STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SRQUS, LLC,

vs.

Petitioner,

Case No. 13-1219

SARASOTA COUNTY, TOWN OF LONGBOAT KEY, CITY OF SARASOTA, CITY OF VENICE, DEPARTMENT OF TRANSPORTATION DISTRICT 1, AND DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, an evidentiary hearing was held in this case on October 16, 2013, by video teleconference in Tallahassee, Florida and Sarasota, Florida, before E. Gary Early, the Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Achim Ginsberg-Klemmt, Managing Member

Erika Ginsberg-Klemmt, Managing Member 3364 Tanglewood Drive

Sarasota, Florida 34239

For Respondent Sarasota County:

Stephen E. DeMarsh, Esquire Alan W. Roddy, Esquire David M. Pearce, Esquire

Office of the County Attorney

1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236

For Respondent City of Sarasota:

Michael A. Connolly, Esquire Fournier, Connolly, Warren,

& Shamsey, P.A. Suite 700

1 South School Avenue Sarasota, Florida 34237

For Respondents City of Venice and Town of Longboat Key:

Kelly Fernandez, Esquire David Jackson, Esquire Persson & Cohen, P.A.

6853 Energy Court

Lakewood Ranch, Florida 34240 For Respondent Department of Transportation:

Kathleen Patricia Toolan, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

For Respondent Department of Environmental Protection:

W. Douglas Beason, Esquire Kristine Papin Morris, Esquire Office of General Counsel Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be determined by this Order is whether the Request for Administrative Hearing filed by Petitioner with the Department of Environmental Protection (“DEP”) on February 15, 2013, was timely1/ and, if not, whether the application of the doctrine of equitable tolling would serve to relieve Petitioner of the consequences of having failed to file a petition for hearing within the time allotted by applicable notice

provisions.

PRELIMINARY STATEMENT

This case arose upon the issuance by the DEP of a renewal of a Municipal Separate Storm Sewer System permit (the “MS4 Permit”) to Respondents Sarasota County, Town of Longboat Key, City of Sarasota, City of Venice, and the Department of Transportation District 1 (“Applicants”).

The notice of proposed agency action was published in the Sarasota Herald-Tribune, a newspaper of general circulation in Sarasota County, on January 30, 2013. Because the MS4 Permit area applied to the Town of Longboat Key, and because a portion of the Town of Longboat Key extends across the Sarasota County line into Manatee County, notice was also published in the Bradenton Herald, a newspaper of general circulation in Manatee County, on February 4, 2013.

On February 15, 2013, Petitioner filed its Request for Administrative Hearing (“Petition”) with the DEP. The DEP dismissed the Petition with leave to amend. Thereafter, on or about March 21, 2013, Petitioner filed an Amended Petition for FLS000004-004 (“Amended Petition”). On April 8, 2013, the Amended Petition was transmitted to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

On September 11, 2013, Sarasota County filed its Motion to Dismiss (“Motion”), arguing that the Request for Hearing was not timely filed, and that the facts of this case do not warrant the application of the doctrine of equitable tolling to excuse the untimely filing. Rule 28-106.204(2) provides, in pertinent part, that “motions to dismiss the petition or request for hearing shall be filed no later than 20 days after assignment of the presiding officer, unless the motion is based upon a lack of jurisdiction or incurable errors in the petition.” The failure to timely file a petition, if substantiated, constitutes an incurable error in the initial Request for Administrative Hearing. Thus, the Motion was timely.

On September 16, 2013, the undersigned entered an Order to Show Cause directing Petitioner to show cause as to why the Motion should not be granted, and allowing Respondents to file memoranda on the issue.

On September 23, 2013, Petitioner filed its Response to Sarasota County‟s Motion to Dismiss and Response to Order to Show Cause. In its response, Petitioner argued that the publication of notice in the Bradenton Herald created a new point of entry for Petitioner to challenge the MS4 Permit and, if the Petition is determined to be untimely filed, the doctrine of equitable tolling should be applied.

