DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
DEO Final Order No. DEO-16-176
In the Matter of
TOWN OF JENNINGS,Case No. 16-114
Final Order No. DEO-16-176
Petitioner.
/
FINAL ORDER DISMISSING PETITION FOR ADMINISTRATIVE HEARING AND DENYING PETITION FOR WAIVER
This matter is before the Department of Economic Opportunity (“Department”) based on a two-part petition submitted by the Town of Jennings (“Jennings.”) The petition simultaneously seeks an administrative hearing involving a disputed issue of fact and a waiver of Rule 73C-23.0041(5)(c)2.a., Florida Administrative Code, as applied to Jennings’ application under the Department’s 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
1. 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.
2. Jennings timely submitted an application on April 25, 2016. Jennings was seeking $600,000.00 to improve its water and sewer systems.
3. 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.
4. 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.
5. 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.
6. Jennings’ second public hearing advertisement failed to include where and when a copy of the draft application would be available for citizen review other than at the public hearing.
7. 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, their application could not be considered and was rejected.
8. On June 24, 2016, Jennings filed a two-part petition. The first part is a petition for administrative hearing involving a disputed issue of fact. The second part is a petition for waiver from the citizen participation requirements included in Rule 73C-23, Florida Administrative Code.
9. As its basis for the petition for administrative hearing involving a disputed issue of fact, Jennings argued that its second public notice fully complied with the citizen participation requirements of Rule 73C-23, Florida Administrative Code. Additionally, Jennings did not precisely state what action the Department should take with respect to the Department’s rejection of Jennings’ application.
10. As its basis for the petition for waiver, Jennings did not identify which specific facts it thought justified a waiver and did not address why the waiver requested would serve the purposes of the underlying statute. Additionally, Jennings did not address its decision to seek a waiver months after it had already failed to meet the rule’s requirements.
11. In addition to rejecting Jennings’ application, the Department has rejected four other applications for the federal fiscal year 2015 Small Cities CDBG program for neighborhood revitalization. Furthermore, the Department rejected all applications for the federal fiscal year 2015 Small Cities CDBG program for housing rehabilitation as well because of noncompliance with the Department’s rule regarding citizen participation. A new application cycle for the fiscal year 2016 Small Cities CDBG program for housing rehabilitation is opening soon.
Conclusions of Law
12. Jennings filed its two-part petition under sections 120.569, Florida Statutes, and 120.57(2), Florida Statutes, respectively.
13. With regards to the 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].”
14. 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.
15. 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.”
16. Jennings’ petition for administrative hearing involving a disputed issue of fact does not state precisely the action Jennings wishes the Department to take with respect to the Department’s rejection of Jennings’ application. Instead, it merely requests that the Department’s decision be referred to the Division of Administrative Hearings (DOAH) for review.
17. Instead of following the requirements of Rule 28-106.201(2), Florida Administrative Code, Jennings’ petition for administrative hearing involving a disputed issue of fact omits necessary language. Therefore, Jennings’ petition for administrative hearing involving a disputed issue of fact shall be dismissed.
18. With regards to the petition for waiver, section 120.542(2), Florida Statutes, states:
Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. For purposes of this section, “substantial hardship” means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. For purposes of this section, “principles of fairness” are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.
19. Jennings does not adequately explain in its petition for waiver why the application of Rule 73C-23, Florida Administrative Code, would create a “substantial hardship” or would violate the “principles of fairness.” Jennings only explains that the “water system and sewer treatment systems will not be able to be upgraded to better serve the people and businesses living and working in the Town” and does not link this claim of harm to the actual application of the rule.
20. 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.
21. Overall, however, the issue of waiver is moot. The Department has already rejected all federal fiscal year 2015 Small Cities CDBG applications for housing rehabilitation. A new application cycle for the fiscal year 2016 Small Cities CDBG program for housing rehabilitation is opening soon, and Jennings will be able to reapply.
22. Jennings petition for waiver did not expressly illuminate any connection between any “substantial hardship” and the application of Rule 73C-23, Florida Administrative Code. Additionally, the petition for waiver was not timely submitted for consideration. Therefore, Jennings’ petition for waiver shall be denied.
Conclusion
Based on the foregoing argument and citation to authority, the Department hereby dismisses Jennings’ petition for administrative hearing involving a disputed issue of fact and denies Jennings’ petition for waiver.
DONE AND ORDERED in Tallahassee, Florida, this 22nd day of September 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 Petition for Administrative Hearing and Denying Petition for Waiver 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 22nd day of September, 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
Brant Hargrove, Esq.
1291 Cedar Center Drive
Tallahassee, FL, 32301
By Email Delivery
Hillary Ryan, Esq.
Bureau Chief
Division of Community Development
Department of Economic Opportunity
Tallahassee, Florida 32399
Hillary.Ryan@deo.myflorida.com
