STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEL AND DIANE BRYANT and )

BRENT MAHIEU, )

)

Petitioners, )

)

vs. ) Case No. 07-4611

) CITY OF PORT ST. LUCIE and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

This matter came before the undersigned on Respondent City of Port St. Lucie's (City's) Motion to Dismiss with Incorporated Memorandum of Law (Motion) filed on October 26, 2007. A Notice of Filing Case Law in Support of its Motion to Dismiss was also filed by the City on November 7, 2007. By its Motion, the City seeks to dismiss Petitioners' Amended Petition on the ground it was untimely filed. It further argues that under the circumstances presented here, the doctrine of equitable tolling, upon which Petitioners rely, does not apply. (The doctrine of equitable tolling may be used as a defense to the untimely filing of a petition. See § 120.569(2)(c), Fla. Stat. (2006).) A Response in opposition to the Motion was filed by Petitioners on November 1, 2007. Respondent, Department of Environmental Protection (Department), has not stated its position on the Motion. However, in its Order Dismissing Petition with Leave to Amend (Order) dated September 14, 2007, the Department dismissed the initial Petition without prejudice to Petitioners' "filing an amended petition which shows why the Petition dismissed in this order should be considered timely." The basis for the dismissal was that "the City published notice [on July 6, 2007] in the Palm Beach Post, charging Petitioners with constructive notice . . . , and establishing a deadline [July 20, 2007)] for a Petition to be filed." Because the initial Petition was not filed until July 27, 2007, or seven days after the deadline, it was deemed to be untimely. For the reasons stated below, the Motion should be granted and the Amended Petition dismissed,

with prejudice, on the ground the initial Petition was untimely filed.

This case involves the proposed issuance by the Department of two construction permits to the City, which generally authorize the modification and expansion of the capacity of the City's Westport Wastewater Treatment Plant from 3.93 million gallons per day (mgd) to 6.24 mgd. (Each permit provides an option for the City to expand its facility; the City may choose either option.) Petitioners, who live near the plant, oppose the expansion because of "odor emanating from the plant" in violation of Florida Administrative Code Rule 62-600.400(2)(a).

The Order, Amended Petition, Motion, Response, and attachments thereto reflect the following undisputed material facts. On April 11, 2007, Petitioners met with certain City officials, including the City Manager, who advised them that "all permits for the expansion of the plant from its current capacity of 3.93 mgd to the planned capacity of 6.24 mgd had been approved and obtained and that the only permit still required to be obtained was the operational permit which would be obtained after construction was completed"; and "that there was nothing that [Petitioners] could do to stop the expansion of the plant to 6.24 mgd." Affidavits in support of this allegation are attached to the Amended Petition. The City denies these statements were made, but for purposes of its Motion, has accepted this allegation as being true. On June 26, 2007, the Department issued its Notice of Intent to Issue Permit (Notice). Although they had the right to do so, Petitioners did not request that they receive separate written notice from the Department when action on the City's applications was taken. On July 6, 2007, the City published a copy of the Notice in the Palm Beach Post, St. Lucie Edition. The Notice provided, inter alia, that petitions challenging the issuance of the permits must be filed within fourteen days from the date of the publication, or by July 20, 2007; otherwise, a point of entry would be waived. See Fla. Admin. Code R. 62-110.106(2).

Pursuant to a public records request, on July 13, 2007, Petitioners and their counsel met with City representatives to review certain City files relating to the facility in question. Among the documents reviewed was a copy of the Department's Notice dated June 26, 2007. On July 27, 2007, or fourteen days later and seven days past the deadline in the published Notice, Petitioners filed their initial Petition. An Amended Petition was later filed on September 28, 2007, in response to the Department's Order dismissing the initial pleading. The matter was referred to the Division of Administrative Hearings on

October 8, 2007. The Motion was filed on October 26, 2007, and Petitioners' Response thereto on November 1, 2007.

Petitioners acknowledge that their initial Petition was not filed within fourteen days after the date of publication of the Notice. They contend, however, that they were misled and lulled into inaction by the statements made to them by the City Manager on April 11, 2007. Without specifically saying so in their Amended Petition and Response, Petitioners apparently contend that the City Manager misled them by indicating that a construction permit had already been issued in April 2007 when in fact the City's applications were still pending before the Department. They further contend that the statements made by the City Manager create sufficient circumstances to invoke the doctrine of equitable tolling, thereby excusing their untimely filing. Therefore, they argue that the filing of a petition on July 27, 2007, or fourteen days after they received actual notice, was timely.

The doctrine of equitable tolling will be applied "when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum." Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). Virtually every reported administrative decision involving this doctrine, and particularly those where affected persons have relied on the first circumstance, has arisen out of a claim that the agency, as opposed to another party in the case, has misled or lulled the affected person into not filing a request for a hearing in a timely fashion. In this case, there is no assertion that the Department engaged in this type of conduct; rather, Petitioners assert that the permit applicant (the City) made the misleading statements. Without deciding the issue, for purposes of resolving the Motion, the undersigned has assumed that, if appropriate circumstances are present, the doctrine can still be invoked under this unusual scenario. (In their filings, the parties have not addressed this issue.)

