DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order No.: DEO-14-142
DANIEL J. DICIOLLA, AUDIE G.
CHILDERS, LYNN ELROD CHILDERS,
ROBERT MCCASKILL, and SARAH MCCASKILL
Petitioners, Case No. DEO-14-135
Final Order No. DEO-14-142
v.
BAYHEAD LANDINGS PROPERTY OWNERS
ASSOCIATION, INC.
Respondent,
____________________________________________/
FINAL ORDER
DISMISSING PETITION WITHOUT PREJUDICE
This matter came before the Florida Department of Economic Opportunity (“Department”) following the receipt of a Petition for Administrative Proceedings (“Petition”) by Daniel J. Diciolla, Audie G. Childers, Lynn Elrod Childers, Robert McCaskill, and Sarah McCaskill (collectively, “Petitioners”), dated September 15, 2014.
Statement of Facts
1. On or about June 27, 2014, the Department received an application for revitalization of covenants under Section 720.403, Florida Statutes, from Bayhead Landings Property Owners Association, Inc. (“Respondent.”)
2. On or about August 21, 2014, the Department, finding that all conditions under Chapter 720, Part III, Florida Statutes, had been met, approved the revitalization of Respondent’s covenants and issued Final Order No. DEO-14-116 (“Final Order.”)
3. On or about September 16, 2014, the Department received the Petition which requested a hearing under Section 120.57, Florida Statutes, regarding the Final Order.
4. The Petition states how Petitioners received notice, but fails to state when the Petitioner received notice of the Final Order.
5. The Petition fails to identify the email address of counsel for Petitioner.
6. The Petition fails to state how the Petitioners’ substantial interests are affected by the Final Order.
7. The Petition objects to the approval of the revitalization, but does not specifically allege the relief sought by the Petitioners.
Findings of Law
8. Section 120.569(2)(c), Florida Statutes, states that “a petition shall be dismissed if it is not in substantial compliance with these requirements [Section 120.54(5)(b)] or it has been untimely filed. Dismissal of a petition shall, at least once, be without prejudice to petitioner’s filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured.”
9. Section 120.54(5)(b)4.b., Florida Statutes, and the implementing Rules 28-106.201 and 28-106.301, Florida Administrative Code, require that a petitioner state when it received notice of the agency action.
10. Petitioners do not state in their Petition the date they received the Final Order, but only states how Petitioners received notice of the Final Order.
11. Section 120.54(5)(b)4.a., Florida Statutes and the implementing Rules 28-106.201 and 28-106.301, Florida Administrative Code, require that the email address of either the petitioner, or the petitioner’s counsel be identified in the pleading for subsequent transmittal of documents.
12. Petitioners do not identify the email address of Petitioners’ counsel.
13. Section 120.54(5)(b)4.c., Florida Statutes, and the implementing Rules 28-106.201 and 28-106.301, Florida Administrative Code, require that the petitioner provide “an explanation of how the petitioner’s substantial interests are or will be affected by the action or proposed actions [of the agency].”
14. Petitioners do not explain how their substantial interests have been affected by the Final Order of the Department.
15. Section 120.54(5)(b)4.g., Florida Statutes, and the implementing Rules 28-106.201 and 28-106.301, Florida Administrative Code, require that petitioner make “a statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the proposed action.”
16. Petitioners state that they object to the issuance of the Final Order approving the revitalization of Respondent’s covenants, but do not state the action Petitioners wish the agency to take in regards to the Final Order.
Order
Based on the foregoing, it is hereby ORDERED:
1. The Department dismisses the Petition without prejudice for the reasons stated in paragraphs 4 through 16 above.
2. Petitioner has ten days to file an amended petition with the Department that is compliant with Section 120.54(5)(b), Florida Statutes, and Rules 28-106.201 and 28-106.301, Florida Administrative Code.
DONE AND ORDERED this 26th day of September, 2014, in Tallahassee, Florida.
_______________/s/_________________
William B. Killingsworth, Director
Division of Community Development
Department of Economic Opportunity
NOTICE OF RIGHTS
ANY INTERESTED PARTIES ARE HEREBY NOTIFIED OF THEIR RIGHT TO SEEK JUDICIAL REVIEW OF this FINAL AGENCY ACTION IN ACCORDANCE WITH SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) and 9.110.
to initiate an appeal of this final agency action, a notice of appeal must be filed with the department’s agency clerk, 107 east Madison street, Caldwell building, msc 110, Tallahassee florida 32399-4128, within 30 calendar days of the day this final agency action is filed with the agency clerk. The notice of appeal must be substantially in the form prescribed by the florida rule of appellate procedure 9.900(a). a copy of the notice of appeal must also be filed with the district court of appeal and must be accompanied by the filing fee specified in section 35.22(3) florida statutes.
you waive your right to judicial review if the notice of appeal is not timely filed with both the department’s agency clerk and the appropriate district court of appeal.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the Agency Clerk, Katie Zimmer, Agency Clerk, Department of Economic Opportunity, 107 East Madison Street, MSC 110, Tallahassee, FL 32399-4128, telephone: (850)245-7150, and that true and correct copies have been furnished to the persons listed below by the method indicated this 29th day of September, 2014.
_________/s/_________________
Katie Zimmer, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399-4128
Telephone: (850)245-7150
By Certified US Mail
Barbara Billiot Stage, Esq.
Law Office of Stage & Associates, P.A.
7635 Ashley Park Court
Suite 503-T
Orlando, Florida 32835
Attorney for the Petitioners
Gary M. Schaff, Esq.
Becker & Poliakoff, P.A.
1511 N. Westshore Blvd.
Suite 100
Tampa, FL 33607
Attorney for Respondent
Lorretta Kallay Prettyman, Esq.
Becker & Poliakoff, P.A.
1 East Broward Blvd.
Suite 1800
Fort Lauderdale, FL 33301
