STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF DAYTONA BEACH, )
)
Petitioner, )
)
vs. ) Case No. 04-1905
)
ST. JOHNS RIVER WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on August 4, 2004, in Daytona Beach, Florida.
APPEARANCES
For Petitioner: Howard K. Heims, Esquire
Littman, Sherlock & Heims, P.A. Post Office Box 1197
Stuart, Florida 34995
Marcy I. LaHart, Esquire Marcy I. LaHart, P.A.
711 Talladega Street
West Palm Beach, Florida 33405-1443
For Respondent: Janice M. McLean, Esquire
William H. Congdon, Esquire
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
ISSUE
The narrow issue is whether the City of Daytona Beach's (City's) Petition for Administrative Hearing (Petition) challenging certain special conditions in its water use permit was timely.
BACKGROUND
This matter began on May 21, 2004, when the City filed its Petition seeking to modify or delete conditions 2, 3, 6, 10, 12- 14, 19, and 24 imposed by Respondent, St. Johns River Water Management District (District), after the District renewed the City's Consumptive Use Permit 2-127-0320. The Petition asserted that it was being filed in response to proposed agency action issued by the District on April 29, 2004, and received by the City on April 30, 2004.
The matter was forwarded to the Division of Administrative Hearings (DOAH) on May 28, 2004, with a request that an administrative law judge conduct a hearing.
On June 9, 2004, the District filed a Motion to Dismiss (Motion) the Petition on the ground that the proposed agency action approving the renewal of the permit was actually issued on January 29, 2004; that notice of such action was received by the City on January 30, 2004; and that the City waived its point of entry by not filing its request for a hearing until May 21, 2004. Because the Motion raised matters dependent on facts not
yet proven, the Motion was denied by Order dated June 25, 2004, without prejudice to the District renewing its motion at a later time. On July 1, 2004, a Renewed Motion to Dismiss (Renewed Motion) was filed by the District raising essentially the same grounds as in its first Motion.
By Order dated June 29, 2004, an evidentiary hearing was scheduled on July 27, 2004, in Daytona Beach, Florida, on the limited issue of whether the Petition was timely filed. At the request of the City, the matter was rescheduled to August 4, 2004, at the same location.
At the hearing, the City presented the testimony of Dennis
R. Colby, former City Manager of Water and Wastewater; Stan R. Lemke, City Public Works Director; Dwight T. Jenkins, District Director of the Division of Water Use Regulation; Gerhardt M. Witt, a professional hydrogeologist; and James Thurrott, City Assistant Manager of Water and Streets. Also, it offered City Exhibits 1-12. All were received in evidence except Exhibit 11, on which a ruling was reserved. That exhibit is hereby received in evidence. The District presented the testimony of Dwight T. Jenkins, Director of the Division of Water Use Regulation, and James Hollingshead, Supervising Regulatory Hydrologist in its Orlando District Office. Also, it offered District Exhibits 1 and 2, which were received in evidence. Finally, the undersigned granted the District's Unopposed Motion for Official
Recognition of Sections 120.569 and 120.57, Florida Statutes (2003); Florida Administrative Code Chapter 28-106 and Florida Administrative Code Rule 40C-1.1007; the District's First Request for Admissions; and the City's Response to the District's First Request for Admissions. (The latter two items have also been received in evidence as District Exhibits 1
and 2.)
At the conclusion of the hearing, the parties requested that no action be taken on the Renewed Motion until the parties submitted a status report on August 27, 2004, indicating whether a settlement in the case had been reached. At the request of the parties, this time period was extended to September 17, 2004. On September 23, 2004, a Status Report was filed by the District indicating that the parties had not reached an agreement.
