice of such action to request an
1858administrative hearing."); and (3) the South Florida Water Management District's rule
187040E-0.109(2) ("If the District takes action which substantially differs from the notice of intended
1885agency decision, the applicant or persons who may be substantially affected shall have an
1899additional point of entry pursuant to Rule 28-106.111, F.A.C., unless otherwise provided by
1912law.")
1914-5-
" 1915subject 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
1944ALJ FFOLKES on the is s ue ofDOAH 's s ubject matter juri s diction and compe l DOAH to
1964exercise jmisdiction which ALJ FFOLKES ha s ru l ed that DOAH lack s .
197922. Therefore , the DISTRICT i s compelled to di s mi ss the PETITION for th e rea s on s
2000s et out in the ORDER OF DISMISSAL.
2008ORDER
2009The PETITION i s di s missed , with prejudice , for t h e rea s ons set out in t h e ORDER OF
2033DISM I SSAL.
2036JUDICIAL REVIEW
2038Any party to this proceeding ha s th e righ t to s eek judicial review of t hi s Final Order
2060pursuant to Sectio n 120.68 , Florida Statutes , by filing a Notice of Appea l pur s uant to R ul es
20819 . 110 and 9 . 190 , F l orida Ru l e s of Appellate Procedure , with the clerk of t h e Suwannee River
2107Water Management District, 9225 CR 49 , Live Oak , Florida 32060 ; and by fi lin g a copy of the
2126No tic e of Appea l accompani e d by the applicable filing fees wit h th e app r optia t e District Comi
2151of Appeal.
2153The 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
2181with the cle r k of t h e Suwannee River Water Management Di s tri c t.
2199DONE and ORDERED on _ -'----'--- \\'C'\\ _____,_, o....,tj"'<--\\"--'\\ -----="" -="" '="" 202="">--\\"--'\\>
2211GOVERNING BOARD OF THE SUWANNEE
2216RNER WATER MANAGEMENT DISTRICT
2220C hair
2222Secretary I Treas rer
2226(The remainder of th i s page was intentionally l e ft bl ank.)
2240- 6 -
2243CERTIFICATE OF FILING
2246I HEREBY CERTIFY that the above order was fi l ed with the Suwannee River Water
2262Management District on /111/ Y // , 2021.
2269CERTIFICATE OF SERVICE
2272I HEREBY CERTIFY that a copy of the above order was provided to:
2285Doug l a s H. MacLaugh l in John Jopling
22953 1 9 Greenwood Drive 2631NW 4 1 st Street
2305West Palm Beach , FL 33405 Gainesville , FL 32606 - 6689
2315Emai l : dmaclaughlin (a{ aol.com John . joplin@dellgraham . com
2326Frederick T. Reeves Douglas P. Manson
23325709 Tidalwave Drive Craig Vam
2337New Port Richey , Florida 34652 Paria Shir z adi Heeter
2347Email : freeves@tbaylaw . com 109 N. Bmsh Street, Suite 300
2358j eckelkamp@tbaylaw.com Tampa , Florida 33602
2363Emai l : dman s on@mansonbolves.com
2369cvarn@ man so n bo I ves . co m
2379ph eeter@manson b o l ves. com
2386drodriguez@mansonbolves . com
2389by emai l on Jt;a // , 202 1.
2398epu ty L llCTogn p '"'( f
2406Suwannee River Water Management District
2411-7-
2412EXHIBIT ''A''
- Date
- Proceedings
- PDF:
- Date: 11/19/2021
- Proceedings: BY ORDER OF THE COURT: The court grants the motion to correct the record, the court strikes the record for failure to conform with Florida Rule of Appellate Procedure 9.200.
- PDF:
- Date: 07/20/2021
- Proceedings: BY ORDER OF THE COURT: The motion docketed July 19, 2021, for extension to time to file and serve the index and record is granted.
- PDF:
- Date: 07/12/2021
- Proceedings: BY ORDER OF THE COURT: The motion docketed July 12, 2021, for extension of time to serve the index to the record on appeal and transmit the record on appeal is granted and extended to July 19, 2021.
- PDF:
- Date: 07/01/2021
- Proceedings: BY ORDER OF THE COURT: The Court denies Appellee's motion to correct the record, as the court has not received the record on appeal.
- PDF:
- Date: 04/15/2021
- Proceedings: Seven Springs' Notice of Cancellation of Taking Deposition filed.
- PDF:
- Date: 04/14/2021
- Proceedings: Order Denying Seven Springs Water Company's Motion for Reassignment.
- PDF:
- Date: 04/13/2021
- Proceedings: Respondent Suwannee River Water Management District's Notice of Filing First District Court of Appeal Order to Show Cause filed.
- PDF:
- Date: 04/12/2021
- Proceedings: Respondent Seven Springs Water Company's Brief in Support of Dismissal Pursuant to Order to Show Cause filed.
- PDF:
- Date: 04/12/2021
- Proceedings: Respondent Suwannee River Water Management District's Response in Opposition to Seven Springs Motion for Reassignment filed.
Case Information
- Judge:
- FRANCINE M. FFOLKES
- Date Filed:
- 03/30/2021
- Date Assignment:
- 03/31/2021
- Last Docket Entry:
- 11/19/2021
- Location:
- Fort White, Florida
- District:
- Northern
- Agency:
- Other
Counsels
-
Paria Shirzadi Heeter, Esquire
Address of Record -
Douglas Harold MacLaughlin, Esquire
Address of Record -
Douglas P Manson, Esquire
Address of Record -
George T. Reeves, Esquire
Address of Record -
Fred Reeves, Esquire
Address of Record -
Frederick T. Reeves, Esquire
Address of Record -
Craig D. Varn, Esquire
Address of Record -
Frederick T Reeves, Esquire
Address of Record