vs. ) Case No. 01-3109
) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT and HIDDEN HARBOR LAND ) DEVELOPMENT, )
Respondents. )
On October 25, 2001, a preliminary administrative hearing on jurisdiction was held in this case in Fort Myers, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).
For Petitioner: Martha M. Collins, Esquire
233 3rd Street North, Suite 100 St. Petersburg, Florida 33701
Keith W. Rizzardi, Esquire
Cindy L. Bartin, Esquire Post Office Box 861118
St. Augustine, Florida 32086
The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
On July 17, 2001, the Club filed the Petition to challenge the District's issuance of a permit to Hidden Harbor Land Development (Applicant or Hidden Harbor) to construct and operate a surface water management system to serve a proposed residential development in Lee County, Florida (Application No. 991011-13). The District referred the Petition to DOAH on August 8, 2001, and an Initial Order was entered.
On August 31, 2001, Hidden Harbor filed a Motion to Dismiss the Petition as untimely. The Club filed a response in opposition, and the parties filed responses to the Initial Order, which included a request for a pre-hearing teleconference. A pre-hearing scheduling teleconference was held on September 14, 2001. Based on the matters discussed, final hearing was bifurcated, with a preliminary hearing on jurisdiction set for October 25, 2001, and final hearing on
the merits (if necessary) set for January 15-18, 2001, both in Fort Myers, Florida. A Joint Pre-Hearing Stipulation for the preliminary hearing was filed on October 23, 2001.
After presentation of evidence, Hidden Harbor requested a transcript of the preliminary hearing, and the parties were given ten days from the filing of the transcript in which to file proposed orders. Also, Hidden Harbor's agreed motion ore tenus to continue final hearing on the merits (and abate discovery) pending the ruling on jurisdiction was granted.
The Transcript was filed on November 8, 2001. All parties filed proposed recommended orders, which have been considered.
On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida.
In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address.
On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address.
Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies.
On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised:
Should you wish to object to the staff
recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend
your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action.
The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned:
Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights.
The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part:
A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . ..
Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a
formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days
. . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action.
Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights.
It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process."
Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not
read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights.
Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period.
Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit.
Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions.
Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney.
It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified.
Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on
June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached.
On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the
meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing.
The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
CONCLUSIONS OF LAW
Clear Point of Entry and Deadline to File Petition
A clear point of entry is described as the time during which an agency action may be challenged. The "clear point of entry" concept was articulated by the First District in Capeletti Bros. v. Department of Transportation, 362 So. 2d 346, 348 (Fla. 1st DCA 1978), in which the court held that:
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.
Notice of agency action that fails to inform a party of its right to seek administrative review and the relevant time limits is inadequate to trigger commencement of the
administrative process. See Florida League of Cities, Inc. v. Administration Commission, 586 So. 2d 397 (Fla. 1st DCA 1991); Henry v. Department of Administration, 431 So. 2d 677 (Fla.
1st DCA 1983); Wahlquist v. School Board of Liberty County,
423 So. 2d 471 (Fla. 1st DCA 1982). The concept of a "clear point of entry" was further defined in Latin Express Service, Inc. v. Department of Revenue, 660 So. 2d 1059 (Fla. 1st DCA 1995). The Latin Express court mandated that Florida state agencies inform an affected person of the full range of administrative and judicial remedies available under the law, as well as the time limits which apply.
Consistent with these cases, Section 120.569(1), Florida Statutes, provides that: parties shall be notified of any order, including a final order; each notice shall inform the recipient of any administrative hearing or judicial review that is available under Sections 120.569, 120.57, or 120.68, Florida Statutes; the notice shall indicate the procedure which must be followed to obtain the hearing or judicial review; and the notice shall state the time limits that apply.
Florida Administrative Code Rule 28-106.111 (the Uniform Rules of Procedure) states in pertinent part:
(1) The notice of agency decision shall contain the information required by Section 120.569(1), F.S. . . ..
* * *
(4) Any person who receives written notice of an agency decision and who fails to file
a written request for hearing or mediation within 21 days waives the right to request a hearing or mediation on such matters.
The District also has two nearly identical rules addressing points of entry into agency actions: Rule 40E- 0.109, published as an exception to the Uniform Rules of Procedure, states:
Point of Entry Into Proceedings and Mediation. Point of entry into proceedings determining substantial interests are governed by Rule 28-106.111, F.A.C., and this section.
(a) "Receipt of written notice of agency decision" as set forth in Rule 28- 106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action.
(b) If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received.
If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Section 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed.
Notwithstanding Rule 28-106.111,
intended agency decisions or agency decisions regarding consolidated applications for Environmental Resource Permits and Use of Sovereign Submerged
Lands pursuant to Section 373.427, F.S., shall provide a 14 day point of entry to file petitions for administrative hearing under Rule 28-106.111, F.A.C.
Rule 40E-1.511 states:
Procedures regarding point of entry into proceedings determining substantial interests and mediation are set forth in the Uniform Rules of Procedure Section 28- 106.111, F.A.C. The following exceptions are applied in combination with the applicable Uniform Rules of Procedure.
