Item S
BOARD OF COUNTY COMMISSIONERS
Agenda Item Summary
ADD ON
Meeting Date
9/8/04
Division
County Attorney
AGENDA ITEM WORDING
Authorization of counsel to consent to continuation of Administrative Rule Challenge hearing In
Florida Keys Citizens Coalition and Last Stand v. Monroe County, et al.
ITEM BACKGROUND
See Attached.
PREVIOUS RELEVANT BOCC ACTION
On August 18, 2004, the Board authorized counsel to set the hearing between September lS and
October 15, 2004.
CONTRACT f AGREEMENT CHANGES nfa
STAFF RECOMMENDAnONS
Approval
TOTAL COST
n/a
BUDGETED Yes No
COST TO COUNlY
~\" SOURCE OF FUNDS
County Attorney~i, OMB/Purchasing ! Risk Management!
DIVISION DIRECTOR APPROVAL: ~
JOHN R. COLLINS
APPROVED BY:
DOCUMENTATION:
Included xx
To Follow !
Not Required !
AGENDA ITEM #
5,
s.
Memo
To: Mayor Nelson & County Commissioners
From: Bob Shillinger, Asst. County Attorney
Date: September 8, 2004
Re: Administrative Rule Challenge postponement
Counsel for the State has moved to reschedule the hearing before the
DOAH hearing officer for the two week period beginning October 4th. The State
is moving to continue the hearing due to the DCA's need to divert staff, including
lawyers working on the rule challenge as well as witnesses who are going to
testify in defense of the Rule, to work on disaster relief efforts after Hurricane
Frances. A copy of the State's motion is attached for your review. You will note
that this motion is entitled "Second Motion for a Continuance." The second
motion supersedes the first motion although the first motion has yet to be ruled
upon.
This morning I participated in a conference call among lawyers
representing the DCA, the Administration Commission, the Governor's office, the
City of Marathon, and the Petitioners. All of the above expressed a willingness to
agree to postpone the hearing. Due to prior direction from the Mayor, Michael
Burke (the County's outside attorney) and I withheld the County's consent to any
postponement~ We agreed to bring this matter to your attention for input this
afternoon.
The Administrative Law Judge has held off ruling on the second motion for
a continuance until she received input from the County. She is expecting input
from me first thing tomorrow morning.
Mr. Burke and the County Attorney's office strongly recommend that the
Commission authorize us to consent to the motion to postpone for the following
reasons: 1) if we are to convince the ALJ that the County is truly joined in a
partnership with the State, it would helpful to back the State in its request for a
continuance in light of the grounds set forth in the State's motion; 2) preparation
time will be tremendously impacted if no postponement is granted; 3) Mr. Burke
has a specially set jury trial for the week of September 27th which, under the rules
of Judicial Administration, would trump an administrative hearing such as the rule
challenge; 4) additional reasons of a tactical nature; and 5) the dates sought are
within the original window authorized by the Board at its meeting on August 18.
2004.
ST ATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA KEYS CITIZENS COALITION, INC.
and LAST STAND, INC",
Petitioners,
v.
CASE NO. 04-2755RP
FLORIDA ADMINISTRATION COMMISSION
and CIlY OF MARATHON,
Respondents,
and
DEPARTMENT OF COMMUNIlY AFFAIRS,
Intervenor.
/
FLORIDA KEYS CITIZENS COALITION, INC.
and LAST STAND, INC.,
Petitioners,
v.
CASE NO. 04-2756RP
FLORIDA ADMINISTRATION COMMISSION
and MONROE COUNTY,
Respondents,
and
DEPARTMENT OF COMMUNIlY AFFAIRS,
Intervenor.
/
SECOND MOTION FOR CONTINUANCE
BY THE ADMINISTRATION COMMISSION
AND DEPARTMENT OF COMMUNITY AFFAIRS..
AND REOUEST FOR EXPEDITED CONSIDERA nON OF THIS MOTION
Respondent Administration Commission and Intervenor Department of Community
Affairs move for a further continuance of the final hearing in this case because:
1. The final hearing in this case is presently scheduled for September 15-17, 20-24, 27
and 28, 2004.
