97-002950GM David J. Russ vs. Tallahassee-Leon County And Department Of Community Affairs Status: Closed Recommended Order on Friday, August 22, 1997.

Summary: Failure to submit written comments destroys Petitioner's standing to challenge plan amendment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID J. RUSS, )

)

Petitioner, )

)

vs. )

)

TALLAHASSEE-LEON COUNTY and ) Case No. 97-2950GM

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

SCHOOL BOARD OF LEON COUNTY, )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER OF DISMISSAL

This cause came on to be heard, pursuant to notice, before

the Division of Administrative Hearings by designated

Administrative Law Judge Don W. Davis on August 20, 1997, in

Tallahassee, Florida, upon the joint motion of Respondents and

Intervenor, to dismiss further proceedings in this case.

The following appearances were entered:

For Petitioner

David J. Russ:

David J. Russ, Esquire

6823 Donerail Trail

Tallahassee, Florida 32308

For Respondent

Leon County:

James W. Linn , Esquire

Cari L. Roth, Esquire

Post Office Box 10788

Tallahassee, Florida 32302

and

Herbert W.A. Thiele, Esquire

Julie Lovelace, Esquire

Leon County Attorney’s Office

Leon County Courthouse

Room 443E

301 South Monroe Street

Tallahassee, Florida 32301

For Respondent

City of Tallahassee:

Linda Hurst, Esquire

City Hall

300 South Adams Street

Tallahassee, Florida 32301

For Respondent

Department of Community Affairs:

Sherry A. Spiers, Esquire

2555 Shumard Oak Boulevard

Department of Community Affairs

Tallahassee, Florida 32399-2100

For Intervenor

Leon County School Board:

Deborah Minnis, Esquire

Ausley and McMullen

Post Office Box 391

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Petitioner David Russ has standing to bring these

proceedings.

PRELIMINARY STATEMENT

By joint motion filed August 14, 1997, Respondents and

Intervenor seek dismissal of the Petition Challenging Plan

Amendments and Findings of Compliance.

The gravamen of the motion is that Petitioner Russ lacks

standing to bring this proceeding in that he is not an "affected

person" within the definition set forth in Section

163.3184(1)(a), Florida Statutes.

At the hearing upon the joint motion, Respondents and

Intervenor presented testimony of three witnesses and two

exhibits, in addition to affidavits attached to the joint motion.

Petitioner Russ testified in his own behalf. No transcript of

the hearing was provided. The parties waived the submission of

proposed findings of fact.

FINDINGS OF FACT

1. Petitioner Russ did not submit oral comments to the

local governments between the time of the transmittal hearing for

the plan amendment at issue in this case and the adoption of the

plan amendment.

2. Petitioner Russ testified that he faxed letters to

Tallahassee City Commissioner Ron Weaver and Leon County

Commissioner Gary Yordan during the required time period, but

this assertion is not corroborated by any other testimony or

exhibits. Although Petitioner Russ testified that he used paper-

printed original documents to effectuate the fax of the written

comments or letters, he did not present any documentary evidence

in corroboration. He presented no documents or other evidence of

attempts to follow-up or confirm receipt of his faxed comments by

the local governments.

3. A reasonable, diligent and thorough search by those

personnel charged with responsibility for maintaining

correspondence files of City Commissioner Ron Weaver and Leon

County Commissioner Gary Yordan, as well as the joint city/county

planning department, was conducted in order to locate the written

comments purportedly faxed to the local governments by Petitioner

Russ. No documents, relating to those written comments and

allegedly sent during the comment period for the plan amendment,

have been found.

4. Petitioner Russ admitted at the hearing that he possesses

copies of all correspondence and pleadings generated by himself

in this challenge to the amended plan with exception of those

initial written comments.

5. In the course of his testimony, Petitioner Russ

speculated with regard to his inability to corroborate his

assertion that he did fax written comments. That speculation

included his supposition that computerized copies of the

documents in his computer may have been lost through possible

destruction of the files during a computer repair or renovation,

or that he might have saved the documents on a floppy disk which

has subsequently been misplaced.

6. The overwhelming evidence clearly and convincingly

establishes that the documents are not, and have never been, in

the possession of the local governments in this case. Such

evidence results in the finding that contrary testimony, absent

some extrinsic corroboration that the documents were submitted,

cannot be credited.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

of the parties and subject matter of this proceeding. Section

120.57 and Chapter 163, Florida Statutes.

8. Communications in the era of cyberspace and the

information highway include electronic transmission of documents.

Further, electronically transmitted documents share a common

definition with conventional written documents under the Florida

evidence code. Section 90.951, Florida Statutes. It would

therefore appear that cases involving disputes over receipt of

documents sent through electronic technology should be resolved

in the same manner as conventionally mailed documents; through a

fact finding inquiry or evidentiary hearing such as the instant

proceeding.

9. The mailing of an item creates a presumption that the

item was indeed received, but the presumption is a rebuttable

one. Additionally, mere denial of receipt is inadequate to

overcome the presumption. Scutieri v. Miller , 584 So. 2d 15,16

(Fla. 3rd DCA 1991). Consequently, Respondents and Intervenor

were given, and utilized, their opportunity to offer proof in

support of the local governments’ denials of receipt of

Petitioner Russ’s written comments. That proof creditably and

convincingly established that the local governments in this

matter did not receive the purported correspondence of Petitioner

Russ. That proof was not effectively refuted because Petitioner

Russ was unable to corroborate his assertion that he had

submitted the required written comments.

10. In order for Petitioner Russ to maintain these

proceedings, he must meet "standing" requirements of Section

163.3184(1)(a), Florida Statutes, which requires, in pertinent

part, that an "affected person" shall:

have submitted oral or written comments,

recommendations, or objections to the local

government during the period of time

beginning with the transmittal hearing for

the plan or plan amendment and ending with

the adoption of the plan or plan amendment.

11. Absent creditable proof to establish his submittal of

the required written comments or their receipt by the local

governments, Petitioner Russ has not met the standing requirement

of submitting written comments within the specified time frame.

He does not possess standing to maintain this challenge to the

plan amendment which is the subject of this proceeding.

RECOMMENDATION

It is recommended that a final order be entered in this

case, Division of Administrative Hearings Case Number 97-2750GM,

finding that Petitioner Russ is without standing to maintain

these proceedings and dismissing his Petition Challenging Plan

Amendments And Findings of Compliance.

DONE AND ENTERED this 22nd day of August, 1997, at

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278- 9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of August, 1997.

COPIES FURNISHED:

James V. Cook, Esquire

217 South Adams Street

Tallahassee, Florida 32301

James W. Linn, Esquire

Cari L. Roth, Esquire

Post Office Box 10788

Tallahassee, Florida 32302

Deborah Minnis, Esquire

C. Graham Carothers, Esquire

Ausley and McMullen

Post Office Box 391

Tallahassee, Florida 32302

Julie E. Lovelace, Esquire

James R. English, Esquire

City Hall

300 South Adams Street

Tallahassee, Florida 32301

David J. Russ, Esquire

6823 Donetail Trail

Tallahassee, Florida 32308

Sherry A. Spiers, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

James F. Murley, Secretary

Department of Community Affairs

Suite 100

2555 Shummard Oak Boulevard

Tallahassee, Florida 32399-2100

Stephanie Gehres Kruer, Esquire

Department of Community Affairs

Suite 325-A

2555 Shummard Oak Boulevard

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.