(a) "Receipt of written notice of agency decision" as set forth in Rule 28- 106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action.
(b) If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received.
If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Section 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed.
Notwithstanding the timeline in Rule 28-106.111, F.A.C., intended agency decisions or agency decisions regarding consolidated applications for Environmental Resource Permits and Use of Sovereign Submerged Lands pursuant to Section
373.427, F.S. shall provide a 14 day point of entry to file petitions for administrative hearing.
The Club contends that the District's rules provide for two points of entry: the first being notice of the agency's intended action; and the second being notice of final agency action. The Club concedes that the Notice Correspondence was clear as to the District's intention to issue the draft permit to Hidden Harbor. The Club contends that a second clear point of entry was required to give notice of the District's final agency action. The Club contends that no such second clear point of entry was given prior to filing of the Club's Petition because no Notice of Rights accompanied the permit received by Combs on June 26, 2001; in the alternative, the Club argues that the Petition was filed within 21 days of June 26, 2001.
It is concluded that the District was not required to provide a second clear point of entry. The one given through the Notice Correspondence mailed to the Club on
May 30, 2001, and received in early June 2001, was sufficient. First, Rules 40E-0.109(1)(a) and 40E-1.511(1)(a) are written in the disjunctive. Second, a requirement for two clear points of entry through use of the conjunctive in those rules would not make sense; if two clear points of entry were required, only the second would be necessary. Third, Rules
40E-0.109(2) and 40E-1.511(2) state that "an additional point of entry" only is required if the District's Governing Board "takes action which substantially differs from the notice of intended agency decision." Fourth, Florida Administrative Code Rules 40E-0.105 and 40E-1.6065 state that notice of final agency action only is required when the District's Governing Board takes final agency action which materially differs from the intended agency decision. In this case, the District's Governing Board approved and issued the draft permit without any changes.
Equitable Tolling
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). The Club next argues that, even if late, its Petition should be accepted so as to invoke jurisdiction under the doctrine of equitable tolling.
As explained in Machules:
The tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which "'focuses on the plaintiff's excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.'" Cocke v.
Merrill Lynch & Co., 817 F. 2d 1559, 1561
(11th Cir. 1987) (quoting Naton v. Bank of California, 649 F. 2d 691, 696 (9th Cir.
1981)). Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights.
In that case, instead of timely filing a petition for an administrative proceeding, Machules timely pursued a grievance appeal. As the Court noted, it was "not a case of mere inaction in the face of petitioner's mistake." Id. at 1134.
In addition, the state agency that employed Machules "countenanced and acquiesced in the error by participating in the grievance process until after the appeal period had run." Id. The agency scheduled the grievance hearing and participated in that process. The Court found that the
agency's conduct, while not deceptive or misconduct, sufficiently misled Machules so as to excuse his failure to timely file his petition for an administrative proceeding.
In this case, the Club did not contend, and there was no evidence, that the Club was in some extraordinary way prevented from filing a timely petition or that it mistakenly filed a timely petition in the wrong forum. Instead, the Club's argument was limited to the ground that the language in the Notice of Rights misled or lulled the Club into thinking there would be a second clear point of entry. But the Club failed to prove that either the District or Hidden Harbor took any action to mislead the Club or to lull the Club into thinking there would be a second clear point of entry. (The Club also did not contend, and there was no evidence, that the Club was misled or lulled into thinking that the District's staff report did not constitute notice of intended agency action--in any event, a contention that would not have been able to overcome the clear provisions of Florida Administrative Code Rules 40E-0.105 and 40E-1.6065 to the contrary.)
In the first place, the evidence was that the Club
did not delegate to Combs the task of advising the Club as to the correct time frames for challenging agency action.
Combs's supervisor, Patricia Thompson, also was involved in
the decision, as were the members of the Club's governing board. None of them testified, and it was not proven that any of them were misled or lulled by the language in the Notice of Rights into thinking there would be a second clear point of entry.
Secondly, it was not reasonable for Combs to conclude from the language in the Notice of Rights (and accompanying correspondence) that there would be a second clear point of entry. The language was reasonably clear that notice of intended District action would be the only point of entry if final agency action of the District's Governing Board was to adopt its staff's report.
Combs admitted that she did not read the rules or the statutes cited in the Notice of Rights. She assumed incorrectly that all pertinent statutes and rules were reproduced verbatim in the Notice of Rights. In addition, although Combs made numerous calls to the District to obtain a copy of the permit, there is no evidence that she made any attempt to discuss or confirm with anyone at the District her interpretation of the point of entry language.
Combs was aware of her lack of education and experience in determining deadlines and in the Chapter 120 administrative process in general. Lacking such education experience, a reasonably prudent person would not ignore the
waiver language in the Notice of Rights, would not fail to read the statutes and the rules cited in the Notice of Rights, and would not fail to solicit the advice of others having the pertinent education or experience. For these reasons, Combs's actions were not those of a reasonably prudent person.
