STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSA DURANDO, and AUDUBON SOCIETY ) OF THE EVERGLADES, )

)

Petitioners, )

)

vs. ) CASE NO. 96-4850

)

GL HOMES OF BOCA RATON III )

CORPORATION, and SOUTH FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to written notice, an evidentiary hearing by video teleconference on a motion to dismiss was held in this case on November 1, 1996, at West Palm Beach, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Richard Grosso, Esquire

Shepard Broad Law Center Nova Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33314

For Respondents: Mary F. Smallwood, Esquire

215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Attorney for GL Homes of Boca

Raton III Corporation

John J. Fumero, Esquire 1/

South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioners' petition for an administrative hearing should be dismissed as being untimely.

PRELIMINARY STATEMENT

Respondent GL Homes of Boca Raton III Corporation (Respondent GL Homes) filed a permit application with Respondent South Florida Water Management District (Respondent District) for Conceptual Approval of a surface water management system. On August 28, 1996, Respondent District mailed its staff

report, which was its staff's recommendation and proposed agency action, and notice of rights to Respondent GL Homes. On or about August 29, 1996, Respondent District mailed the same documents to interested third parties, including Petitioners Rosa Durando, and Audubon Society of the Everglades.

Petitioners filed their petition for an administrative hearing on September 26, 1996. Respondent GL Homes filed a motion to dismiss with Respondent District on October 9, 1996.

On October 15, 1996, this matter was referred to the Division of Administrative Hearings. The parties requested a hearing on the motion to dismiss. An evidentiary hearing by video teleconference was held, by agreement of the parties, on November 1, 1996.

At the hearing, Petitioners presented the testimony of one witness and entered one exhibit into evidence. Respondent GL Homes presented the testimony of two witnesses and entered one exhibit into evidence.

A transcript of the hearing was not ordered. The parties filed proposed findings of fact.

FINDINGS OF FACT

1. Respondent GL Homes filed a permit application with Respondent District for Conceptual Approval of a surface water management system.

   
   

2. On August 28, 1996, Respondent District mailed a copy of its staff report and notice of rights to Respondent GL Homes. The staff report was the staff's summary and recommendation and Respondent District's notice of proposed agency action. The staff report indicated, among other things, that it was a "draft" and that the last date for action by the Governing Board of Respondent District was September 12, 1996.

   
   

3. On or about August 29, 1996, Respondent District mailed a copy of the same staff report and notice of rights to interested third parties, including Petitioners.

   
   

4. The notice of rights provided, among other things:

   
   

   PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS

   
   

   Any person whose substantial interests are or may be affected by the action which is proposed in the enclosed Notice of Proposed Agency Action/Staff Review Summary, may petition for an administrative hearing ... Petitions for administrative hearing on the above application must be filed within four- teen (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative

   determination (hearing) under section 120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal.

   There is no dispute that this provision is clear and unambiguous.

   
   

5. Petitioners did not receive the mailed staff report and notice of rights.

   
   

6. Before the filing of Respondent GL Homes' permit application, Petitioners had been involved with other permit applications which had come before Respondent District and had filed petitions for administrative hearings on other applications. Petitioners were well familiar with Respondent District's process, involving permit applications, its staff reports and the notice of rights.

   
   

7. Sometime during the first week of September 1996, while at the Respondent District's office, Petitioner Durando obtained a copy of the staff report and notice of rights.

   
   

8. Petitioner Durando appeared at the September 12, 1966, Governing Board meeting even though the permit application had not appeared on any agenda for the Governing Board that she had received. The permit application was to be heard as part of a list of "Add On Items", which did not provide prior notice of these items to the public.

   
   

9. At the meeting of September 12, 1996, Petitioner Durando obtained again a copy of the staff report. However, the staff report contained a cover memo, dated September 9, 1996, to the Governing Board from the Director of Respondent District's Regulation Department, with four maps included.

   
   

10. The cover memo was written in layman's terms and was a summary of the staff report. The cover memo contained no modification of the staff report. Moreover, the staff report attached to the cover memo contained no modifications.

