Notice of rights - 1998-07-01


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Notice of rights - 1998-07-01

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Notice of rights - 1998-07-01
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English
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Box 2

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Subjects / Keywords:
Ranchers -- Law and legislation -- Florida
Okeechobee, Lake (Fla.) ( lcsh )

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University of South Florida
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University of South Florida
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The University of South Florida Libraries believes that the Item is in the Public Domain under the laws of the United States, but a determination was not made as to its copyright status under the copyright laws of other countries. The Item may not be in the Public Domain under the laws of other countries.
Resource Identifier:
035069031 ( ALEPH )
981477171 ( OCLC )
L41-00033 ( USFLDC DOI )
l41.33 ( USFLDC Handle )

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University of South Florida
Lorida

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PAGE 1

,.., NOTICE OF RIGHTS Section 120.569(1), Fla. Stat. (1997) , requires that "each notice shall infonn the recipient of any administrative hearing or judicial review that is . available under this section , s . 120.57, ors. 120 . 68; shall indicate the procedure which must be followed to obtain the hearing or judicial review, and shall state the time limits which apply." Please note that this Notice of Rights is not intended to provide legal advice . Not all the legal proceedings detailed below may be an applicable or appropriate remedy . You may wish to consult an attorney regarding your legal rights . Petition for Administrative Proceedings 1 . A person whose substantial interests are affected by the South Florida Water Management District ' s (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a fonnal or an infonnal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1 . 511, Fla. Admin. Code, (also published as an exception to the Unifonn Rules of Procedure as Rule 40E-0.109), as set forth below. Petitions are deemed filed upon receipt of the original documents by the SFWMD Clerk. a. Fonnal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a fonnal hearing on a SFWMD decision which does or may detennine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days, except as provided in subsections c. and d. below, of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action . Petitions must substantially comply with the requirements of Rule 28-106.201 (2), Fla. Admin . Code, a copy of the which is attached tO'this Notice of Rights. b. Informal Administrative Hearing: If there are no issues of material fad in dispute, the affected person seeking an informal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(2), Fla. Stat. or for mediation pursuant to Section 120 . 573, Fla . Stat. within 21 days, except as provided in subsections c. and d. below, of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action . Petitions must substantially comply with the requirements . of Rule 28-106.301 (2), Fla. Admin. Code, a copy of the which is attached to this Notice of Rights. c . Administrative Complaint and Order: , f a Respondent objects to a SFWMD Administrative .:omplaint and Order, pursuant to Section 373 . 119, Fla . Stat. (1997), the person named in the Administrative ;omplaint and Order may file a petition for a hearing no , ater than 14 days after the date such order is served . >etitions must substantially comply with the requirements of either subsection a. orb. above . d . State Lands Environmental Resource Pennit: Pursuant to Section 373.427 , Fla . Stat., and Rule 40E-1.511 (3), Fla. Admin. Code (also published as an exception to the Unifonn Rules of Procedure as Rule 40E0 . 109(2)(c)), a petition objecting to the SFWMD's agency action regarding consolidated applications for Environmental Resource Permits and Use of Sovereign Submerged Lands (SLERPs), must be filed within 14 days of the notice of consolidated intent to grant or deny the SLERP . Petitions must substantially comply with the requirements of either subsection a. orb. above. e. Emergency Authorization and Order: A person whose substantial interests are affected by a SFWMD Emergency Authorization and Order , has a right to file a petition under Sections 120.569, 120 . 57(1) , and 120 . 57(2), Fla . Stat., as provided in subsections a . and b . above . However, the person, or the agent of the person responsible for causing or contributing to the emergency conditions shall take whatever action necessary to cause immediate compliance with the terms of the Emergency Authorization and Order. f. Order for Emergency Action: A person whose substantial interests are affected by a SFWMD Order for Emergency Action has a. right to file a petition pursuant to Rules 28-107.005 and 40E-1.611, Fla. Admin. Code, copies of which are attached to this Notice of Rights, and Section 373.119(3), Fla. Stat., for a hearing on the Order. Any subsequent agency action or proposed agency action to initiate a formal revocation proceeding shall be separately noticed pursuant to section g . below . g. Permit Suspension. Revocation. Annulment, and Wrthdrawal: If the SFWMD issues an administrative complaint to suspend, revoke, annul, or withdraw a pennit, the permittee may request a hearing to be conducted in accordance with Sections 120 . 569 and 120.57, Fla. Stat., within 21 days of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Petitions must substantially comply with the requirements of Rule 28-107.004(3), Fla . Admin. Code, a copy of the which is attached to this Notice of Rights. 2. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the SFWMD's final action may be different from the position taken by it previously . Persons whose substantial interests may be affected by Revised July 1 , 1998

