STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEGAL ENVIRONMENTAL ) ASSISTANCE FOUNDATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3238

)

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, and PINELLAS COUNTY, )

)

Respondents. )

)

)

LEGAL ENVIRONMENTAL ) ASSISTANCE FOUNDATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3239

)

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, and PINELLAS COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

These cases were consolidated and scheduled for final hearing before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings, on November 18-22, 1996, in Largo, Florida. But they also were called up for three separate motion hearings conducted in Tallahassee, Florida, on three rounds of motions in opposition filed by Pinellas County and, on the third round, joined by the DEP. As a result of the rulings on these motions in opposition, final hearing is cancelled, and it is recommended that these cases be dismissed with prejudice.

FIRST TWO ROUNDS OF PETITIONS AND MOTIONS IN OPPOSITION

1. When these cases were referred to the Division of Administrative Hearings (DOAH), Pinellas County's Motion in Opposition to Petition for Formal Hearing filed in each of the cases also were referred. A hearing on the motions in opposition was scheduled on September 3, 1996.

   
   

2. Neither of the other parties responded in writing to the motions in opposition, but on August 27, 1996, the Petitioner (LEAF) filed in each case a Motion for Leave to Amend Initial Pleading (with copy of proposed amended petition) intended "to address some of the issues raised by Respondent Pinellas County's Motion in Opposition."

3. Pinellas County was not prepared to address LEAF's new filings by September 3, and the parties chose to proceed with the motion hearing on September 3 and obtain a ruling on the motions in opposition directed to the initial petitions notwithstanding LEAF's subsequent filings. Pinellas County was given until September 17, 1996, in which to file written responses to LEAF's Motion for Leave to Amend Initial Pleading filed in each of these cases.

   
   

4. Subsequently, the County requested that the ruling on the motions in opposition directed to the initial petitions be deferred until after the County's filings and LEAF's responses to them. As a result, LEAF's Motion for Leave to Amend Initial Pleading filed in each of these cases essentially were treated as having been granted.

   
   

5. The County's motions in opposition to the amended petitions were filed on September 17, 1996, and another hearing was scheduled for October 3, 1996, on all of the pending motions.

   
   

   RULING ON FIRST TWO ROUNDS OF MOTIONS IN OPPOSITION

   
   

6. The first two rounds of motions in opposition raised essentially two issues: the timeliness of the initial petitions; and LEAF's standing.

   
   

   Timeliness

   
   

7. The facts were clear that legal notice of DEP's notices of intent to issue Pinellas County's deep well injection operation permits and related consent orders was given by publication in a newspaper of general circulation on May 13, 1996, and allowed 21 days (until June 3, 1996) for the filing of petitions for administrative proceedings. LEAF alleged that it received actual notice on May 30, 1996.

   
   

8. On June 3, 1996, LEAF faxed to the office of DEP's Secretary requests for 30-day extensions of time in which file petitions for administrative proceedings. The requests asserted that they were authorized by F.A.C. Rule 62-

   103.070 and warranted because LEAF did not receive written notice of certain preliminary proceedings as required under F.A.C. Rule 62-528.315. No copy of either request was served on Pinellas County.

   
   

9. On June 20, 1996, DEP entered an Order Granting Request for Extension of Time to File Petition for Hearing until June 24, 1996, as to each case. No copy of either order was served on Pinellas County. LEAF's initial amended petitions were filed on June 24, 1996.

   
   

10. Pinellas County's motions in opposition argued that dismissal is required because: (1) under Section 403.815, Fla. Stat. (1995), there is no authority for DEP to extend the time to file a petition for administrative proceedings; (2) F.A.C. Rule 62-103.070, authorizing requests for extensions of time in which to file petitions for administrative proceedings, was repealed on December 31, 1995, eliminating any authority there might have been for granting the requests for extensions of time; and (3) equitable tolling should not apply under Section 403.815 and facts of this case.

    
    

    Section 403.815 provides in pertinent part:

    
    

    . . . Notwithstanding any provision of s. 120.60, the department may publish or by rule require the applicant to publish, or

    the applicant may elect to publish, in a newspaper of general circulation in the area affected, notice of proposed agency action on any permit application submitted under this chapter or chapter 253. The department shall require the applicant for a permit to

    construct or expand a solid waste facility to publish such notice. The notice of proposed agency action shall be published at least 14 days prior to final agency action. . . .

    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 s.

    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 s. 120.57.

    
    

    It is the County's position that no extensions of time for filing petitions for administrative proceedings are allowed under this statute.