A Transcript of the hearing was filed on August 15, 2004. Proposed Findings of Fact and Conclusions of Law were filed by the parties on August 24, 2004, and they have been considered by the undersigned in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the evidence presented by the parties, the following findings of fact are made:
Permit Number 2-127-0320 (Permit) was issued by the District on December 14, 1992, and was scheduled to expire on
December 14, 1999, seven years later. The Permit authorized the City to withdraw 5,849 million gallons per year of groundwater from the Floridan aquifer for household, water utility, and essential uses. On August 28, 1998, the City filed an application to renew the Permit. In May 2004, the District approved the application, with certain modifications.
To place this phase of the controversy in proper perspective, a review of the District's application review process is helpful. After an application for a consumptive water use permit is filed by an applicant, the District's Division of Water Use Regulation (Division) undertakes a preliminary review. If further information is needed to resolve the Division's concerns, the applicant is requested to submit additional information. A determination is then made as to whether the additional information provided by the applicant is deemed to be "sufficient" so as to render the application complete; if not, the Division staff (staff) often collects additional information on its own initiative to resolve any outstanding concerns. Once an application is deemed complete through responses from an applicant, or after additional information is obtained by the staff, the staff prepares and issues a document known as a Technical Staff Report (TSR), which represents the staff recommendation and the District's notice of intent to grant or deny the application. In some cases,
however, a draft TSR, which contains the staff's preliminary recommendation, may be issued before the final TSR is prepared.
After the TSR is prepared, the Division notifies the District's Division of Permit Data Services (Data Services) that a package of documents (known as the noticing package) consisting of the TSR, Written Notice of Intended Decision, and Notice of Rights should be sent to the applicant and other interested parties. This noticing package is generated through an automated system maintained by Data Services and offers substantially affected persons a point of entry to contest the proposed agency action.
More than one TSR can be issued by the District while an application is pending. However, only one noticing package (which includes a point of entry) is sent to the applicant and interested persons. After a point of entry is offered, the TSR is placed on the agenda of the District's Governing Board, which may approve, approve with modification, or deny the application. In the rare case when the Governing Board reaches a decision which "substantially differs from the notice of District decision," a new point of entry is offered.
After a TSR is issued, and a point of entry offered, but before the Governing Board considers the matter, an applicant may still submit new information to the staff in an effort to resolve any outstanding issues raised in the TSR.
Indeed, in some cases, a "revised" TSR may be prepared, which reflects any changes brought about by the submission of new information, but a new point of entry is not offered (unless the changes in the revised TSR are substantial). When a revised TSR is prepared, it typically contains strike-throughs and underlines to reflect any changes made.
In this case, a number of contentious issues arose between the City and the staff during the review process, particularly involving impacts to wetlands. Consequently, between December 1998 and September 2000, at least four requests for additional information were made by the staff. However, this information never fully resolved the issues to the staff's satisfaction. On July 11, 2003, the staff issued a draft TSR containing its preliminary conclusions, including one regarding the wetland impacts issue. Because the TSR was a "draft," it was not accompanied by a Written Notice of Intended Decision or Notice of Rights.
At the request of the City, on October 3, 2003, a "primarily technical" meeting was held in Daytona Beach for the purpose of allowing the staff to give a presentation concerning its findings in the draft TSR. Several City staffers attended the meeting. No attorneys for either party were present.
Mr. Dennis R. Colby, then the City's Manager of Water and Wastewater Utilities, and the person who signed the City's
application, recalled that at the meeting Mr. Dwight T. Jenkins, Division Director and an attendee at the meeting, advised him that the City would "have its day in court" after the Governing Board voted on the permit application. Mr. Colby, who is not an attorney, says he understood this to mean that the City could request a hearing after the Governing Board voted on the City's application. He did not confirm this understanding with any other person, including anyone at the District or in the City Attorney's Office, nor did he raise the issue again.
Another City staffer, Stan R. Lemke, City Public Works Director, attended the same meeting and recalled a slightly different version of events in which Mr. Jenkins allegedly said words to the effect that "if [the City] got to the Governing Board and [the City] didn't like the outcome," that it could then file a petition for a hearing.