On September 23, 2013, the Department of Transportation (“DOT”) and the DEP filed separate memoranda in support of the Motion.

The Motion was noticed for an evidentiary hearing. See Pro Tech Monitoring, Inc. v. Dep't of Corr., 72 So. 3d 277, 281-282 (Fla. 1st DCA 2011); Hurley v. Dep't of Bus. & Prof'l Reg., 965 So. 2d 359 (Fla. 4th DCA 2007); Nicks v. Dep't of Bus. & Prof'l

Reg., 957 So. 2d 65, 68 (Fla. 5th DCA 2007). The hearing was held as scheduled on October 16, 2013, by video teleconference at sites in Tallahassee, Florida and Sarasota, Florida.

Sarasota County called as its witness Rene A. Janneman, the NPDES Coordinator for Sarasota County. Sarasota County‟s Exhibits 1-7 were received in evidence.

DEP Exhibit 1 was received in evidence. The DEP did not call any witnesses.

Petitioner called as its witness, Christopher Wright, a part-time consultant for Petitioner. In addition, Achim

Ginsberg-Klemmt and Erika Ginsberg-Klemmt, Petitioner‟s managing members, testified on Petitioner‟s behalf. Petitioner‟s Exhibits 1, 2, 4, and 5 were received in evidence.

At the conclusion of the evidentiary hearing, the parties were given the opportunity to submit proposed findings and orders in accordance with section 120.57(1)(b), Florida Statutes. Each party waived that right. A ruling on the Motion to Dismiss was thereupon announced from the bench, and is memorialized in this Recommended Order of Dismissal.

FINDINGS OF FACT

The Parties

1. Petitioner, SRQUS, LLC, is an active Florida, limited- liability corporation, and is the owner of submerged lands and adjacent upland property contiguous to Sarasota Bay. Petitioner is a closely held entity, the only members being Achim and Erika Ginsberg-Klemmt.

2. Respondent, Department of Environmental Protection, is an agency of the State of Florida having jurisdiction for permitting Municipal Separate Storm Sewer Systems (MS4), including duties as a federally-approved state program for the implementation of the Federal National Pollutant Discharge Elimination System (NPDES) Program, pursuant to authority conferred under section 403.0885, Florida Statutes.

   
   

3. Respondents, Sarasota County, City of Sarasota, City of Venice, Town of Longboat Key, and Department of Transportation (“DOT”) (collectively the “Applicants”) are responsible for certain existing stormwater point-source discharges to waters of the state from those portions of MS4 facilities owned or operated by one or more of the individual Applicants.

4. The DEP issued a notice of proposed agency action to issue a renewal of an existing MS4 Permit to the Applicants.

5. On January 30, 2013, Sarasota County arranged for the notice to be published in the Sarasota Herald-Tribune, which is a newspaper of general circulation in Sarasota County. The notice provided as follows:

   STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF INTENT TO ISSUE PERMIT AND REQUEST FOR ADMINISTRATIVE HEARING

   
   

   The Department of Environmental Protection gives notice of its intent to issue a permit to Sarasota County, 1660 Ringling Boulevard, Sarasota, Florida 34236 within its jurisdiction and including the following co- permittees: Florida Department of Transportation District One, Town of Longboat Key, City of North Port, City of Sarasota, and City of Venice, for renewal of a Municipal Separate Storm Sewer System [MS4] permit.

