Fort Walton Beach Council agenda — 05-22-2007 regular agenda — reading text

called Petitioners but did not speak to them. However, it should be considered that Petitioners would object to this motion. Wherefore, the Court should strike the purported amended petition and grant further relief consistent with this action, Motion to ReUnqul8h Jurisdiction S. Defendant City moves for entry of an order relinquishing juris.dictiOD because there is no genuine issue tIS to any material fact in this case. 6. On 22 February 2007, the Department filed with this Court its Intent to Issue which stated " The Department has determined that a wastewater pennit is required for the facility [ at 1564 Percy Coleman Road, Ft. Walton Beach, FL 32549 in Okaloosa County].'. E' d 8288- YY2 rOS8) hau~ o~~~ '~ Je~~ ' 1 JUOl SY: 01 L002 20 hew 8v:~ T LOO~ ~ neW  7. On April 16, 2007, Petitioners filed a number of documents with the Court of at least 94 pages. Those documents are now, by order of the Court, of record in this matter. 8. Petitioners seek relief not available as a remedy in this proceeding. 9. The originaJ Petition states: A statement of relief sough [ sic] by Petitioner stating precisely the action that the Petitioner wants the Department to take with the respect to its proposed decision. A petition of relief of permit for the Percy L. Coleman plant to build more holding ponds to contain water from overflowing onto private property. And pay restitution for damage caused by previous events to our real property and make modifications to prevent future damages due to overflowing of said plant. " 10. The purported Amended Petition states: A statement ofreHcfsough [ sic] by Petitioner stating precisely the action that the Petitioner wants the Department to take with the respect to its proposed decision. A petition of relief of permit for the Percy L.Coleman plant to build more holding ponds to contain water from overflowing onto private property. .. 11. The relief sought by Petitioners is beyond the jurisdiction of this administrative Court and applicable Florida law. 12. The purpose of this proceeding is to formulate fmal agency action. See Sumter Citizens Against Irrespo1tdble Development, et. ai., v. Southwest Fla. Management Wate,. District, e( a/, at * 14, 2002 WI. 1453934 (pIa. Div. Admin. Hrgs., June 24, 2002). 13. Pursuant to rule 62-4.05S, Permit Processing, Fla. Admin. Code ( 2006), final agency actions require only that " permits shall be approved or denied. " 14. Conditions applicable to the issue of a permi~ pursuant to rule 62-4. 106, Fla. Admin.Code, could not contain requirements for construction of more ho~ding ponds. 15. Defendant City has conferred with the Department regarding this motion. The DepBrtment does not object to this motion. Defendant City called Petitioners but did not speak to them..However. it should be considered that Petitioners would object to this motion. to' d S2SB- toto2 rOgB) hau~ o~~~ '~~ e~~ " ~ UOl gto: Ol L002 20 hew 8v:~ 1 LOO~ ~ neW  Wherefore, Defendant City requests the Court render a final recommended order to relinquish jurisdiction because, upon review and consideration of the entire fC(: ord, there is no genuine issue as to any material fact in this case that Petitioners seek a remedy and relief which may not be granted in this action and that grants fw1her relief coasistcnt with this action. Motion for Attorneys Feet & I:COlts 16. Pursuant to ~ 120. 595, Fla. Stat. ( 2006), Defendant City moves for an award of attorney' s fee and costs in this matter. 17. The undersigned is a contract attomey for the City of Fort Walton Beach. The City is required to pay the undersigned a reasonable fee and costs for participation in this proceeding. 18. Petitioner's have instituted and participated in this proceeding primarily to harass and cause unnecessary delay to Defendant City, and for the frivolous pwpose of gaining media attention. 19. On April 16, 2007, Petitioner's filed a 94- page document that contained a document called " Witnesses." The witness list is page 7 of the PDF document loaded on the docket. 20. This witness list includes the following statement: INIVITATIONS WEAR CHANNEL 3 NEWS Ft. Walton Beach Daily News" II 21. This written statement of such " invitations a. is now of record with the Court b. is Petitionersl own statement c. is an exception to any hearsay rule as a statement against Petitioner's inte~ st pursuant to ~ 90. 803(18), Fla. Stat. (2006); and d. should be a factual fmding of the Court. 22. Once a factual fmeting of the Court, the written statement of "invitations" is proof of Petitioners' having instituted and participated in this proc:eeding primarily to harass and cause unnecessary delay to Defendant City, and for the frivolous purpose of gaining media attention. 23. Defendant City has conferred with the Department regarding this motion. The Department does neither objects or agrees with this motion. Defendant City called g. d 828S-"'''' 2 r~ gs) hau~ o~~~ '~~ e~~ ., ~ UOl g"': OI L002 20 hew 8v: G1 LOOG G n~ W  Petitioners but did not speale to them. However, it should be considered that Petitioners would object to this motion. Wherefore, Defendant City requests the Court award a reasonable attorney fee and costs for this proceeding and grant further relief consistent with this action. Request tor He. riDl Defendant City moves for a hearing to be scheduled on the motions to strike and to relinquish jurisdiction. This matter is set for ftnal hearing on June S and 6, 2007. Depositions have been scheduled on May 24 and 25, 2007. The disposition of the motion rike and motion to relinquish jurisdiction is necessary for the proper preparation of to st: the case for fmal hearing. Wherefore, Defendant City requests the Court without the necessity of a hearing make aruling on the motions or, if necessary, set a hearing to be scheduled as expediently as possible and for further relief cODsistent with this action. This certiflCS that a (:()py of this document was forwarded by facsimile and regular US mail to Clerk, 1230 Apalachee Pkwy, Tallahassee, FL 32399- 3060, 850. 921.6847, Adam Schwartz, 3900 Conunonwea1th Blvd. Mail Station 35, Tallahassee FL 32399, 8S0. 245. 2297t Robert & Mary O' Daniels~ 125 W Roberts Rd. Defuniak Springs, FL 32433, on 2 May 2007. Respectfully Submitted c!hn I<az2 ~ A.' Toni L.Craig Attorney at Law Fla. Bar No.: 115444 244 Racetrack Rei NE Fort Walton Beach FL 32547. 1866 Phone: ( 850) 243- 6969 Fax: ( 850) 244-8929 Attorney for Defendant City of Fort Walton Beach 9' d 6268-.. 2 rOS8) ~ au~ o~~~ '~~ e~~ ' I ~UOl S.: OI L002 20 ~ ew 6v: G1 LOOG G n~ W  STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ROBERT AND MARY O' DANIELS, Petitioners, vs. Case No. 07- 0954 CITY OF FT. WALTON BEACH and DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents. ORDER ON CITY' S MOTION TO STRIKE, ETC. This case isundersigned on the Motion to before the Strike, etc., by filed City of Fort Walton Beach on May 2, the 2007. The Department of Environmental Protection ( DEP) joined motion filing that date. portions of the through a on same Petitioners did not file a response to the motion within the time allowed by Florida Administrative Code Rule 28- 106. 204( 1) No hearing is necessary to rule on the motion. The motion seeks an Order striking the " amended petition" that was included with the documents filed by Petitioners on 16, 2007. The " amended petition" is the same document April that was filed with DEP on or about February 5, 2007, in to DEP' s Order Dismissing Petition with Leave to Amend. response The did not realize that the documents were the same undersigned when the Order was entered April on 18, 2007, directing Petitioners to file an appropriate motion if they were seeking leave to amend their petition. The motion also relinquishing jurisdiction seeks an Order over this matter to DEP are seeking relief because