Mr. Jenkins "very clearly" recalled that he did not offer any procedural advice at that meeting and that all of his comments were directed to technical issues. Another District employee, James Hollingshead, who also attended the meeting, could not recall Mr. Jenkins giving any procedural advice of the type described by Mr. Colby or Mr. Lemke. The testimony of
Mr. Jenkins is accepted as being the most credible on this issue because Mr. Jenkins is also an attorney and he "fully
underst[ood] the ramifications that are associated with advising somebody regarding their legal rights."
On January 26, 2004, the Division finalized its TSR on the City's application and alerted Data Services that a noticing package should be sent to the City and other interested persons. On January 29, 2004, Data Services issued a computer-generated package consisting of the TSR, Notice of Intended District Decision, and Notice of Rights. The TSR recommended approval of Permit Application 8834 subject, however, to twenty-four special conditions, of which nine are opposed by the City. The Notice of Rights specifically advised the City that it was required to file a petition for administrative hearing, or a request for an extension of time to file a petition under Florida Administrative Code Rule 28-106.111(3), by February 26, 2004. The noticing package also indicated that the Governing Board would take final action on the application at a meeting to be held on February 10, 2004.
Although the City has in-house counsel, and later hired outside counsel to represent it in this action, on its application filed with the District, the City listed Mr. Colby as its designated representative. (The City never advised the District that notices and other papers should be sent to anyone other than Mr. Colby.) Consistent with its practice of sending all noticing packages to the designated representative on an
application, Data Services sent the noticing package to
Mr. Colby by certified mail. The receipt (green card) indicates that the Notice of Rights (and other documents) was received by the City on January 30, 2004, as acknowledged by the signature of another City employee, Francis X. Bell, who is authorized by the City to sign the return receipt green cards. It is fair to infer from the evidence that Mr. Colby did not alert the City Attorney about the deadline provided in the Notice of Rights or seek legal advice on what steps the City should take. In fact, the evidence shows that it was not until at least March or more likely April 2004 that an attorney for the City became involved in this matter.1
On February 1, 2004, the District published a notice in The News Journal, a newspaper of general circulation in Volusia County, advising that a notice of intent regarding the City's application had been issued and that all petitions for administrative hearings must be filed within 21 days after publication of the notice, or within 26 days of the District depositing the Notice of Intent in the mail for those persons who receive actual notice.
At the City's request, on February 3, 2004, City representatives again met with staff to discuss the pending case.
Because the City was aware that the Governing Board intended to take final action on the City's application at its February 10 meeting, on February 4, 2004, Mr. Lemke sent a letter to Mr. Jenkins requesting that the District defer consideration of the application until a later date. More specifically, the letter stated in relevant part that
I understand we are on the February 10, 2004 Agenda for discussion of our consumptive use permit. We believe additional discussion is warranted prior to proceeding. Please accept this as a formal request for an extension.
* * *
Our consultant recently hired a biologist to assist in the review of the wetlands information. His analysis resulted in a report on the wetland condition dated January 28, 2004. A copy of this report is enclosed for your review.
It is our opinion following your review of the information presented our respective staffs should meet one more time to resolve our technical differences. Following this meeting, I believe we will be prepared to go before the Board for issuance of our consumptive use permit. We would like to request we be placed on the April Agenda to allow adequate time for comments.
The letter did not request a hearing, request an extension of time to file a request for a hearing, or otherwise directly or indirectly respond to the Notice of Rights previously received by the City on January 30, 2004. Although the City suggests otherwise, a fair construction of the letter
is that Mr. Lemke was simply asking that the City's application be placed on the April 2004 agenda, so that the staff could review the biologist's report prepared a few days earlier. In accordance with Mr. Lemke's request, Mr. Jenkins asked that the item be removed from the February 10, 2004, agenda and that it be rescheduled to the April 2004 meeting.