PAGE 2

any such final decision of the SFWMD shall have pursuant to Rule 40E-1.511 (2), Fla. Admin. Code (als~ published as an exception to the Unifonn Rules of Procedure as Rule 40E-0.109(2)(c)), an additional 21 days from the date of receipt of notice of said decision to request an administrative hearing . However, the scope of the administrative hearing shall be limited to the substantial deviation. 3. Pursuant to Rule 40E-1.511 (4), Fla. Admin . Code, substantially affected persons entitled to a hearing pursuant to Section 120 . 57(1), Fla . Stat., may waive their right to such a hearing and request an infonnal hearing before the Governing Board pursuant to Section 120.57(2), Fla. Stat., which may be granted at the option of the Governing Board. 4. Pursuant to Rule 28-106.111(3), Fla. Admin. Code, persons may file with the SFWMD a request for extension of time for filing a petition. The SFWMD, for good cause shown, may grant the extension. The request for extension must contain a certificate that the petitioner has consulted with all other parties, if any, concerning the extension and that the SFWMD and all other parties agree to the extension . CIRCUIT COURT 5. Pursuant to Section 373.617, Fla. Stat. , any substantially affected person who claims that final agency action of the SFWMD relating to permit decisions constitutes an unconstitutional taking of property without just compensation may seek judicial review of the action in circuit court by filing a civil action in the circuit court in the judicia~ circuit in which the affected property is located within 90 days of the rendering of the SFWMD's final agency action. 6. Pursuant to Section 403.412, Fla. Stat., any citizen of Florida may bring an action for injunctive relief against the SFWMD to compel the SFWMD to enforce the laws of Chapter 373, Fla. Stat., and Trtle 40E, Fla. Admin. Code. The complaining party must file with the SFWMD Clerk a verified complaint setting forth the fads upon which the complaint is based and the manner in which the complaining party is affected. If the SFWMD does not take appropriate action on the complaint within 30 days of receipt, the complaining farty may then file a civil suit for injunctive relief in the 15 Judicial Circuit in and for Palm Beach County or circuit court in the county where the cause of action allegedly occurred. 7. Pursuant to Section 373.433, Fla. Stat., a private citizen of Florida may file suit in circuit court to require the abatement of any stormwater management system, dam, impoundment, reservoir, appurtenant work or works that violate the provisions of Chapter 373, Fla. Stat. DISTRICT COURT OF APPEAL 8 . Pursuant to Section 120.68, Fla. Stat., a party who is adversely affected by final SFWMD action may seek judicial review of the SFWMD's final decision by filing a notice of appeal pursuant to Florida Rule of Appellate Procedure 9.11 0 in the Fourth District Court of Appeal or in the appellate district where a party resides and filing a second copy of the notice with the SFWMD Clerk within 30 days of rendering of the final SFWMD action. LAND AND WATER ADJUDICATORY COMMISSION 9 . A pany to a "proceeding below" may seek review by the Land and Water Adjudicatory Commission (LAWAC) of SFWMD's final agency action to detennine if such action is consistent with the provisions and purposes of Chapter 373, Fla. Stat. Pursuant to Section 373.114, Fla. Stat., and Rules 42-2.013 and 42-2.0132, Fla. Admin . Code, a request for review of (a) an order or rule of the SFWMD must be filed with LAWAC within 20 days after . rendition of the order or adoption of the rule sought to be reviewed; (b) an order of. the Department of Environmental Protection (DEP) requiring amendment or repeal of a SFWMD rule must be filed with LAWAC within 30 days of rendition of the DEP's order, and (c) a SFWMD order entered pursuant to a fonnal administrative hearing under Section 120.57(1), Fla. Stat., must be filed no later than 20 days after rendition of the SFWMD's final order. Simultaneous with filing, a copy of the request for review must be served on the DEP Secretary, any person named in the SFWMD or DEP final order, and all parties to the proceeding below . A copy of Rule 42-2.013, Fla. Admin. Code is attached to this Notice of Rights. PRIVATE PROPERTY RIGHTS PROTECTION ACT 10. A property owner who alleges a specific action of the SFWMD has inordinately burdened an existing use of the real property, or a vested right to a specific use of the real property, may file a claim in the circuit court where the real property is located within 1 year of the SFWMD action pursuant to the procedures set forth in Subsection 70.001 (4)(a), Fla. Stat. LAND USE AND ENVIRONMENTAL DISPUTE RESOLUTION 11. A property owner who alleges that a SFWMD development order (as that term is defined in Section 70.51 (2)(a), Fla. Stat. to include pennits) or SFWMD enforcement action is unreasonable, or unfairly burdens the use of the real property, may file a request for relief with the SFWMD within 30 days of receipt of the SFWMD's order or notice of agency action pursuant to the procedures set forth in Subsections 70.51 (4) and (6), Fla. Stat. MEDIATION 12. A person whose substantial interests are, or may be, affected by the SFWMD's action may choose mediation as an alternative remedy under Section 120 .573, Fla. Stat. Pursuant to Rule 28-106 .111 (2), Fla. Adm in. Code, the petition for mediation shall be filed within 21 days of either written notice through mail or posting or Revised Ju l y 1 , 1998

