89-003187 Mac A. Greco, Jr.; Josephine Greco; Et Al. vs. West Coast Regional Water Supply Authority And Southwest Florida Water Management District Status: Closed Recommended Order on Thursday, April 19, 1990.

Summary: Petition to intervene did not reach DOAH before parties settled main case. Too late. Filing with agency ineffective once DOAH has case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAC A. GRECO, GILMORE A. DOMINGUEZ , )

FIRST FLORIDA BANK, N.A., et al. , )

)

Petitioners , )

vs. ) CASE NOS. 89-3187

) 89-3188

WEST COAST REGIONAL WATER SUPPLY ) 89-3189

AUTHORITY and SOUTHWEST FLORIDA )

WATER MANAGEMENT DISTRICT , )

)

Respondents , )

and )

)

CHILPUB, INC., and )

WIREGRASS RANCH, INC. , )

)

Intervenors . )

____________________________________)

RECOMMENDED ORDER OF DISMISSAL

This matter came to be considered by telephone conference call on April 17,

1990, by Donald D. Conn, Hearing Officer, Division of Administrative Hearings,

upon a Joint Motion to Relinquish Jurisdiction filed on behalf of Petitioners

and Respondents on April 4, 1990, which is opposed by Intervenors. The parties

to this proceeding are represented as follows:

APPEARANCES

For Petitioners : David L. Smith, Esquire

Jeffrey A. Aman, Esquire

712 South Oregon Street

Tampa, FL 33606

For Respondents : Bram Canter, Esquire

306 North Monroe Street

Tallahassee, FL 32302

Southwest FL Water Management District

Edward P. de la Parte, Jr., Esquire

Barbara B. Levin, Esquire

705 East Kennedy Boulevard

Tampa, FL 33602

West Coast Regional Water Supply Authority

For Intervenors : James S. Moody, Jr., Esquire

P. O. Box TT

Plant City, FL 34289-9040

Wiregrass Ranch, Inc.

Enola T. Brown, Esquire

P. O. Box 3350

Tampa, FL 33601-3350

Chilpub , Inc.

STATEMENT OF THE ISSUE

The issue at this stage of the proceeding is whether jurisdiction should be

relinquished to the Southwest Florida Water Management District based upon the

withdrawal of Petitions filed herein on behalf of the Petitioners, and the

filing of a stipulation and settlement agreement executed on behalf of the

Petitioners and Respondents.

FINDINGS OF FACT

1. By Notices of Referral dated June 7, 1989, and filed June 1 6, 1989,

the Southwest Florida Water Management District (District) transmitted to the

Division of Administrative Hearings (DOAH) certain Petitions filed on behalf of

Petitioners which opposed the issuance of a consumptive use permit numbered

208426 by the District to the West Coast Regional Water Supply Authority

(Authority). These Petitions were assigned Case Numbers 89-3187 through 89-3189

by DOAH, and were consolidated for all further proceedings.

2. On August 18, 1989, Chilpub, Inc. ( Chilpub), filed a Petition to

Intervene , which was granted by Order entered on September 6, 1989.

3. On October 20, 1989, Wiregrass Ranch, Inc. ( Wiregrass), filed a

Petition to Intervene , which was granted by Order entered on October 31, 1989.

4. The Petitions filed on behalf of Chilpub and Wiregrass were filed at

DOAH, and specifically sought leave to intervene in Cases Numbered 89-3187

through 89-3189 in order to oppose the issuance of permit number 208426 to the

Authority. Following the granting of these Petitions, Chilpub and Wiregrass have

participated in this proceeding as Intervenors

5. On or about November 8, 1989, the Authority provided Wiregrass with a

copy of the Notice of Proposed Agency Action which is the subject of this

proceeding, pursuant to Rule 40D-2.101, Florida Administrative Code. However,

subsequent to receiving this Notice of Proposed Agency Action, Wiregrass failed

to file with the District any Petition in its own right seeking to initiate a

proceeding under Section 120.57(1), Florida Statutes, to challenge the issuance

of permit number 208426 to the Authority.

6. Notices of Withdrawal of Petitions for Formal Hearing were filed on

behalf of the Petitioners in Cases Numbered 89-3187 through 89-3189 on April 4,

1990, and on that same date, the Petitioners and Respondents filed their Joint

Motion to Relinquish Jurisdiction. A copy of the Stipulation and Settlement

Agreement executed by the Petitioners and Respondents was filed on April 9,

1990.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the

parties, and the subject matter in this cause. Section 120.57(1), Florida

Statutes.

