DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order No.: DEO-15-030
LAWRENCE JAY STEIN, Petitioner,
V.Case No. DEO-15-030
Final Order No. DEO-15-030
SPRINGLAKE-NORTHWOOD HOMEOWNERS ASSOCIATION, INC., Respondent.
____________________________________/
FINAL ORDER
DISMISSING PETITION WITHOUT PREJUDICE
This matter came before the Florida Department of Economic Opportunity (“Department”) following receipt of a Petition for Administrative Proceedings (“Petition”) by Lawrence Jay Stein (“Petitioner”) dated February 2, 2015.
Statement of Facts
1.On or about January 21, 2015, the Department received an application for revitalization of covenants under section 720.403, Florida Statutes, from Springlake-Northwood Homeowners Association, Inc. (“Respondent”).
2.On or about February 2, 2015, approximately thirteen (13) days from the time the Department received Respondent’s application for the revitalization of covenants, the Petitioner filed the Petition.
3.The Petition request a public hearing prior to any decision being reached on the Respondent’s revitalization of covenants (emphasis added).
4.The Department is currently in the review stage of Respondent’s application for revitalization of covenants.
5.The Department has not entered a rule or order, or otherwise made a determination of substantial interests (emphasis added).
Findings of Law
6.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.”
7.Rule 28-106.201, Florida Administrative Code, provides in pertinent part that “[u]nless otherwise provided by statute . . . initiation of proceedings shall be made by written petition to the agency responsible for rendering final agency action.”
8.The term “agency action” is defined in section 120.52(2), Florida Statutes as “the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order.” This subsection provides further that agency action also includes any denial of a request made under section 120.54(7), Florida Statutes, the statute authorizing a person regulated by an agency or having a substantial interest in an agency rule, to file a petition to initiate rulemaking.
9.Section 720.406, Florida Statutes requires the Department to determine whether the proposed revived declaration of covenants and other governing documents comply with the requirements of chapter 720, Part III, Florida Statutes no later than 60 days after receiving the submission (emphasis added).
10.Without agency action determining substantial interests, there is no right available to an objecting party to initiate an administrative proceeding pursuant to section 120.569, Florida Statues.
11.Accordingly, the Petition is premature and must be dismissed. No agency action by the Department has taken place. See Friends of the Everglades. Inc. v. South Florida Regional Planning Council, 456 So.2d 491 (Fla. 3d DCA 1984).
Order
Based on the foregoing, it is hereby ORDERED:
1.The Department dismisses the Petition without prejudice for the reasons stated in paragraphs 3 to 11.
2.Petitioner may file an amended petition with the Department that is compliant with Section 120.569, Florida Statutes, and Rules 28-106.201 and 28-106.301, Florida Administrative Code and after such time the Department issues a Final Order determining whether Respondent’s application for revitalization of covenants complies with the requirements of chapter 720, Part III, Florida Statutes.
DONE AND ORDERED this 12th day of February, 2015, 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 this12th day of February, 2015.
___________/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
Lawrence Jay Stein, Esq.
9620 N.W. 82nd Street
Tamarac, Florida 33321-1317
Attorney for the Petitioner
Michael Bender, Esq.
Kerstin Henze, Esq.
Kaye Bender Rembaum, P.L.
1200 Park Central Blvd. South
Pompano Beach, FL 33064-2215
Attorney for Respondent
James Parker, Esq.
Boyd Law Group
Boyd Richards Parker & Colonnelli
100 SE 2nd Street, Suite 2600
Miami, FL 33131-2118