On February 5, 2004, Mr. Witt, a hydrogeologist employed by the City since August 2003 as an outside consultant, also sent a letter to Mr. Jenkins labeled as a "Time Extension Request" in which, among other things, he requested
on behalf of the City that the [District] postpone by two (2) months (i.e., time extension) their submittal of the staff report and permit for the governing board for approval. It is the City's desire to avoid having to file for an administrative hearing in order to have an impartial review.
At hearing, Mr. Witt explained that he had been authorized by Mr. Lemke to send the letter. Also, while the letter did not specifically say so, Mr. Witt stated that it was intended to serve as a request for an extension of time to file a request for a hearing, and not simply to request a postponement of a decision by the Governing Board.
Before drafting his letter, Mr. Witt did not consult with an attorney or read the Notice of Rights, the District's procedural rules, or the Uniform Rules of Procedure. According
to Mr. Colby, Mr. Witt was authorized to "evaluate documents, report back to the [C]ity, and have communications with St.
Johns, ask questions from St. Johns, [and] look at documents." It seems unlikely, however, that the City had authorized
Mr. Witt, a hydrogeologist, to protect its legal rights, and it never advised the District that Mr. Witt was authorized to seek that type of relief. In any event, because Mr. Witt was in the process of preparing a report on wetlands impacts (which was completed on February 27, 2004), a fair construction of the letter is that Mr. Witt was merely seconding Mr. Lemke's request that the Governing Board take up the City's application at a later date so that the staff could consider the newly-prepared consultants' reports prior to a final decision being made.
Mr. Jenkins did not treat either letter as a formal request for an extension of time to file a request for a hearing under Florida Administrative Code Rule 28-106.111(3) and therefore did not forward them to the District's Office of the General Counsel. Instead, he treated them as requests to defer consideration of the application by the Governing Board until a later date. This action was consistent with the language in the two letters. It also comports with testimony by Mr. Colby and Mr. Lemke that they were under the impression, albeit incorrect, that it was not necessary to file a request for a hearing until after the Governing Board voted on the City's application.
Finally, although it would seem logical to do so if the two letters were intended to be requests for an extension of time to file a petition, neither Mr. Lemke or Mr. Witt made any follow- up inquiry to determine if their "requests" for an extension of time had been granted, and if so, the new date for filing a petition.
On March 3, 2004, Mr. Lemke sent a letter to a District hydrologist, James Hollingshead, in which he indicated that the City agreed with all twenty-four conditions in the Permit except conditions 2, 3, 6, 10, 12-14, 19, and 24. As to those conditions, Mr. Lemke proposed suggested changes. The letter did not request a hearing, but did indicate that the City looked "forward to a meeting with the District staff prior to the April Board meeting." The letter also included Mr. Witt's report completed a few days earlier.
After receiving Mr. Witt's report (and the earlier report by the City's biologist), the staff undertook another review of the application in light of the new information in the reports. On March 25, 2004, Mr. Hollingshead telephoned
Mr. Lemke and advised that the staff had conducted an additional field investigation and that its analysis would not be completed for two more weeks. As a consequence, the staff was requesting that the TSR dated January 26, 2004, be taken up at the
Governing Board's May 2004 meeting, and not in April, as originally planned.
On April 14, 2004, Mr. Hollingshead e-mailed Mr. Lemke and advised him that the staff had completed its review of
Mr. Witt's report and that except for certain "date changes" in the permit conditions, it did not intend to change its recommended agency action.
At the request of the City, on April 20, 2004, another meeting was held with the staff. Mr. James Thurrott, who is the City's Assistant Manager for Water and Streets, attended the meeting and says he recalled Mr. Jenkins advising that the City could either mediate the dispute or have "an administrative hearing once the governing board took an action." Mr. Witt, who also attended that meeting, recalled that Mr. Jenkins described the point of entry process and that the Governing Board "preferred it be done before the [B]oard meeting, but it could be done after the [B]oard meeting." (Mr. Witt's recollection of this conversation was somewhat confusing, for he first indicated that the meeting occurred in October 2003 and then later stated it was February 2004. More than likely, however, Mr. Witt was referring to the meeting held on April 20, 2004, since Mr. Witt recalled that the City's outside counsel was also present at the meeting.)