    
    

11. It is true that this statute confers on an applicant a procedural benefit in return for the burden, if placed on the applicant as it was in this case, of publishing notice--i.e., "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 s. 120.57." But it does not necessarily follow that this statute precludes all possibility of an extension of time. Indeed, the published notice itself extended the 14-day deadline established in the statute for filing petitions to 21 days. (It was not clear why 21 days were given. Cf. F.A.C. Rules 62-528.315(10), 62-103.150(2), and 62-103.155(3)(a).)

    
    

12. The County also argued that, even if Section 403.815 does not completely preclude the possibility of extensions of time for filing petitions, the repeal of F.A.C. Rule 62-103.070 eliminated the authority for any further extension beyond the 21 days provided in the published notice of intent.

    
    

13. According to Vol. 21, No. 43, Fla. Admin. Weekly, p. 7460-7461, Oct. 27, 1995, this rule was repealed as part of the Governor's rules reduction initiative, Exec. Order 95-74, dated Feb. 27, 1995, after having been identified either as being "obsolete" or as being "procedural or organizational." (The other category of rules to be repealed under the initiative--rules that merely tracked statutory language--would not apply to Rule 62-103.070.) The rationale for repeal of Rule 62-103.070 does not reflect any intention to strengthen Section 403.815's waiver provision or to abrogate any discretionary authority the agency might have to extend procedural deadlines. To the contrary, the stated rationale would suggest a determination that no rule was necessary to authorize extensions of time. Cf. also Frank's Texaco v. Dept. of Environmental Reg., 590 So.2d 520 (Fla. 3d DCA 1991)(a request for extension of time to file a petition constitutes an "initial pleading" under F.A.C. Rule 17-103.050 [now 62- 103.050]).

    
    

14. Even given a statute like Section 403.815, the case law seems clear that the time for filing petitions for administrative proceedings is "not jurisdictional in the sense that failure to comply is an absolute bar to appeal

    but is more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling." Machules v. Dept. of Admin., 523 So.2d 1132, 1133, n. 2 (Fla. 1988). See also Abusalameh v. Dept. of Bus. Reg., 627 So.2d 560 (Fla. 4th DCA 1993); Castillo v. Dept. of Admin., Div. of Retirement, 593 So.2d 1116 (Fla. 2nd DCA 1992); Stewart v. Dept. of Corrections,

    561 So.2d 15 (Fla. 4th DCA 1990); General Motors Corp., etc., v. Gus Machado Buick-GMC, Inc., et al., 581 So.2d 637 (Fla. 1st DCA 1991); Robinson v. Fla. Unemployment Appeals Comm'n, 526 So.2d 198 (Fla. 4th DCA 1988); Rothblatt v. Dept. of Health, etc., 520 So.2d 644 (Fla. 4th DCA 1988). It follows logically that if the time to file petitions for administrative proceedings can be extended under the doctrine of equitable tolling, an agency also has the inherent authority to grant a reasonable extension of time, even without a rule like Rule 62-103.070. Cf. also Frank's Texaco, supra.

    
    

15. It was recognized that the time limitation in this case was established by statute, while those in the cases cited in the preceding paragraph were established by agency rule. However, the Machules case law likens those rule limitations to statutes of limitations. In addition, in holding that the rule limitations period at issue in Machules was not jurisdictional, the court quoted with approval part of the dissent below stating: "The doctrine [of equitable tolling] serves to ameliorate harsh results that sometimes flow from a strict, literalistic construction and application of administrative time limits contained [in statutes and] rules." [Emphasis added.] Machules, supra, at 1134.

    
    

16. It also was recognized that none of the cases in the Machules line dealt with petitions filed by parties opposing the intended grant of an application. But it was concluded that, at least in terms of an agency's authority to extend the filing deadline, the rights of those kinds of petitioners to administrative proceedings should not be treated as less worthy than the rights of a denied applicant or a respondent to an agency's administrative complaint.

    
    

17. For these reasons, it was concluded that DEP had the authority to further extend the Section 403.815 deadline for filing petitions for administrative proceedings in these cases (beyond the seven-day extension, to 21 days, already given in the published notice) even without Rule 62-103.070 or a rule substitute for it. Indeed, the case law suggests that it would have been reversible error for DEP not to have granted a reasonable extension of time.

    Cf. Hamilton County Comm'n'rs v. Dept. of Environmental Reg., 587 So.2d 1378, 1390 (Fla. 1st DCA 1991) (error for agency to deny request to extend rule deadline for filing exceptions to recommended order); Dept. of Environmental Reg. v. Puckett Oil Co., Inc., 577 So.2d 988 (Fla. 1st DCA 1991) (error for hearing officer to deny request to extend rule deadline for filing responsive pleadings).