It also was not reasonably prudent for the Club to rely on Combs to determine the deadlines for filing. As the Club knew, Combs was hired to direct the Estero office just two months before receipt of the Notice Correspondence. She had no prior education or experience in the Chapter 120 administrative process.
Meanwhile, the Club itself had ample prior experience in the Chapter 120 administrative process. Indeed, in Save the Manatee Club v. Whitley and Dept. of Environmental Protection, 2001 WL 1190934 (Fla. Dept. Env. Prot.), the Club unsuccessfully litigated a clear point of entry issue. In Whitley, the Club's petition was dismissed as untimely where the Club allowed the agency's 14-day deadline to file a petition to pass after an agency attorney incorrectly confirmed the misunderstanding of counsel for the Club that the Club had 21 days to file. In light of these experiences, it would not be reasonable or prudent for the Club to delegate the determination of deadlines to a new employee without pertinent education, experience, or training.
Under facts similar to those in this case, courts have rejected the application of equitable tolling post- Machules. See Environmental Resource Associates of Florida, Inc. v. Department of General Services, 624 So. 2d 330 (Fla. 1st DCA 1993)(declining to apply equitable tolling, the court found nothing extraordinary in the applicant's failure to timely file a petition which was received by the agency four days late); Vantage Healthcare Corp. v. Agency for Health Care Administration, 687 So. 2d 306 (Fla. 1st DCA 1997)(the court found nothing extraordinary in the untimely filing where the applicant relied on overnight mail carrier to timely deliver the document, and there were no official misrepresentations made to the applicant); Jancyn Manufacturing Corp. v. Department of Health, 742 So. 2d 473 (Fla. 1st DCA 1999)(the court refused to toll the time for filing, finding Jancyn was not unsophisticated concerning the administrative process, and the court refused to find the withdrawal of Jancyn's attorney an extraordinary circumstance sufficient to require application of the equitable tolling doctrine).
The equitable tolling defense also has been rejected
in recent administrative decisions. In addition to the Whitley case cited in Conclusion of Law 32, supra, an equitable tolling defense was rejected in Rowe v. Sea Ray Boats, Inc. and Department of Environmental Protection, 1999
WL 33116652 (Fla. Dept. Env. Prot.). In that case, Rowe received a copy of a notice of intent, public notice, and draft permit, including Notice of Rights. Rowe incorrectly concluded that the timeframe for filing a petition, as described in the Notice of Rights, did not begin to run until the agency published the public notice in the newspaper. As a result, Rowe failed to file a petition until 32 days after receipt of the Notice of Rights. Like Combs in this case, Rowe did not rely on any representations made by the agency or by the applicant, Sea Ray Boats.
It is recognized that the court in Stewart v. Dept. of Corrections, supra, cited Machules and applied equitable tolling in a decision citing no factors other than that the petition was just one day late and that there was no prejudice. But equitable tolling was subsequently rejected in Environmental Resource Associates of Florida, Inc. v. Department of General Services, supra, where the petition was filed four days late, and there was no prejudice (notwithstanding Judge Zehmer's dissent that three additional days late was insufficient to distinguish the case from Stewart).
Even if equitable tolling is applicable without any evidence that a petitioner was misled, equitable tolling should not be applied in this case, where the petition was
approximately three weeks late, and Hidden Harbor obtained a final development order from Lee County in reliance on the Club's failure to petition within the rule deadlines.
Excusable Neglect
The Club also invokes the doctrine of excusable neglect. To establish excusable neglect, a petitioner must prove that an excusable error or negligent act occurred and resulted in the party's failure to meet a deadline. In this case, the Club based its assertion of excusable neglect on personnel additions, a new office opening, and changes in interoffice routing and date-stamping procedures.
In all of the cases involving excusable neglect, the failure to file was directly related to the negligent act. See, e.g., Electric Engineering Company, Inc. v. General Electric Canada, Inc., 610 So. 2d 51 (Fla. 3rd DCA 1992)(registered agency misdirected a complaint to the defendant, who had moved offices); Trans-World Realty v. Realty World, 507 So. 2d 1201 (Fla. 4th DCA 1987)(a secretary failed to follow instructions to have another attorney sign and file responsive pleading); Rothblatt v. Department of Health & Rehabilitative Services, 520 So. 2d 644 (Fla. 4th DCA 1988)(excusable neglect found where an attorney failed to file an administrative hearing due to a secretarial mistake, which resulted in the secretary's dismissal). In this case, the
Notice Correspondence was clearly dated May 30, 2001, and was received by the Club and by Combs in early June 2001. It is concluded that personnel additions, a new office opening, and changes in interoffice routing and date-stamping procedures are not legal excuses for waiting until July 17, 2001, to file the Club's Petition.
RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition.
DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2001.
Cindy L. Bartin, Esquire Post Office Box 861118
St. Augustine, Florida 32086
Martha M. Collins, Esquire
233 3rd Street North, Suite 100 St. Petersburg, Florida 33701
Keith W. Rizzardi, Esquire
Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680
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.
