DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order No.: DEO-15-036
JAMES R. SLATTON, and
STICKS IN THE SAND, LLC,
Petitioners,DEO Case No. 15-032
v.Final Order No. DEO-15-036
STATE OF FLORIDA, DEPARTMENT
OF ECONOMIC OPPORTUNITY, and
SUNCHASE TOWNHOMES 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 James R. Slatton and Sticks in the Sand, LLC, (collectively, “Petitioners”), dated February 20, 2015.
STATEMENT OF FACTS
1. On or about October 9, 2014, the Department received an application for revitalization of covenants under section 720.403, Florida Statutes, from Sunchase Townhomes Owners Association, Inc. (“Respondent”).
2. On or about November 25, 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-14-164 (“Final Order”).
3. The Final Order was filed with the Clerk for the Department, and furnished to Respondent on November 26, 2014.
4. On December 3, 2014, the Department filed its notice of the Final Order in the Florida Administrative Registrar.
5. On or about February 20, 2015, the Department received the Petition which requested a hearing under section 120.57, Florida Statutes, regarding the Final Order.
6. The Petitioner states that it received notice from Respondent’s attorney on February 1, 2015.
7. The Petition does not articulate the circumstances surrounding the notice.
8. The Petition states that the parties are currently litigating two cases in the First Judicial Circuit, in and for Walton County, Florida (“Circuit Court”), specifically case numbers 2013-CA-611 and 2013-CA-772, involving quiet title and dissolving the home owners association, respectively.
9. The Petition does not give any further explanation of the proceedings and the issues being litigated in the pending cases in Circuit Court.
FINDINGS OF LAW
10. 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.”
11. 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 and how it received notice of the agency action.
12. Although rule 28-106.111, Florida Administrative Code, “does not eliminate the availability of equitable tolling as a defense,” to a late filed petition, no explanation was given as to what circumstances qualify Petitioner for late filing due to equitable tolling.
13. The Department served and filed the Final Order on November 26, 2014 and noticed the Final Order in the Florida Administrative Registrar on December 3, 2014; therefore, the filing of the Petition by Petitioners months later is well beyond the twenty-one day period as prescribed by rule 28-106.111, Florida Administrative Code.
14. Furthermore, the doctrine of primary jurisdiction allows a circuit court to defer to an agency with specialized subject matter knowledge rather than retain jurisdiction of a case. See Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029 (Fla. 2001).
15. It should be noted that the Department does not have specialized knowledge of quiet title actions or dissolving homeowners associations.
16. Petitioner has cases before a court of competent jurisdiction that would otherwise control the disposition of any future administrative proceeding.
ORDER
Based on the foregoing, it is hereby ORDERED:
1. The Department dismisses the Petition without prejudice for the reasons stated in paragraphs 1 through 16 above.
2. Petitioner has ten days to file an amended petition with the Department that:
a. Demonstrates or alleges the applicability of equitable tolling in this case, and
b. Explains the issues being litigated in Circuit Court, and how these issues will not be dispositive of the issues attempted to be litigated in the administrative process.
DONE AND ORDERED this 9 day of March, 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 this 9th day of March, 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
Daniel C. Perri, Esq.
Law Office of Daniel C. Perri
4 Eleventh Avenue, Suite One
Shalimar, Florida 32579
Attorney for the Petitioners
Mark A. Violette, Esq.
PO Box 5129
Niceville, Florida 32578
Attorney for Respondent