PAGE 3

,. , .... publication of notice that the SFWMD has or intends to take final agency action. Choosing mediation will not adversely affect the right to an administrative hearing if mediation does not result in settlement. Pursuant to Rule 28-106.402, Fla. Admin. Code, the contents of the petition for mediation shall contain the following information : (1) the name, address, and telephone number of the person requesting mediation and that person's representative, if any; (2) a statement of the preliminary agency action; (3) an explanation of how the person's substantial interests will be affected by the agency determination; and (4) a statement of relief sought. As provided in Section 120.573, Fla. Stat. (1997), the timely agreement of all the parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57, Fla. Stat., for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within 60 days of the execution of the agreement. If mediation results in settlement of the dispute, the SFWMD must enter a final order incorporating the agreement of the parties. Persons whose substantial interest will be affected by such a modified agency decision have a right to petition for hearing within 21 days of receipt of the final order in accordance with the requirements of Sections 120.569 and 120.57, Fla. Stat., and SFWMD Rule 28-106.201(2), Fla. Admin. Code. If mediation terminates without settlement of the dispute, the SFWMD shall notify all parties in writing that the administrative hearing process under Sections 120.569 and 120.57, Fla. Stat., remain available for disposition of the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action. VARIANCES AND WAIVERS 13. A person who is subject to regulation pursuant to , a SFWMD rule and believes the application of that rule will create a substantial hardship or will violate principles of fairness (as those terms are defined in Subsection 120.542(2), Fla. Stat.) and can demonstrate that the purpose of the underlying statute will be or has been achieved by other means, may file a petition with the SFWMD Clerk requesting a variance from or waiver of the SFWMD rule. Applying for a variance or waiver does not substitute or extend the time for filing a petition for an administrative hearing or exercising any other right that a person may have concerning the SFWMD's action. Pursuant to Rule 28-104.002(2), Fla. Admin. Code, the petition must include the following information: (a) the caption shall read: Petition for (Variance from) or (Yvaiver of) Rule (Citation) (b) The name, address, telephone number and any facsimile numher of the petitioner, (c) The name, address telephone number and any facsimile number of the attorney or qualified representative of the petitioner, Qf any); (d) the applicable rule or portion of the rule; (e) the citation to the statue the rule is implementing; (f) the type of action requested; (g) the specific facts that demonstrate a substantial hardship or violation of principals of fairness that would justify a waiver or variance for the petitioner; (h) the reason why the variance or the waiver requested would serve the purposes of the underlying statute; and (i) a statement of whether the variance or waiver is permanent or temporary, If the variance or waiver is temporary, the petition shall include the dates indicating the duration of the requested variance or waiver. A person requesting an emergency variance from or waiver of a SFWMD rule must clear1y so state in the caption of the petition. In addition to the requirements of Section 120.542(5), Fla. Stat. pursuant to Rule 28104.004(2) , Fla. Admin. Code, the petition must also include : a) the specific facts that make the situation an emergency; and b) the specific facts to show that the petitioner will suffer immediate adverse effect unless the variance or waiver is issued by the SFWMD more expeditiously than the applicable timeframes set forth in Section 120.542, Fla. Stat. WAIVER OF RIGHTS 14. Failure to observe the relevant time frames prescribed above will constitute a waiver of such right. 28-106.201 INITIATION OF PROCEEDINGS (INVOLVING DISPUTED ISSUES OF MATERIAL FACT) (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, and telephone number of the petitioner; 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, as well as the rules and statutes which entitle the petitioner to relief; and (f) A demand for relief. Revised July 1 , 1998

