DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order No. DEO-16-212
In the Matter of
TOWN OF JENNINGS,DEO Case No. 16-114
Final Order No. DEO-16-212
Petitioner.
/
FINAL ORDER DISMISSING AMENDED PETITION FOR ADMINISTRATIVE HEARING
This matter is before the Department of Economic Opportunity (“Department”) based on an amended petition submitted by the Town of Jennings (“Jennings”). The petition seeks a formal administrative hearing involving a disputed issue of fact surrounding Jennings’ application under the Florida Small Cities Community Development Block Grant (CDBG) Program for the federal fiscal year 2015 Small Cities CDBG cycle for housing rehabilitation. The Department finds and concludes as follows:
Findings of Fact
On March 12, 2016, the Department commenced an application cycle accepting applications from eligible governments to participate in the federal fiscal year 2015 Small Cities CDBG Program for housing rehabilitation. The application cycle closed on April 25, 2016. Jennings timely submitted an application on April 25, 2016. Jennings was seeking $600,000.00 to improve its water and sewer systems.
1. As part of the evaluation process, the Department reviewed Jennings’ public hearing advertisements and determined that the second public hearing advertisement did not meet the requirements of Rule 73C-23, Florida Administrative Code.
2. Namely, Rule 73C-23.0041(5)(c)2.a., Florida Administrative Code, states:
After an Application for Funding has been drafted, citizens shall be given the opportunity to express their views regarding the proposed application. The opportunity shall include the following:
a. A notice for a second public hearing shall be published in a local newspaper at least five days prior to and no more than 20 days before the date of the second public hearing. The notice shall include a summary of the draft application and the date, time and address of a public hearing on the draft application. The summary shall include the following:
(I) A description of the activities that will be undertaken with CDBG funding;
(II) A budget that lists the specific CDBG dollar amounts that will be allocated for each activity;
(III) The national objective that will be met by each activity, except administration and engineering; and,
(IV) For Neighborhood Revitalization, Commercial Revitalization and Economic Development Projects, the specific locations of the proposed activities, including street names or road numbers (e.g., County Road 50).
The notice shall also state where and when, other than at the public hearing, a copy of the draft application will be available for citizen review and how citizens can submit written comments on the draft application. Failure to include all of the required information in the public hearing notice shall result in the application being rejected as provided in Section 290.0475(6), Florida Statutes.
(emphasis added.)
3. As Rule 73C-23, Florida Administrative Code, indicates, section 290.0475(6), Florida Statutes, indeed states that an application is ineligible for funding if the local government is not in compliance with the Department’s rule regarding citizen participation.
4. Jennings’ second public hearing advertisement failed to include “where and when, other than at the public hearing, a copy of the draft application will be available for citizen review and how citizens can submit written comments on the draft application.”
5. On June 3, 2016, the Department notified Jennings that since it did not comply with the citizen participation requirements of Rule 73C-23, Florida Administrative Code, its application could not be considered and was rejected.
6. On June 24, 2016, Jennings filed a two-part petition (“Original Petition”). The first part was a petition for a formal administrative hearing involving a disputed issue of fact, pursuant to section 120.569, Florida Statutes. The second part was a petition for waiver from the citizen participation requirements included in Rule 73C-23, Florida Administrative Code, pursuant to section 120.542, Florida Statutes.
7. On September 22, 2016, the Department issued Final Order No. DEO-16-176 (“Final Order”). In its Final Order, the Department dismissed the petition for administrative hearing and denied the petition for waiver. Jennings’ petition for administrative hearing did not state precisely the action Jennings wanted the Department to take with respect to the Department’s rejection of Jennings’ application. Instead, it merely requested that the Department’s decision be referred to the Division of Administrative Hearings (DOAH) for review. Furthermore, Jennings did not timely submit its petition for waiver from Rule 73C-23, Florida Administrative Code. It submitted its petition for waiver nearly two months after it had already failed to comply with the requirements of Rule 73C-23, Florida Administrative Code.
8. On October 17, 2016, Jennings filed a Response to Final Order and Petition for Administrative Hearing Involving Disputed Issues of Facts (“Response”). Included with the Response, Jennings also incorporated an Amended Petition for Administrative Hearing Involving Disputed Issues of Fact and Waiver under Section 120.542, F.S. (“Amended Petition”).