When there are disputed facts concerning the applicability of the doctrine, an evidentiary hearing on that narrow issue is required. See, e.g., Brown v. Department of Financial Services, 899 So. 2d 1296 (Fla. 4th DCA 2005). Because the parties have raised no disputed issues of material fact that require resolution, the matter can be resolved based on the parties' filings. (As noted above, although the City denies that the statements were made by the City Manager, for purposes of its Motion, it accepts them as being true.)

Assuming that the City Manager made the alleged statements, they occurred almost three months before the Department actually proposed to issue a permit and a notice was published by the City in a local newspaper. Significantly, the statements did not prevent Petitioners (or their counsel) from receiving constructive notice of the agency's action through the publication of the Notice on July 7, 2007. ("Receipt of notice of agency action" means "publication of the notice in a newspaper of general circulation in the county . . . in which the activity will take place." Fla. Admin. Code R. 62- 110.106(2).) Nor did it bar them from contacting the Department to request an enlargement of time to file a petition after they received actual notice of the issuance of the permit on July 13, 2007. Fla. Admin. Code R. 62-110.106(4). Indeed, except for the unilateral filing of the initial Petition on July 27, 2007, nothing in the parties' filings indicate that Petitioners ever contacted the Department for any advice regarding the pending applications or when a petition should be filed. Given these undisputed facts, none of the three circumstances described in Machules exist, and as a matter of law, the doctrine of equitable tolling does not apply. Because Petitioners received constructive notice of the Department's action on July 7, 2007, and were required to file their petition within fourteen days thereafter, or by July 21, 2007, the initial Petition was untimely filed. Fla. Admin. Code R. 62-110.106(3)(b).

Therefore, the City's Motion to Dismiss should be granted and the Amended Petition dismissed. Because Petitioners have been given one opportunity to amend their pleadings as to this issue, the dismissal should be with prejudice.

In both their Response and Amended Petition, Petitioners point out that the City's notice was published in a newspaper (Palm Beach Post, Port St. Lucie Edition) having a smaller circulation than the local newspaper (Port St. Lucie News).

They also point out that the City chose to publish only the Department's Notice in the Palm Beach Post, while it published numerous other City notices during that same time period in the Port St. Lucie News, which has a much wider circulation in the City. While Section 403.815, Florida Statutes (2006), requires that such notices be published in a newspaper of general circulation, there is no assertion here that the Palm Beach Post, St. Lucie Edition is not a newspaper of general circulation as defined by Sections 50.011 and 50.031, Florida Statutes (2006). Therefore, while somewhat unusual, the fact that the City chose to use one newspaper of general circulation for one notice, and another newspaper of general circulation for a number of other notices, does not render the notice here

insufficient or raise a factual issue requiring an evidentiary hearing. See, e.g., Thomas v. Department of Environmental Protection et al., Case No. 94-2800 (DOAH May 4, 1995, DEP June 16, 1995) 1995 Fla. ENV LEXIS 50 at *27 (there is no obligation on the permittee to determine the "best" publication for its notice).

Finally, Petitioners' only concern in challenging the permit is a contention that since it began operations several years ago, the existing plant has been emanating odors in violation of Florida Administrative Code Rule 62-600.400(2)(a), and that issuance of the new permit will only compound the existing problem. (For example, the last sentence of their Amended Petition requests that besides denying the applications "the Department enforce compliance with [the rule].") For the benefit of Petitioners, they are reminded that requests for enforcement action (such as requiring a licensee to comply with a rule) must be directed to the Department through a separate filing, rather than raised as an issue in a licensing case.

See, e.g., Associated Home Health Agency, Inc. v. State Department of Health and Rehabilitative Services et al., 453 So. 2d 104, 106 (Fla. 1st DCA 1984). The dismissal of their Amended Petition does not bar such a filing.

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Environmental Protection enter a final order granting the City's Motion to Dismiss and dismissing, with prejudice, the Petitioners' Amended Petition on the ground it was untimely filed.

DONE AND RECOMMENDED this 20th day of November, 2007, 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 20th day of November, 2007.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Mel and Diane Bryant

356 Southwest Panther Trace

Port St. Lucie, Florida 34953-8201

Brent Mahieu

352 Southwest Panther Trace

Port St. Lucie, Florida 34953-8201

Theresa J. Fontana, Esquire Assistant City Attorney

121 Southwest Port St. Lucie Boulevard Port St. Lucie, Florida 34984-5042

Ronald W. Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order of Dismissal. Any exceptions to this Recommended Order of Dismissal should be filed with the agency that will render a final order in this matter.

Docket for Case No: 07-004611

Orders for Case No: 07-004611