PAGE 4

publication of notice that the SFWMD has or intends to take final agency action. Choosing mediation will not adversely affect the right to an administrative hearing if mediation does not result in settlement. Pursuant to Rule 28-106.402, Fla. Admin. Code, the contents of the petition for mediation shall contain the following information: (1) the name, address, and telephone number of the person requesting mediation and that person's representative, if any; (2) a statement of the preliminary agency action; (3) an explanation of how the person's substantial interests will be affected by the agency determination; and (4) a statement of relief sought. As provided in Section 120.573, Fla. Stat. (1997), the timely agreement of all the parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57, Fla. Stat., for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within 60 days of the execution of the agreement. If mediation results in settlement of the dispute, the SFWMD must enter a final order incorporating the agreement of the parties. Persons whose substantial interest will be affected by such a modified agency decision have a right to petition for hearing within 21 days of receipt of the final order in accordance with the requirements of Sections 120.569 and 120.57, Fla. Stat., and SFWMD Rule 28-106.201(2), Fla. Admin. Code. If mediation terminates without settlement of the dispute, the SFWMD shall notify all parties in writing that the administrative hearing process under Sections 120.569 and 120.57, Fla. Stat., remain available for disposition of the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action. VARIANCES AND WAIVERS 13. A person who is subject to regulation pursuant to a SFWMD rule and believes the application of that rule will create a substantial hardship or will violate principles of fairness (as those terms are defined in Subsection 120.542(2), Fla. Stat.) and can demonstrate that the purpose of the under1ying statute will be or has been achieved by other means, may file a petition with the SFWMD Clerk requesting a variance from or waiver of the SFWMD rule. Applying for a variance or waiver does not substitute or extend the time for filing a petition for an administrative hearing or exercising any other right that a person may have concerning the SFWMD's action. Pursuant to Rule 28-104.002(2), Fla. Admin. Code, the petition must include the following information: (a) the caption shall read: Petition for (Variance from) or 0Afaiver of) Rule (Citation) (b) The name, address, telephone number and any facsimile numher of the petitioner; (c) The name, address telephone number and any facsimile number of the attorney or qualified representative of the petitioner, ~f any); (d) the applicable rule or portion of the rule; (e) the citation to the statue the rule is implementing; (f) the type of action requested; (g) the specific facts that demonstrate a substantial hardship or violation of principals of fairness that would justify a waiver or variance for the petitioner; (h) the reason why the variance or the waiver requested would serve the purposes of the underlying statute; and (i) a statement of whether the variance or waiver is permanent or temporary, If the variance or waiver is temporary, the petition shall include the dates indicating the duration of the requested variance or waiver. A person requesting an emergency variance from or waiver of a SFWMD rule must clear1y so state in the caption of the petition. In addition to the requirements of Section 120.542(5), Fla. Stat. pursuant to Rule 28-104.004(2), Fla. Adm in. Code, the petition must also include: a) the specific facts that make the situation an emergency; and b) the specific facts to show that the petitioner will suffer immediate adverse effect unless the variance or waiver is issued by the SFWMD more expeditiously than the applicable timeframes set forth in Section 120.542, Fla. Stat. WAIVER OF RIGHTS 14. Failure to observe the relevant time frames prescribed above will constitute a waiver of such right. 28-106.201 INITIATION OF PROCEEDINGS (INVOLVING DISPUTED ISSUES OF MATERIAL FACT) (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, and telephone number of the petitioner; 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, as well as the rules and statutes which entitle the petitioner to relief; and (f) A demand for relief. Revised July 1, 1998


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