8. It is well settled that when Petitions which initiated an

administrative action are withdrawn by the Petitioners, and when the main

parties to such an action have executed a settlement agreement which resolves

all factual matters in dispute between Petitioners and Respondent, an Intervenor

may not maintain the action in the absence of the original parties. Humana of

Florida, Inc. v. DHRS, 500 So.2d 186 (Fla. 1st DCA 1986), rev.den. 506 So.2d

1041 (Fla. 1987 ; Rudloe v. Dept. of Environmental Regulation, 517 So.2d 731

(Fla. 1st DCA 1987). An Intervenor's rights in an action are subordinate to the

rights of the main parties, and when the matters which lead the original parties

to commence an administrative action have been settled, an Intervenor cannot

perpetuate such action unless he has availed himself of his own point of entry

and initiated an action in his own right.

9. In this case, Wiregrass argues that since it was allowed to Intervene

in this matter on October 31, 1989, it became a full party, and it would have

been a useless and unnecessary act for it to file, in its own right, a Petition

for Administrative Hearing under Section 120.57(1) following receipt of a copy

of the Notice of Proposed Agency Action which the Authority sent to it on or

about November 8, 1989. Admittedly, it ignored its own point of entry which

arose under Rule 40D- 2.101, Florida Administrative Code, following receipt of

this actual Notice. However, Wiregrass, argues that the Petition to Intervene

which it did file meets all the substantive requirements for an initiating

Petition under Section 120.57(1), and that "technical" failures in procedure

should not be used to thwart its request for a hearing.

10. In support of its position, Wiregrass relies upon the case of Yachting

Arcade, Inc. v. Riverwalk Condominium Assoc., Inc., 500 So.2d 202 (Fla. 1st DCA

1986). However, the facts of this case are distinguishable from those under

review in Yachting Arcade. In this present case, Intervenors never filed a

Petition seeking to initiate an administrative action with the District, but

simply filed a Petition to Intervene with DOAH in Cases Numbered 89-3187 through

898-3189. In Yachting Arcade, the Petitioners did file their Petition with the

Department of Environmental Regulation, which thereafter transmitted the

Petition to DOAH for hearing.

11. Generally under Section 120.57(1), Florida Statutes, agencies may

choose to have administrative hearings conducted by their agency head, a member

thereof, or by a Hearing Officer assigned by DOAH. It is the agency, in this

case the District, which must initially decide whether to hear a case itself, or

utilize a DOAH Hearing Officer. D0AH cannot assume jurisdiction over a Section

120.57(1) matter unless it is transmitted to DOAH by the affected agency.

12. Intervenors in this case never filed their Petition with the District,

but rather filed it with DOAH, as was proper for a Petition to Intervene.

However, since the main parties in the action into which Wiregrass intervened

have subsequently entered into a settlement and withdrawn their Section

120.57(1) Petitions, Wiregrass now seeks to have its previous Petition, which

was never filed with the District, construed as a Petition for Administrative

Hearing in its own right. To agree with Wiregrass would be to ignore the clear

meaning and effect of Section 120.57(1) which confers jurisdiction on DOAH only

when an affected agency chooses to have a Hearing Officer conduct the

proceedings, and transmits the matter to DOAH for hearing.

13. The Joint Motion to Relinquish Jurisdiction should be granted,

notwithstanding the opposition of Intervenors , not only because the case law is

clear that an Intervenor may not maintain an action when the main parties to the

action have entered into settlement and withdrawn the initiating Petitions, but

also because to construe Wiregrass ' Petition to Intervene as a Petition for

Administrative Hearing under Section 120.57(1), Florida Statutes, would be to

deny the District its right to an initial review of such Petition in order to

decide whether to conduct the proceeding itself, or to confer jurisdiction on

DOAH by transmitting the Petition to DOAH for hearing.

RECOMMENDATION

Based upon the foregoing, it is recommended that the District enter a Final

Order dismissing the Petitions filed herein, and issuing permit number 208426 to

the Authority.

DONE AND ENTERED this __19__ day of April, 1990 in Tallahassee, Florida.

____________________________

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

120 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the

Division of Administrative Hearings

this __19__ day of April, 1990.

COPIES FURNISHED:

David L. Smith, Esquire

Jeffrey A. Aman, Esquire

712 South Oregon Avenue

Tampa, FL 33606

Edward P. de la Parte, Jr., Esquire

Barbara B. Levin, Esquire

705 East Kennedy Blvd.

Tampa, FL 33602

Bram Canter, Esquire

306 North Monroe Street

Tallahassee, FL 32302

Enola T. Brown, Esquire

P. O. Box 3350

Tampa, FL 33601-3350

James S. Moody, Jr., Esquire

P. O. Box TT

Plant City, FL 33564-9040

Peter G. Hubbell

Executive Director

SWFWMD

2379 Broad Street

Brooksville, FL 34609-6899