9. In its Response, Jennings argued that “[t]he proper vehicle for [the Department] to address any alleged pleading deficiency is through an Order to Show Cause to allow any alleged deficiency to be addressed.” To bolster this claim, Jennings cited to Brookwood Extended Care Center of Homestead, LLP v. Agency for Healthcare Administration, 870 So. 2d 834 (Fla. 3d DCA 2003.)
10. Jennings’ Original Petition and Amended Petition are identical.
11. As it had previously argued, Jennings claimed that its second public hearing notice fully complied with the citizen participation requirements of Rule 73C-23, Florida Administrative Code.
12. The Department continues to not dispute the contents of Jennings’ second public hearing notice.
13. As in the Original Petition, in its Amended Petition, Jennings cites to the language used in its second notice of public hearing, which stated:
A public hearing to provide citizens an opportunity to comment on the application will be held at Town Hall, 1199 Hamilton Avenue, Jennings, FL on Tuesday April 19th, 2016 at 7:00 p.m. A draft copy of the application will be available for review at that time. A final copy of the application will be made available at Town Hall, Monday through Thursday, between the hours of 8:00 a.m. – 5:00 p.m., no more than five days before the application due date. The application will be submitted to DEO on or before the application due date. To obtain additional information concerning the application and the public hearing or to submit written comments on the application, contact George Glover, Town Manager, at (386)938-4131 [or by] email at jenningsmanager@yahoo.com or contact by US postal service at P.O. Box 209, Jennings, FL 32053.
14. In its Amended Petition, as it did before, Jennings again claims that the Department’s determination that the second public hearing notice did not comply with the citizen participation requirements included in Rule 73C-23, Florida Administrative Code, is factually disputed. But again, Jennings does not specifically plead what the factual dispute actually is. Jennings wrote “[s]aid information fully complies” with the citizen participation requirements included in Rule 73C-23, Florida Administrative Code and did not elaborate any further. Again, both Jennings and the Department agree on what language the second public hearing notice contains. The second public hearing notice did not include “where and when, other than at the public hearing, a copy of the draft application will be available for citizen review and how citizens can submit written comments on the draft application.” Jennings did not plead any other factual disputes in its Amended Petition.
15. In its Amended Petition, as it did before, Jennings requests that “[its Amended Petition] be referred to the Division of Administrative Hearing so that a Formal Hearing can be conducted to Recommend whether [Jennings’] application at issue herein should be Granted.” Jennings does not plead with specificity what action it wants the Department to take with respect to the Department’s initial rejection of its application from the application cycle.
Conclusions of Law
16. Jennings filed its Amended Petition pursuant to section 120.569, Florida Statutes.
17. With regards to the Amended Petition for administrative hearing involving a disputed issue of fact, section 120.569(2)(c), Florida Statutes, states, in relevant part, that “[u]nless otherwise prohibited by law, a petition for hearing shall include those items required by the uniform rules adopted pursuant to [section 120.54(5)(b)4., Florida Statutes].”
18. One of those uniform rules is Rule 28-106.201(2), Florida Administrative Code, which states:
All petitions filed under these rules shall contain:
(a) The name and address of each agency affected and each agency’s file or identification number, if known;
(b) The name, address, any e-mail address, any facsimile number, and telephone number of the petitioner, if the petitioner is not represented by an attorney or a qualified representative; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests will be affected by the agency’s determination;
(c) A statement of when and how the petitioner received notice of the agency decision;
(d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate;
(e) A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action;
(f) A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and
(g) A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the agency’s proposed action.
19. Section 120.569(2)(c), Florida Statutes, states, in relevant part, that “[a] petition shall be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed.”
20. In the portion of the Amended Petition which addressed its request for a formal administrative hearing, Jennings fails to plead any statement of disputed issues of material fact. Instead, it merely quotes from its second public hearing notice and declared there was a factual dispute. Again, neither Jennings nor the Department dispute the contents of the second public hearing notice. Jennings fails to plead any disputed issues of material fact. As such, Jennings fails to comply with Rule 28-106.201(2)(d), Florida Administrative Code.
21. Furthermore, in its Amended Petition, Jennings fails to plead a statement of relief stating precisely the action petitioner wishes the Department to take with respect to the Department’s decision to reject its application. Instead, Jennings only requests that “[its Amended Petition] be referred to the Division of Administrative Hearing so that a Formal Hearing can be conducted to Recommend [sic] whether [Jennings’] application at issue herein should be Granted.” Jennings does not state precisely what action it wants the Department to take with respect to the Department’s rejection of Jennings’ application. As such, Jennings fails to comply Rule 28-106.201(2)(g), Florida Administrative Code.