Again, Mr. Jenkins denied giving procedural, as opposed to technical, advice to the City and says he referred any legal questions to the City's outside counsel, who by then was participating in the case and attended this meeting. This version of the events is accepted as being more credible, particularly since counsel for the City was present.
On April 26, 2004, the Division prepared another TSR incorporating certain changes to the conditions suggested by the City. Due to inadvertence and miscommunication, Data Services generated a second noticing package on April 29, 2004, containing not only the new TSR, but also another Notice of Intended Decision (Second Notice) and Notice of Rights. While no changes were made to conditions 2, 3, 6, 10, and 19, certain changes (presumably suggested by the City) were made to the other disputed conditions. These changes, however, were not so substantial as to warrant the issuance of another point of entry (even though one was erroneously sent by Data Services).
The second package was sent by certified mail to Mr. Colby and was received by the City on April 30, 2004. The return receipt indicates that Francis X. Bell again signed the green card on behalf of the City.
At the City's request, on May 3, 2004, the City and staff held another meeting to discuss the proposed permit conditions and wetlands mitigation projects.
On May 5, 2004, Mr. Lemke sent a letter to Mr. Jenkins in which he indicated that, based on discussions at the May 3 meeting, the City was offering additional suggestions regarding conditions 3, 6, and 14. He also discussed several points of agreement that were reached at the meeting on other issues.
On May 6, 2004, the Division issued a Revised TSR which incorporated the changes previously made in the April 26, 2004, TSR. (The Revised TSR contains strike-throughs and underlines reflecting the changes made in the April 26, 2004, TSR. Whether further changes were made as a result of
Mr. Lemke's letter of May 3 is not of record.) Because the changes were not substantial, a new point of entry was not offered the City.
On May 11, 2004, the Governing Board approved the issuance of the Permit, as recommended in the Revised TSR.
On May 21, 2004, the City filed its Petition requesting a formal hearing and asking that the District modify the Permit issued on May 11, 2004, "as proposed in [its letters dated] March 3, 2004, and May 5, 2004." Thus, the City was challenging special conditions 2, 3, 6, 10, 12-14, 19, and 24. The Petition indicated that it was being filed in response to the point of entry received by the City on April 30, 2004. Not surprisingly, it made no reference to the first point of entry
received by the City on January 30, 2004. After the Petition was referred to DOAH, the District filed its Renewed Motion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2003).
The narrow issue here is whether the District's Renewed Motion should be granted on the ground that the City's Petition was untimely. Pertinent to this dispute is Florida Administrative Code Rule 28-106.111, which provides in relevant part as follows:
The notice of agency decision shall contain information required by Section 120.569(1), F.S. The notice shall also advise whether mediation under Section 120.573, F.S., is available as an alternative remedy, and if available, that pursuit of mediation will not adversely affect the right to administrative proceedings in the event mediation does not result in a settlement.
Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.
An agency may, for good cause shown, grant a request for an extension of time for filing an initial pleading. Requests for extension of time must be filed with the agency prior to the applicable deadline. Such requests for extensions of time shall
contain a certificate that the moving party has consulted with all other parties, if any, concerning the extension and that the agency and any other parties agree to said extension. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon.
Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters.
Florida Administrative Code Rule 40C-1.1007 provides in relevant part as follows:
(2)(a) "Receipt of written notice of a District decision" as set forth in Rule 28- 106.111, F.A.C., means receipt of either written notice that the District intends to take or has taken final agency action, or publication of notice that the District intends to take or has taken final agency action. If the District's Governing Board takes action which substantially differs from a written notice of the District's decision describing intended action, persons who may be substantially affected shall have
21 days, or for consolidated notice of intent under section 373.427, F.S., an additional 14 days, from the date of receipt of notice of said action to request an administrative hearing, but this request for administrative hearing shall only address the substantial deviation.