2. On Thursday, September1, 2004, the Administration Commission and the Department
of Community Affairs filed a Motion for Continuance based upon the prediction that Hurricane
Frances would strike some portion of Florida The first Motion requested a continuance of the
commencement of the final hearing until Monday, September 20,2004. As of the date of filing
this Second Motion for Continuance, the first Motion had not been ruled upon.
3. The Department of CommWlity Affairs includes the Division of Emergency
Management. The Florida Emergency Information Hotline ("FElL"), which is staffed by
Department employees who are not employees of the Division of Emergency Management, has
been activated since Thursday, September 1, 2004. All employees of the Department, including
the undersigned and the employees that the Department intends to call as witnesses at the final
hearing, have put aside their ordinary duties in order to assist the Division of Emergency
Management with the evacuation, response and recovery operations. Since slow-moving
Hurricane Frances struck Florida twice over a period of three days, the FElL has been activated
on a 24/7 basis since September 1, and is anticipated to remain activated for the remainder of this
week. In addition, the Department will ask many employees to volunteer for field assignments
to assist with the recovery.
4. Some of the attorneys for the Petitioners and for Respondents Monroe COlDlty and
City of Marathon reside in Broward County, and were adversely affected by Hurricane Frances.
These attorneys planned to spend the next two weeks preparing for the final hearing in this case,
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but instead will lose several days of preparation time as electricity is restored and debris is
cleaned-up.
5. As of the date of filing this Motion, the National Weather Service has predicted that
Hurricane Ivan may strike some portion of Florida as a Category 4 or higher storm within the
next week. If Hurricane Ivan threatens Florid~ the FElL will remain activated until well into
next week. If Hurricane Ivan strikes Florida, Department employees will be expected to further
assist the evacuation, response and recovery efforts.
6. The Parties have discussed limiting the potential issues, and now believe that the
whole 10 days set for the final hearing may not be required.
7. The attorneys for Monroe COWlty are not available during the week of September 27
because of prior commitments, therefore the Department and the Administration Commission
request a further continuance of two weeks from the previous request.
8. The movants respectfully request expedited consideration of this motion for
continuance, since the conditions described in paragraphs 3 and 4 are occurring at the time that
this motion is filed.
9. The undersigned counsel has consulted with counsel for all other parties to this
proceeding and is authorized to represent that the Petitioners and Respondent City of Marathon
do not object to this motion. The COWlty Commission of Respondent Monroe County will
consider this motion at a meeting this afternoon, and cOWlsel for Respondent will recommend
not objecting; however as of the time of filing the County does not take a position on this
motion.
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WHEREFORE, Respondent Administration Commission and Intervenor Department of
Community Affairs respectfully request that the final hearing in this case be rescheduled for
October 4-8 and 11-15,2004.
I HEREBY CERTIFY that a copy of the foregoing has been delivered to the parties
listed below this 8th day of September, 2004.
u.s. Mail and email:
Richard Grosso, Esq.
Robert Hartsell, Esq.
Environmental & Land Use Law
Center, Inc.
Shepard Broad Law Center
3305 College Avenue
Fort Lauderdale, Florida 33314
Nancy E. Stroud, Esq.
Weiss, Serota, Helfman,
Pastoriza & Guedes, P .A.
3107 Stirling Road, Suite 300
Fort Lauderdale, FL 33312
John R. Herin, Esq.
Steams, Weaver, Weissler,
Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
/s/
Timothy E. Dennis, Assistant General Counsel
Fla. Bar No. 575410
David L. Jordan, Deputy General Counsel
Fla Bar No. 291609
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
(850) 488-0410 (850) 922-2679 fax
Robert B. Shillinger, Jr. Assist. COWlty Attorney
P.O. Box 1026
Key West, Florida 33041
Michael Thomas Burke, Esq.
Johnson, Anselmo, Murdoch, et al
2455 East Sunrise Boulevard, Suite 1000
Fort Lauderdale, FL 33304-3113
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Interagencv Mail and email:
Chanta Combs, Esq.
Office of the Governor
The Capital, Suite 209
Tallahassee, FL 32399-1001
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