STATE OF FLORIDA
DEPARTMENT OF ECONOMIC OPPORTUNITY
ROBERT SMITH,
Petitioner,
v.CASE NO.: 16-048
FINAL ORDER NO. DEO-16-121
STATE OF FLORIDA, DEPARTMENT
OF ECONOMIC OPPORTUNITY,
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 Robert Smith (“Petitioner”) dated June 30, 2016.
Statement of Facts
1. On February 8, 2016, the Department received an application for revitalization of covenants under section 720.403, Florida Statutes, from Palm Bay Colony Homeowners’ Association (“Association”).
2. On April 6, 2016, the Department approved the revitalization of the Association’s covenants and issued Final Order No. DEO-16-046 (“Final Order”) having found that all conditions under Chapter 720, Part III, Florida Statutes, had been met.
3. The Final Order was filed with the Department’s Agency Clerk and furnished to the Association on April 7, 2016.
4. On April 11, 2016, the Department filed its notice of the Final Order in the Florida Administrative Registrar.
5. On July 7, 2016, the Department received the Petition for formal hearing.
6. The Petition contains general allegations of malfeasance relating to the Association, and the Association is not a named party.
Findings of Law
7. Section 120.569(2)(c), Florida Statutes, states that “[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.”
8. Rule 28-106.201(2), Florida Administrative Code, specifies the contents required in a petition. The Petition does not include the following items required under rule 28-106.201(2), Florida Administrative Code:
(a) The name and address of each agency affected and each agency’s file or identification number, if known;
(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 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.
9. The Petition does not include the address of the affected agency, does not identify when and how Petitioner received notice of the agency decision, does not identify or allege any disputed issues of material fact, fails to provide a concise statement of the ultimate facts alleged, and does not identify the rules or statutes that would require reversal or modification of the Final Order. Additionally, the Petition fails to provide a statement of the relief sought by Petitioner. A copy of rule 28-106.201, Florida Administrative Code, is attached hereto.
10. An indispensable party is defined under Florida law as “one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party’s interest or the interests of another party in the action.” See Fla. Dep’t of Revenue v. Cummings, 930 So. 2d 604 (Fla. 2006), citing Hertz Corp. v. Piccolo, 453 So. 2d 12, 14 n.3 (Fla. 1984)(describing an indispensable party as one so essential to a suit that no final decision can be rendered without their joinder).
11. In Cummings, the Florida Supreme Court explained that the “general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit, must be made parties either as complainants or defendants, so that a complete decree may be binding upon all parties.” Cumming, 930 So. 2d at 607.
12. Petitioner failed to name the Association as a party Respondent which disregards a materially interested party in the outcome of the litigation, the Association, and prevents the complete adjudication of the allegations in the attached Petition regarding the actions of the Association.
13. Based on applicable legal precedent, the Association has a material interest in this administrative proceeding which seeks a reversal of the Final Order approving the proposed revived declaration of covenants under Chapter 720, Part III, Florida Statutes, and this matter cannot be completely adjudicated without the Association as a party.
Order
Based on the foregoing, it is hereby ORDERED:
- The Department dismisses the Petition without prejudice for the reasons stated in paragraphs 1 through 13 above.
2. Petitioner has ten days to file an amended petition with the Department that complies with rule 28-106.201, Florida Administrative Code, and names the Association as a party Respondent in the above-styled case.
DONE AND ORDERED this 20th day of July, 2016, in Tallahassee, Florida.
/s/ Taylor TeepellTaylor Teepell, 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, Stephanie Chatham, Department of Economic Opportunity, 107 East Madison Street, MSC 110, Tallahassee, FL 32399-4128, Telephone: 850-245-7150, and that a true and correct copy has been furnished via certified mail to Robert J. Smith, 23329 Royal Palm Drive, Palm Bay, Florida 32905 this 20th day of July, 2016.
/s/ Stephanie ChathamStephanie Chatham, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399-4128
Telephone: 850-245-7150
28-106.201 Initiation of Proceedings.
(1) Unless otherwise provided by statute, and except for agency enforcement and disciplinary actions that shall be initiated under Rule 28-106.2015, F.A.C., initiation of proceedings shall be made by written petition to the agency responsible for rendering final agency action. The term “petition” includes any document that requests an evidentiary proceeding and asserts the existence of a disputed issue of material fact. Each petition shall be legible and on 8 1/2 by 11 inch white paper. Unless printed, the impression shall be on one side of the paper only and lines shall be double-spaced.
(2) 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 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.
(3) Upon receipt of a petition involving disputed issues of material fact, the agency shall grant or deny the petition, and if granted shall, unless otherwise provided by law, refer the matter to the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct the hearing. The request shall be accompanied by a copy of the petition and a copy of the notice of agency action.
Rulemaking Authority 14.202, 120.54(3), (5) FS. Law Implemented 120.54(3) FS. History–New 4-1-97, Amended 9-17-98, 1-15-07, 2-5-13.