Finally, Section 120.569(2), Florida Statutes (2003), provides in part:
Unless otherwise provided by law, a petition or request for hearing shall include those items required by the uniform rules adopted pursuant to s. 120.54(5)(b)4.
Upon the receipt of a petition or request for hearing, the agency shall carefully review the petition to determine if it contains all of the required information. A petition shall be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed. Dismissal 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. The agency shall promptly give written notice to all parties of the action taken on the petition, shall state with particularity its reasons if the petition is not granted, and shall state the deadline for filing an amended petition if applicable.
The agency may refer a petition to the division for the assignment of an administrative law judge only if the petition is in substantial compliance with the requirements of paragraph (c).
The City argues that its Petition should be accepted as being timely for three reasons. First, it contends that the doctrine of equitable tolling applies under the facts presented here. Second, under Section 120.569(2)(c), Florida Statutes (2003), if an initial filing is found to be deficient, an agency is required to dismiss the petition before it is referred to DOAH. Brookwood Extended Care Center of Homestead, LLP v. Agency for Health Care Administration, 870 So. 2d 834 (Fla. 3d DCA 2003). Because the District failed to dismiss the Petition during its preliminary review, the City argues that the District is now estopped from asserting that the filing is untimely.
(This contention has been previously rejected. See Order dated July 26, 2004. The City later filed a Motion for Reconsideration of that Order which, although not authorized by the Uniform Rules of Procedure, still remains pending. The Motion for Reconsideration is hereby denied.) Finally, the City argues that the letters filed by Mr. Lemke and Mr. Witt on February 4 and 5, 2004, respectively, constituted requests for an extension of time to request a hearing under Florida Administrative Code Rule 28-106.111(3). These issues will be dealt with separately below.
In order for the doctrine of equitable tolling to apply, the City must show that it "was misled or lulled into inaction, that [it] was in some extraordinary way prevented from asserting [its] rights, or that [it] mistakenly asserted [its] rights in the wrong forum." Machules v. Dept. of Admin., 523 So. 2d 1132, 1134 (Fla. 1988). The latter two circumstances are not relied upon by the City.
The City argues that based on Mr. Jenkins' statements to City representatives on two occasions (October 3, 2003, and April 20, 2004), it was misled or lulled into inaction. That is, Mr. Jenkins' alleged statements led the City to believe that it could file a request for a hearing after the Governing Board voted on its application.
As previously found, the more credible evidence supports a conclusion that Mr. Jenkins did not make any representations that misled the City or lulled it into failing to file a request for a hearing. Further, at no point in the process, until at least March or more likely April 2004, did City representatives seek legal advice from their own counsel regarding their legal rights in this proceeding. If any misunderstanding or false impressions arose, it was wholly due to inattention or mistakes on the part of the City and not through representations by the District. Where a party's inaction is due to its own inattention or mistake, the doctrine of equitable tolling does not apply. See, e.g., Jancyn Manufacturing Corp. v. State, Dep't of Health, 742 So. 2d 473 (Fla. 1st DCA 1999); Patz v. Dep't of Health, 864 So. 2d 79 (Fla. 3d DCA 2003). Therefore, under the facts of this case, the doctrine of equitable tolling does not apply.
The City next contends that the District is now estopped from seeking dismissal of its Petition because it failed to comply with the requirements of Section 120.569(2)(c), Florida Statutes (2003). That statute provides that before a petition may be forwarded by an agency to DOAH, the agency "shall carefully review the [initial] petition to determine if it contains all of the required information," and "if it is not in substantial compliance, or has been untimely filed," the
agency shall dismiss the petition. The statute goes on to provide that an agency shall refer a petition to DOAH "only if the petition is in substantial compliance with the [above] requirements."