    
    

18. Even if there were no authority for the DEP to grant the requests to extend the time for filing LEAF's petitions in this case, it was concluded that the County's motions in opposition could not have been granted without a hearing to determine whether the Machules doctrine of equitable tolling should be invoked under the facts of this case. Cf. Castillo v. Dept. of Admin., Div. of Retirement, supra. This is not a case like Environmental Resource Associates of Florida, Inc., v. Dept. of General Services, 624 So.2d 330,331 (Fla. 1st DCA 1993), in which there was "nothing extraordinary in the failure to timely file," but rather only the "too ordinary occurrence of a party's attorney failing to meet a filing deadline." The record in this case suggested initially that, notwithstanding legally adequate notice by publication, LEAF's entitlement to

    receipt of mailed written notice as required by F.A.C. Rule 62-528.315(6)(a)5 may have led LEAF to be less vigilant to notice by publication. In addition, the record suggested that conversations between counsel for LEAF and counsel for DEP may have led LEAF to believe that its requests for extensions were authorized, whether they were or not, and that LEAF chose to request extensions of time, instead of filing petitions, in reliance on the suggestions of counsel for DEP. Finally, there did not seem to be any legally sufficient prejudice to the County. If LEAF had filed insufficient petitions just to beat the 21-day deadline given in the published notice, instead of requesting extensions of time, DEP would have had to "issue an order dismissing the petition with leave to file an amended petition . . . within 15 days" under F.A.C. Rule 62- 103.155(5). (The County's suggestion that it was prejudiced by the failure to strictly enforce the literal terms of Section 403.815 was rejected in the context of the doctrine of equitable tolling.)

    
    

    Standing

    
    

19. LEAF conceded during the hearing on September 3, 1996, that, except for purposes of its Issue 1, the allegations of standing in the initial petitions were insufficient.

    
    

20. As to its Issue 1, LEAF alleged that it was an "interested person" who asked for and, under F.A.C. Rule 62-528.315, was entitled to be mailed a copy of the published notice of draft permit, draft consent order, and public meeting (if any). LEAF argued that those allegations were sufficient to establish that its "substantial interests will be affected by proposed agency action." Section 120.52(12)(b), Fla. Stat. (1995). LEAF's argument was rejected, and it was concluded that LEAF's allegations of standing also were insufficient as to Issue 1.

    
    

21. LEAF's amended petitions attempted to allege standing under Section 403.412(5), Fla. Stat. (1995). That statute gives "citizens of the state . . . standing upon the filing of a verified pleading." See Manasota-88, Inc., v. Dept. of Environmental Reg., 441 So.2d 1109 (Fla. 1st DCA 1983)(in which the court equated the standing given under this statute to intervene as a party with the right to file a petition initiating formal administrative proceedings).

    But it was concluded that LEAF is not a Florida corporation and is not a "citizen of the state." Contrast Cape Cave Corp. v. Dept. of Environmental Reg., 498 So.2d 1309 (Fla. 1st DCA 1989), rev. denied, 509 So.2d 542 (Fla. 1989)(ECOSWF, a corporation organized under the laws of the State of Florida was a citizen of the state). No cases could be found in which a corporation organized under the laws of a state other than Florida has been accorded standing under Section 403.412(5), Fla. Stat. (1995). It was concluded that the allegations in the amended petitions--that "LEAF is a nonprofit membership corporation authorized to do business in Florida," that it maintains offices in Tallahassee, Florida" and that "[a] substantial number of the members of LEAF are citizens of the State of Florida"--were insufficient to confer standing under Section 403.412(5). It also was concluded that representational or associational standing is not available under Section 403.412(5).

    
    

    Leave to File Second Amended Petitions

    
    

22. Based on the foregoing conclusions of law, an Order Dismissing Petitions with Leave to Amend was entered on October 7, 1996. Among other things, it: (1) denied the motion to dismiss for lack of jurisdiction based on untimeliness contained in Pinellas County's Motion in Opposition to Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal

    Administrative Hearing filed in each of these cases; and (2) granted the motion to dismiss for lack of standing contained in Pinellas County's Motion in Opposition to Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing filed in each of these cases with leave to amend within ten days if there were any valid grounds for standing under Chapter 120, Florida Statutes.

    
    

    THIRD ROUND OF PETITIONS AND MOTIONS IN OPPOSITION

    
    

23. No second amended petition was filed by October 17, 1996, and the County filed a Motion in Opposition to Petitions Requesting Closing of File on October 22, 1996.

    
    

24. On the same day, October 22, 1996, LEAF filed a Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing in each of these cases. In the second amended petitions, LEAF made no allegation of standing under Chapter 120, Florida Statutes. Instead, LEAF cited Section 607.1505(2), Fla. Stat. (1995), and alleged that, as a foreign corporation with a certificate of authority to transact business in the State of Florida, LEAF has "the same rights and privileges as a domestic corporation of like character." In addition, an individual member of LEAF, B. Suzi Ruhl, sought to join as a petitioner and alleged that she has standing under Section 403.412(5), Fla. Stat. (1995).