22. Jennings’ argument in its Response that the Department’s Final Order denying its Original Petition was improper and that an Order to Show Cause should have been issued instead is based upon a misreading of Brookwood Extended Care Center of Homestead, LLP v. Agency for Healthcare Administration, 870 So. 2d 834 (Fla. 3d DCA 2003.)
23. The Court did not hold that agencies must issue order to show causes to allow petitioners an opportunity to correct any deficiencies in the pleadings. Instead, the Court held that section 120.569, Florida Statutes, affords the petitioner at least one opportunity to amend an otherwise deficient petition. Id. at 841. As the Court pointed out in Brookwood, section 120.569, Florida Statutes, states that the “[d]ismissal 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.” Id.
24. The Court held that even though an agency should determine if the petitioner’s efforts substantially comply with the statutory requirements for a petition, the agency must still deny insufficient petitions. Id. at 841.
25. Even viewing Jennings’ Original Petition for substantial compliance, Jennings’ Original Petition was insufficient. Jennings failed to plead any disputed issues of material fact. Jennings failed to plead a statement of relief stating precisely the action petitioner wishes the Department to take with respect to the Department’s decision to reject its application. Jennings did not explain how a waiver from the citizen participation requirements included in Rule 73C-23 would serve the purposes of section 290.046(4), Florida Statutes. Jennings failed to demonstrate what, if any, other means it had taken to comply with the underlying statute’s requirements. Therefore, the Department correctly issued its Final Order and dismissed the Original Petition for formal administrative hearing involving a disputed issue of fact without prejudice and denied the untimely motion for waiver.
26. In its Amended Petition, Jennings fails to plead any statement of disputed issues of material fact. In its Amended Petition, Jennings fails to plead a statement of relief stating precisely the action petitioner wishes the Department to take with respect to the Department’s decision to reject its application. Likewise, since the Amended Petition fails in the same way as did the Original Petition, the Amended Petition does not substantially comply with the requirements for such a petition and is insufficient.
Conclusion
Based on the foregoing argument and citation to authority, the Department hereby dismisses Jennings’ Amended Petition for formal administrative hearing involving a disputed issue of fact without prejudice.
DONE AND ORDERED in Tallahassee, Florida, this 1st day of November 2016.
/s/
Taylor Teepell, Director
Division of Community Development
Department of Economic Opportunity
Notice of administrative rights
Any person whose substantial interests are affected by this order has the opportunity for an administrative proceeding pursuant to section 120.569, Florida statutes.
For the required contents of a petition challenging agency action, refer to Rules 28-106.104(2), 28-106.201(2), and 28-106.301, Florida Administrative Code.
Depending on whether or not material facts are disputed in the petition, a hearing will be conducted pursuant to either sections 120.569 and 120.57(1), Florida statutes, or Sections 120.569 and 120.57(2), Florida statutes.
Any petition must be filed with the agency clerk of the department of economic opportunity within 21 calendar days of receipt of this notice. A petition is filed when it is received by:
Agency Clerk
Department of Economic Opportunity
Office of the general Counsel
107 East Madison St., MSC 110
Tallahassee, Florida 32399-4128
Fax: (850)921-3230
agency.clerk@deo.myflorida.com
You waive the right to any administrative proceeding if you do not file a petition with the agency clerk within 21 days of receipt of this final order.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order Dismissing Amended Petition for Administrative Hearing has been filed with the Agency Clerk of the Department of Economic Opportunity, 107 East Madison Street, MSC 110, Tallahassee, Florida 32399-4128, and that copies have been furnished to the parties listed and in the manner identified below on this 1st day of November, 2016.
/s/
Stephanie Chatham, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, Florida 32399-4128
Telephone: (850)245-7150
Facsimile: (850)921-3230
By Certified US Mail and Email Delivery
Brant Hargrove, Esq.
1291 Cedar Center Drive
Tallahassee, FL, 32301
hargrovelaw@embarqmail.com
By Email Delivery
Hillary Ryan, Esq.
Bureau Chief
Division of Community Development
Department of Economic Opportunity
Tallahassee, Florida 32399
Hillary.Ryan@deo.myflorida.com