   Any person whose substantial interests are affected by the proposed permitting decision of the Department may petition for an administrative hearing in accordance with Sections 120.569 and 120.57 of the Florida Statutes (F.S.). The petition must contain the information set forth below and must be filed (received) in the Department of

   
   

   Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. Petitions must be filed within fourteen days of publication of this public notice or within fourteen days of receipt of the notice of intent, whichever occurs first. A petitioner must mail a copy of the petition to the applicant at the address indicated above, at the time of filing. The failure of any person to file a petition [or a request for mediation, as discussed below] within the appropriate time period shall constitute a waiver of that person‟s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-5.207 of the Florida Administrative Code. A petition must contain the following information:

   1. The name, address and telephone number of each petitioner, the Department Permit Number and the county in which the MS4 is located;

   2. A statement of how and when each petitioner received notice of the Department‟s action;

   3. A statement of how each petitioner‟s substantial interests are affected by the Department‟s action;

   4. A statement of the material facts disputed by the petitioner, if any;

   5. A statement of facts that the petitioner contends warrant reversal or modification of the Department‟s action;

   6. A statement of which rules or statutes the petitioner contends require reversal or modification of the Department‟s action; and

   7. A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take.

      
      

      Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the final action of the Department may be different from the position taken by it in the notice of intent. Persons whose substantial interests will be affected by any such final decision of the Department on the permit revision have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above.

      Mediation under Section 120.573, F.S. is not available for this proceeding.

      The permit application file and supporting data are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, NPDES Stormwater Section, 2600 Blair Stone Rd. Room 560, Tallahassee, Florida 32399-2400, phone number (850) 245-8430.

      Date of pub. January 30, 2013.

      
      

6. Because a portion of the Town of Longboat Key extends into Manatee County, the Town of Longboat Key arranged for the notice to be published in the Bradenton Herald, which is a newspaper of general circulation in Manatee County. The notice was published on February 4, 2013. The substance of the notice, except for the date of publication, was identical to that published in the Sarasota Herald-Tribune.

7. Neither Petitioner, nor its representatives, saw either of the published notices prior to the filing of the Petition.

8. On or about February 8, 2012, as a result of the filing of a pre-hearing stipulation in related litigation involving an

   
   

   Environmental Resource Permit (“ERP”) issued by the Southwest Florida Water Management District (“SWFWMD”), Petitioner became aware of the existence of the MS4 Permit. Erika Ginsberg-Klemmt obtained a copy of the permit online, and on February 12, 2013, sent an e-mail to employees of the DEP Ft. Myers‟ office expressing her general concern with water quality from the disputed stormwater outfall. She expressed her belief that Sarasota County was in violation of the existing MS4 permit, and requested that the recipients of her e-mail “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in the past.” The e-mail did not request any information regarding the MS4 Permit renewal application, nor did it request any information regarding notices or deadlines related to the application.

9. On February 13, 2013, Christopher Wright, a consultant for Petitioner, called the DEP to gather information and do some “legwork” related to Petitioner‟s challenge to the SWFWMD‟s ERP. The purpose of the call was to determine if information submitted to the DEP in conjunction with the MS4 application, particularly drainage basin maps, could have been of use in the SWFWMD litigation.

10. Mr. Wright spoke with DEP employee, Heather Ritchie, regarding the drainage basin maps that had been submitted to the

    
    

    DEP. During the course of their discussion, Ms. Ritchie advised Mr. Wright that a Notice of Intent to issue the MS4 Permit had been issued by the DEP. However, Ms. Ritchie did not know when Sarasota County had published the notice or when the deadline for challenging the proposed agency action was to run. In short, Ms. Ritchie expressed to Mr. Wright that “she didn‟t know what the status of things were.” The discussion then went back to the primary substance of the call, which was watersheds and discharge points. Ms. Ritchie agreed to provide Mr. Wright with an electronic copy of a drainage map from the MS4 Permit file.

11. At 12:43 p.m., on February 13, 2013, Ms. Ritchie sent a map to Mr. Wright via e-mail, and indicated that “[i]f you have additional questions or comments, you may call or e-mail me.”

12. Later on the afternoon of February 13, 2013,

    
    

    Mr. Wright decided that he should ask Ms. Ritchie for a copy of the Notice of Intent.