    
    

11. Cover memoranda are routinely prepared for the members of the Governing Board for items on which public comment is expected. Public comment was expected on Respondent GL Homes' permit application.

    
    

12. A problem with notice to the public, regarding the Governing Board considering Respondent GL Homes' permit application at the September 12, 1996, was brought to the attention of the Governing Board. On the recommendation of Respondent District's staff, the Governing Board decided not to address the permit application at that meeting but to re-notice the public hearing on the permit application for October 10, 1996.

    
    

13. Petitioner Durando was concerned as to whether Respondent District had to re-publish the staff report and notice of rights. She made an inquiry to a member of Respondent District's staff regarding this issue, who was unsure if a re-publication had to occur and informed Petitioner Durando of his uncertainty. Later in the evening of the same day of Petitioner Durando's inquiry, that same member of Respondent District's staff left a message on Petitioner Durando's answering machine that no re-publication of the staff report and notice of rights was required since there was no modification or change of the staff report.

    
    

14. Also, prior to departing the September 12, 1996, Governing Board meeting, Petitioner Durando inquired of Respondent District's counsel as to when was the due date for filing a petition for an administrative hearing on

    Respondent GL Homes' permit application. Respondent District's counsel informed her that she must file her petition within 14 days of receiving a copy of the staff report and notice of rights.

    
    

15. Petitioner Durando had attended other Governing Board meetings in the past which contained permit applications as agendaed items and as add on items. No evidence was presented to show that the prior permit applications considered by the Governing Board at its meetings did not contain a cover memo from Respondent District's staff, which summarized in layman's terms the staff report.

    
    

16. Petitioner Durando believed that she had 14 days from September 12, 1996, in which to file a petition with Respondent District for an administrative hearing on Respondent GL Homes' permit application. She filed a petition on behalf of the Petitioners on September 26, 1996.

    
    

17. Neither prior to nor subsequent to the September 12, 1996, Governing Board meeting was a modification made to the staff report or a second staff report prepared.

    
    

18. Petitioners' actual receipt of the proposed agency action was sometime during the first week of September 1996. If Petitioners' actual receipt was on September 2, 1996, their petition for an administrative hearing must have been filed on or before September 16, 1996. If Petitioners' actual receipt was on September 6, 1996, their petition must have been filed on or before September 20, 1996.

    
    

19. At all times material hereto, Petitioner Durando was not an attorney.

    
    

20. Subsequent to filing the petition for an administrative hearing, Petitioners obtained the services of an attorney.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

22. Respondent GL Homes has demonstrated that Petitioners' petition for an administrative hearing is untimely.

    
    

23. Petitioners actual receipt of the proposed agency action, i.e., the staff report, and notice of rights was at the earliest September 2, 1996, and at the latest September 6, 1996. Looking at the circumstances most favorable to Petitioners, their petition for an administrative hearing must have been filed no later than September 20, 1996. However, their petition was not filed until September 26, 1996.

    
    

24. The documents that Petitioner Durando received at the September 12, 1996, Governing Board meeting did not create a new point of entry for Petitioners. The cover memo attached to the August 1996 staff report was a summary of the staff report prepared for the Governing Board members. Moreover, there was no modification of the staff report and no new staff report was prepared.

    
    

25. Petitioners' argument of equitable tolling, enunciated in Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988), is not persuasive.

Recognizing that Machules does not require "active deception or misconduct" for the doctrine to apply, the circumstances of this case do not demonstrate that the doctrine of equitable tolling is applicable.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final

order dismissing the petition for an administrative hearing as untimely.

DONE AND ENTERED in this 13th day of November 1996 in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 13th day of November, 1996.

ENDNOTE

1/ Respondent South Florida Water Management District did not take an adversarial role in this case. It's representative was a fact witness on the motion to dismiss.

COPIES FURNISHED:

Richard Grosso, Esquire Shepard Broad Law Center Nova Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33314

Mary F. Smallwood, Esquire

215 South Monroe Street Suite 815

Tallahassee, Florida 32301

John Fumero, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

Samuel E. Poole, III Executive Director Post Office Box 24680

West Palm Beach, Florida 33416

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 96-004850

Orders for Case No: 96-004850