    
    

25. On October 23, 1996, the County filed a Motion in Opposition to Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing. This time, DEP joined in the motion. This motion in opposition pointed out that LEAF made no allegation of standing under Chapter 120, Florida Statutes, and argued that LEAF's rights under Section 607.1505(2), Fla. Stat. (1995), did not include the right to file a petition under Section 403.412(5), Fla. Stat. (1995). It also argued that Ruhl's attempt to join as a petitioner was too late under Section 403.815, Fla. Stat. (1995). A hearing was held on this motion in opposition on October 30, 1996.

    
    

    RULING ON THIRD ROUND OF PETITIONS AND MOTIONS IN OPPOSITION

    
    

26. It is concluded that LEAF's rights under Section 607.1505(2), Fla. Stat. (1995), do not include the right to file a petition under Section 403.412(5), Fla. Stat. (1995). As previously ruled, the right to file a petition under Section 403.412(5) is limited to citizens of the State of Florida. For a corporation to be a citizen of the State of Florida, it must be a Florida corporation. Cf. Nat'l Rifle Ass'n of Amer. v. Linotype Co., 591 So.2d 1021 (Fla. 3d DCA 1991)(a foreign corporation authorized to do business in Florida is not a "resident" for purposes of forum non conveniens).

    
    

27. As for the attempt by B. Suzi Ruhl to join as a petitioner, it clearly is long after the time allowed under Section 403.815, Fla. Stat. (1995). At the hearing on October 30, LEAF and Ruhl argued that LEAF represents its members, such as Ruhl, and that Ruhl is the real party in interest. They cited Jefferson Realty of Ft. Lauderdale, Inc., v. U.S. Rubber Co., 222 So.2d 738 (Fla. 1941), and Puleston v. Alderman, 4 So.2d 704 (Fla. 1941), in support of their argument.

    
    

28. Of the two cited authorities, only Puleston v. Alderman dealt with the timeliness of the addition of the real party in interest; Jefferson Realty only dealt with the propriety of joining the real party in interest. In Puleston v. Alderman, an order was entered under antiquated rules of procedure with technical pleading requirements which simultaneously sustained a demurrer

    attacking the original pleading filed by "Camilla Puleston, by Her Husband and Next Friend, S. Puleston" and allowed an amendment of the declaration "to show that the suit was brought by 'Camilla Puleston, joined by her husband, S. Puleston.'" Id. at 705. Later, the trial court held that the suit was barred by statute of limitations because, although the original suit was brought within the statute of limiations, the amended declaration was not. On appeal, the Supreme Court reversed, holding that the amendment related back to the original pleading because "there was no substitution but simply the joining of the wife in the suit [which had already been started by the husband in her behalf]." [Emphasis added.] Id. at 706.

    
    

29. In contrast to Puleston v. Alderman, it is clear from the allegations in the first two rounds of petitions in these cases that LEAF was the real party in interest and that there was no attempt to petition on behalf of Ruhl. As previously ruled, representational or associational standing is not available to LEAF under under Section 403.815, Fla. Stat. (1995). For that reason, it is concluded that B. Suzi Ruhl's attempt to join as a petitioner at this time constitutes an attempt by her to file a new petition which is untimely under Section 403.815, Fla. Stat. (1995).

RECOMMENDATION

Based on the foregoing, it is recommended that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing filed in each of these cases by LEAF and

1. Suzi Ruhl.

   
   

   RECOMMENDED this 1st day of November, 1996, at Tallahassee, Florida.

   
   

   
   

   J. LAWRENCE JOHNSTON, Administrative Law Judge

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-3060

   (904) 488-9675 SUNCOM 278-9675

   Fax Filing (904) 921-6847

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996.

   
   

   COPIES FURNISHED:

   
   

   David A. Ludder, Esquire

   Legal Environmental Assistance Foundation, Inc. 1115 North Gadsden Street

   Tallahassee, Florida 32303

   
   

   Cynthia K. Christen, Esquire Department of Environmental Protection

   3900 Commonwealth Boulevard, Mail Station 35

   Tallahassee, Florida 32399-3000

2. Anthony Cleveland, Esquire Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole Post Office Box 6507

Tallahassee, Florida 32314-6507

Virginia B. Wetherall, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom General Counsel

Department of Environmental Protection Douglas Building

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 of Dismissal. Any exceptions to this Recommended Order of Dismissal should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-003238

Orders for Case No: 96-003238