13. At 5:59 p.m., on February 13, 2013, after the close of business for the day, Mr. Wright wrote to Ms. Ritchie thanking her for her “rapid response to my inquiry today,” and providing her with comments on various basin areas and discharge structures. Mr. Wright concluded his e-mail by stating that “at this time I would also like to request a copy of the Notice of Intent to Issue the MS4 Permit.”

    
    

14. The next morning, February 14, 2013, Ms. Ritchie provided Mr. Wright with the Notice of Intent to Issue the MS4 Permit as requested. Later that morning, Mr. Wright inquired as to the time for filing a challenge to the permit. Ms. Ritchie replied at 2:34 p.m. that afternoon that the MS4 Permit “was publicly noticed by the county on January 30th with a 14 day window. The window closed yesterday.” There is no evidence that Ms. Ritchie had any specific information as to the date of publication or the deadline for filing a challenge prior to that communication with Mr. Wright.

15. Petitioner filed the Petition on February 15, 2013.

    
    

    The disputes identified in the Petition were directed exclusively at a 46-acre drainage basin in downtown Sarasota, and a related discharge structure that discharges stormwater from the basin to Sarasota Bay just south of the intersection of

    U.S. Highway 41 and Fruitville Road. The disputed basin and discharge point are located in Sarasota County.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

    
    

    Burden of Proof

    
    

17. It is well established that “[a]n agency seeking to establish waiver based on the passage of time following action claimed as final must show that the party affected by such action has received sufficient notice to commence the running of the time period within which review must be sought.” Henry v. Dep‟t of Admin., 431 So. 2d 677, 680 (Fla. 1st DCA 1983); see

    also Bryant v. Dep‟t of HRS, 680 So. 2d 1144 (Fla. 3rd DCA 1996); Symons v. Dep‟t of Banking and Fin., 490 So. 2d 1322, 1323 (Fla. 1st DCA 1986).

18. The notice published on January 30, 2013, in the Sarasota Herald-Tribune was sufficient to place a substantially affected person in Sarasota County on notice of the DEP‟s proposed agency action on the MS4 Permit, and of their rights to challenge the issuance of the MS4 Permit.

19. Petitioner has the burden of proving that the Petition was timely filed since its timeliness has been challenged by Sarasota County. Conservation Alliance of St. Lucie Co., Inc. v. Ft. Pierce Util. Auth., Case No. 09-1588 (Fla. DOAH May 24, 2013; Potter v. Dep't of Envtl. Prot., Case No. 10-9417 (Fla. DOAH Oct. 14, 2011; Fla. DEP Jan. 4, 2012); Hasselback v. Dep't

    of Envtl. Prot., Case No. 07-5216 (Fla. DOAH Jan. 28, 2010; Fla. DEP Mar. 12, 2010), rev. on other grounds, Hasselback v. Dep't

    of Envtl. Prot., 54 So. 3d 637 (Fla. 1st DCA 2011).

    
    

20. Petitioner has the burden of proving by a preponderance of evidence that the doctrine of equitable tolling applies to allow it to file a petition more than 14 days from the publication of the notice of proposed agency action. Conservation Alliance of St. Lucie Co., Inc. v. Ft. Pierce Util.

    Auth., Case No. 09-1588 (Fla. DOAH May 24, 2013; Fla. DEP

    
    

    July 9, 2013); Steadman v. Dep‟t of Mgmt. Servs., Case No. 10- 8928 (Fla. DOAH Jan. 26, 2011; Fla. DMS Apr. 12, 2011); see also

    Dept. of Envtl. Reg. v. Puckett Oil Co., 577 So. 2d 988 (Fla. 1st DCA 1991) (late filing presumed to be a waiver of rights, but may be rebutted at an evidentiary hearing).

    Timeliness of the Petition

    
    

21. Section 120.569(1) provides, in pertinent part, that:

    
    

    Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section,

    s. 120.57, or s. 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.

    
    

22. As to the sufficiency of the notice to persons affected by agency action to establish a "clear point of entry" to challenge that action:

    an agency's rules must clearly signal when the agency's free-form decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings . . . . In other words, an agency must grant affected parties a clear point of entry, within a specified

    
    

    time after some recognizable intended agency action to formal or informal administrative proceedings.