The Petition filed on May 21, 2004, makes no mention of the first point of entry offered on January 30, 2004, nor does it indicate whether the City even received a copy of that notice. Instead, it alleges that the Petition was filed in response to the (erroneously issued) second point of entry received on April 30, 2004. On its face, then, the Petition appears to be timely and in substantial compliance since it was filed on the twenty-first day after the City alleges it received notice of the District's intended decision on April 30, 2004. Under these circumstances, it was not improper for the District to refer the Petition to DOAH, rather than assuming at that time, without a proper record basis, that the City had actually received the first Notice of Rights and had waived its point of entry. Even assuming arguendo that the District should have made a preliminary determination that the Petition was untimely, the City has cited no authority for the proposition that once a case is referred to DOAH an agency can no longer assert that a petition is deficient. Therefore, the undersigned concludes that Section 120.569(2)(c), Florida Statutes (2003), does not bar the District from filing its Renewed Motion. In so ruling,
the undersigned notes that Brookwood, supra, simply confirms what the statute says: that before a petition is forwarded to DOAH, an agency must determine whether it is in substantial compliance with the requirements of Section 120.569(2)(c), Florida Statutes, or has been timely filed. It does not address the issue of estoppel.
The City also contends that the letters filed by Mr. Lemke and Mr. Witt on February 4 and 5, 2004, constituted
requests for extension of time to file a petition for a hearing under Florida Administrative Code Rule 28.106.111(3). (By making this argument, the City implicitly concedes that it was not misled into believing that a petition for a hearing did not have to be filed until after the Governing Board had voted on its application; otherwise, it would not have filed papers allegedly requesting an extension of time to request a hearing.)
As previously found, a fair construction of the two letters is that they were filed for the purpose of requesting a delay in consideration of the application by the Governing Board until the staff had time to consider two reports prepared by its outside consultants, and not to request an extension of time to file a petition under Florida Administrative Code Rule 28- 106.111(3). Therefore, the District correctly assumed that the City was simply asking that its application be taken up at a later meeting of the Governing Board.
Finally, because it was issued in error, the second Notice of Rights does not provide the City an additional point of entry to challenge the permit conditions. See Wieler v. Horse's Head, LTD, et al. and Town of Indian River Shores v. Horse's Head, LTD, et al., Case Nos. 99-1179 and 99-1180, 1999 WL 1486533 at *7 (DOAH June 7, 1999, SJRWMD July 15, 1999)(a clerical error does not provide a point of entry). Even assuming arguendo that the April notice constituted a second point of entry, by failing to timely file a challenge after the January point of entry, the City would retain the right to challenge only those permit conditions that were changed so significantly from the January notice as to affect its substantial interests.
In summary, because the Petition was not timely filed, the District's Renewed Motion should be granted and the Petition dismissed, with prejudice. See Fla. Admin. Code R. 28- 106.111(4) and 40C-1.1007(2)(a). The final hearing now scheduled on December 7-10, 2004, is hereby cancelled.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the St. Johns River Water Management District enter a final order dismissing the City of Daytona Beach's Petition as being untimely.
DONE AND RECOMMENDED this 29th day of September, 2004, in Tallahassee, Leon County, Florida.
S
DONALD R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2004.
ENDNOTE
1/ On August 28, 2003, Mr. Lemke copied the City Attorney with a letter sent to the District's Executive Director thanking the Executive Director for "facilitating [a] meeting which was recently held." (City Exhibit 1) Other than that correspondence, however, there is no evidence that the City Attorney's Office was involved in, or even aware of, this matter until at least the spring of 2004.
COPIES FURNISHED:
Marcy I. LaHart, Esquire Marcy I. LaHart, P.A.
711 Talladega Street
West Palm Beach, Florida 33405-1443
Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197
Stuart, Florida 34995-1197
Janice M. McLean, Esquire
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
Kirby Green, Executive Director
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
NOTICE OF RIGHT TO FILE EXCEPTIONS
All parties have the right to submit written exceptions within
15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 27, 2004 | Other | |
| Sep. 29, 2004 | Recommended Order | Petitioner failed to timely file its petition for hearing and therefore waived its point of entry. Recommend that the petition be dismissed with prejudice. |