    
    

    Capeletti Bros. v. Dep‟t of Transp., 362 So. 2d 346, 348 (Fla. 1st DCA 1978).

23. Section 120.569(2)(c) provides, in pertinent part, that “[a] petition shall be dismissed if it . . . has been untimely filed.”

24. Section 403.815 provides, in pertinent part, that:

    
    

    Within 14 days after publication of notice of proposed agency action, any person whose substantial interests are affected may request a hearing in accordance with ss.

    120.569 and 120.57. The failure to request a hearing within 14 days after publication of notice of proposed agency action constitutes a waiver of any right to a hearing on the application under ss. 120.569 and 120.57.

    
    

25. The DEP has adopted Florida Administrative Code Rule 62-110.106(2), which provides, in pertinent part, as follows:

    “Receipt of Notice of Agency Action” Defined. As an exception to subsection 28- 106.111(2), F.A.C., for the purpose of determining the time for filing a petition for hearing on any actual or proposed action of the Department as set forth below in this rule, “receipt of notice of agency action” means either receipt of written notice or publication of the notice in a newspaper of general circulation in the county or counties in which the activity is to take place, whichever first occurs. . . .

    
    

26. As to the time frame within which a challenge to a permit issued under Chapter 403 -- which would include a MS4

    
    

    permit -- may by filed, the DEP has adopted Florida Administrative Code Rule 62-110.106(3), which provides, in pertinent part, that:

    (3) Time for Filing Petition.

    
    

    (a) A petition shall be in the form required by Rule 28-106.201 or 28-106.301, F.A.C., and must be filed (received) in the office of General Counsel of the Department within the following number of days after receipt of notice of agency action, as defined in subsection (2) of this rule above:

    
    

    1. Petitions concerning Department action or proposed action on applications for permits under Chapter 403, Florida Statutes

    . . . : fourteen days;. . .

    
    

27. Petitioner‟s interests are affected solely by virtue of actions arising in Sarasota County and affecting their property in Sarasota County. Thus, Petitioner received a clear point of entry by reason of the January 30, 2013, publication in the Sarasota Herald. That first published notice started the clock, and established the relevant time period within which the time for challenging the MS4 Permit was to be calculated. Cf. Labelle v. Bio-Med Servs., 598 So. 2d 207 (Fla. 2d DCA 1992) (“The rule provides for reasonable notice within the meaning of section 120.57(1)(b)2., and the „whichever comes first‟ provision of the rule governing the beginning of the fourteen- day period for the filing of a petition seeking a hearing serves a meaningful purpose.”).

    
    

28. Petitioner did not see the notice published by the Town of Longboat Key in the Bradenton Herald, and was not misled by that notice.2/ Petitioner‟s substantial interests were not affected by any activities authorized by the MS4 Permit that were to occur in Manatee County.

29. It is the opinion of the undersigned that, for permits that apply in multiple counties, the publication of notice in a newspaper serving an adjoining county does not serve to extend a point of entry that has been created through the publication in a newspaper of general circulation in the county in which the activity that is the subject of the dispute is to take place.3/

30. The Petition was filed with the DEP on February 15, 2013, 16 days after the publication of notice in the Sarasota Herald-Tribune. Thus, the Petition was not timely filed.

    Equitable Tolling

    
    

31. Dismissal of an untimely request for hearing is mandatory, unless facts exist to support the application of the doctrine of equitable tolling. § 120.569(2)(c), Fla. Stat.; Fla. Admin. Code R. 28-106.111(4); Machules v. Dep‟t of Admin.,

    523 So. 2d 1132 (Fla. 1988); Riverwood Nursing Ctr., LLC v. Ag.

    
    

    for Health Care Admin., 58 So. 3d 907 (Fla. 1st DCA 2011); Cann v. Dep‟t. of Child. & Fam. Servs., 813 So. 2d 237 (Fla. 2d DCA 2000).

    
    

32. Equitable tolling may be applicable “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 at 1134.

33. The evidence in this case does not demonstrate that Petitioner was misled or lulled into inaction as a result of any act or omission of the DEP.

34. Petitioner relies on the discussions and correspondence that took place between Mr. Wright and

    Ms. Ritchie on February 13 and February 14, 2013, as evidence that it was misled or lulled into inaction. However, the evidence demonstrates that Mr. Wright‟s interactions with

    Ms. Ritchie on February 13, 2013, were focused on obtaining copies of basin maps. Furthermore, Mr. Wright understood that, although Ms. Ritchie knew that a Notice of Intent had been issued, she did not know the status of the notice. The evidence demonstrates that Ms. Ritchie did not provide Mr. Wright with any information that was inaccurate or incorrect, nor did

    Ms. Ritchie give Mr. Wright information that would have lulled him into believing that some action was unnecessary.

35. Petitioner argues that Ms. Ritchie should have known of Petitioner‟s interest in the 46-acre drainage basin and discharge structure, and thus should have provided information

    
    

    regarding the published notice to Mr. Wright, despite the lack of any specific request, and despite her lack of any specific knowledge.

36. The doctrine of equitable tolling places no affirmative obligation on the part of an agency employee to discern the intent behind a request for information, or to provide documents in the absence of a request. In this case, Ms. Ritchie provided a copy of the Notice of Intent almost immediately upon receipt of the request. The fact that

    Mr. Wright did not request the notice until after the time for challenging the MS4 Permit had passed does not constitute a misleading act on the part of Ms. Ritchie, nor does it constitute an act that could be construed in any way as lulling Petitioner into inaction.

37. Petitioner further asserts that the February 12, 2013, e-mail from Erika Ginsberg-Klemmt to employees of the DEP

    Ft. Myers‟ office should be accepted as the timely filing of a petition in the wrong forum. As indicated in the findings of fact herein, the e-mail expressed general concern with water quality from the disputed stormwater outfall, and suggested that Sarasota County was violating the existing MS4 permit. Despite the request that the recipients “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in

    
    

    the past,” the e-mail did not, in any way, request a hearing or suggest that it was intended to initiate a proceeding regarding the MS4 Permit renewal. Thus, the e-mail does not constitute the timely assertion of Petitioner‟s rights mistakenly in the wrong forum, or otherwise form a basis for the application of equitable tolling.

38. Finally, the facts alleged by Petitioner are not so extraordinary as to have prevented Petitioner from asserting its rights. Rather, this case is little more than the not uncommon instance of a person failing to monitor public notices and failing to ask the agency for copies of any notices in a timely manner.

39. The facts set forth by Petitioner are not sufficient basis to apply the doctrine of equitable tolling. As stated by the Third District Court of Appeal:

    [Petitioner] has not demonstrated that he was in any way prevented from timely requesting a hearing within the twenty-one- day period. He has merely alleged that he mistakenly failed to do so.

    
    

    Such a mistake, even if it rises to the level of excusable neglect, does not provide [Petitioner] with an escape from the consequences of his late-filed petition.

    Aleong v. State, Dep't of Bus. & Prof'l Regulation, 963 So. 2d 799, 801 (Fla. 4th DCA 2007). In closing, we quote the following language from this Court:

    
    

    We, like the Second District before us, recognize that denying a late request

    
    

    for an administrative hearing could be, and perhaps should be, compared to entry of a default in a judicial proceeding, and that the administrative rules should encourage the setting aside of defaults to permit claims to be heard on their merits rather than decided on procedural technicalities.

    Cann v. Dep't of Children & Family Servs., 813 So. 2d 237, 239 (Fla. 2d DCA 2002). However "the legislature or the relevant agencies are the decision- makers to which these policy arguments must be directed. In the context of administrative law, the courts cannot override a filing rule that does not violate due process." [Id.] at 240.

    The final order is, therefore, affirmed. (Emphasis in original)

    
    

    Gonzalez v. Fla. Dep't of Fin. Servs., 60 So. 3d 469 (Fla. 3d DCA 2011) (citing Patz v. Dep't of Health, 864 So. 2d 79, 82 (Fla. 3d DCA 2003)); see also Nicks v. Dep't of Bus. & Prof'l Reg., 957 So. 2d 65, 68 (Fla. 5th DCA 2007)(“equitable tolling would be available to extend the 21-day deadline if [Petitioner] can establish reasonable reliance upon a clear and affirmative representation to him that his previous submission preserved his right to contest factual allegations in the Department's complaint.”); Jancyn Mfg. Corp. v. Dep‟t of Health, 742 So. 2d 473, 476 (Fla. 1st DCA 1999)(“ the record reveals that the failure to seek yet another extension or to file for a chapter

    120 proceeding was the result of appellant's own inattention, and not the result of a mistake or agency misrepresentation.”)

    
    

40. In conclusion, Petitioner‟s request for hearing must be dismissed because it was filed with the DEP more than 14 days after the publication of a valid and compliant notice in the Sarasota Herald-Tribune, and because Petitioner failed to prove the elements necessary to support the application of equitable tolling in this case.

41. The untimeliness of Petitioner‟s request for hearing cannot be cured and, therefore, the opportunity to amend the request for hearing is neither necessary nor appropriate.

    See § 120.569(2)(c), Fla. Stat. (“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.”).

42. As a result of the entry of this Recommended Order of Dismissal, the final hearing scheduled for October 22-23, 2013, is cancelled, and all witnesses are relieved of compliance with any subpoenas previously issued.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent, Department of Environmental Protection, issue a final order dismissing Petitioner‟s Request

for Hearing and Amended Petition for FLS000004-004 on the ground that the Petition was not timely filed.

DONE AND ENTERED this 18th day of October, 2013, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2013.

ENDNOTES

1/ The February 15, 2013, Petition was dismissed by the DEP, with leave to amend. The Petition was timely amended and re- filed, and was thence forwarded to the Division of Administrative Hearings. The date of the Amended Petition relates back to the date of filing of the original Petition. See Terwilliger v. South Fla. Water Mngmt. Dist. and Fla. Power and Light Co., Case No. 01-1504, ¶122 (Fla. DOAH Feb. 27, 2002; SFWMD Apr. 16, 2002). Thus, the February 15, 2013, date of filing of the Petition is the date by which all analysis of the timeliness of the Petition is measured.

2/ Had Petitioner seen the Manatee County newspaper notice, and been misled by that notice, such would likely warrant the application of equitable tolling. It would not, in the view of the undersigned, create a new point of entry superseding the notice published by Sarasota County in the Sarasota Herald- Tribune.

3/ The undersigned has researched the issue of the creation of point(s) of entry by notices published in multiple jurisdictions

by different co-applicants, for permits that extend across political or jurisdictional boundaries, and has found no authority directly addressing the issue. Thus, this appears to be a case of first impression.

COPIES FURNISHED:

W. Douglas Beason, Esquire

Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Achim Ginsberg-Klemmt SRQUS, LLC

3364 Tanglewood Drive

Sarasota, Florida 34239

Alan W. Roddy, Esquire

Office of the County Attorney 2nd Floor

1660 Ringling Boulevard

Sarasota, Florida 34236

Kelly M. Fernandez, Esquire Persson & Cohen, P.A.

6853 Energy Court

Lakewood Ranch, Florida 34240

Michael A. Connolly, Esquire Fournier, Connolly, Warren,

and Shamsey Suite 700

1 South School Avenue Sarasota, Florida 34237

Kathleen Patricia Toolan, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Kristine Papin Morris, Esquire Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Matthew Z. Leopold, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 13-001219

Orders for Case No: 13-001219