STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES ADLEY, )
)
Petitioner, )
)
vs. ) Case No. 05-3209
)
ST. JOHNS RIVER WATER )
MANAGEMENT DISTRICT and )
FRANCES MORRO, )
)
Respondents. )
)
RECOMMENDED ORDER OF DISMISSAL
This cause came before the undersigned on a Second Motion to Dismiss (Motion) filed by Respondent, St. Johns River Water Management District (District). By the Motion, the District seeks to dismiss the Amended Petition for Administrative Hearing (Amended Petition) filed by Petitioner, James Adley, on the ground the original request for a hearing was not timely filed. A Response in opposition to the Motion has been filed by Petitioner. Respondent, Frances Morro (Applicant), has not filed her position on the Motion.
In lieu of an evidentiary hearing on the timeliness issue, Petitioner and the District have submitted a Statement of Stipulated Facts (Stipulation), which was filed on June 16, 2006, together with Exhibits A through R, which were filed on June 19, 2006. The exhibits are drawn primarily from District
files pertaining to two applications filed by Ms. Morro. In addition, at the undersigned's request, on June 26, 2006, the parties supplemented the record by filing a letter (marked as Exhibit S). The parties did not file memoranda of law with the Stipulation; however, the Motion and Response contain limited argument regarding the issues raised herein and that argument has been considered by the undersigned. (To date, no papers have been filed in this case by Ms. Morro, who is not represented by counsel.) Because the Motion is dispositive of this matter, it is unnecessary to reach the merits of the application.
The issue in this case is whether the Petition for Administrative Hearing (as later amended) filed by Petitioner on August 15, 2005, is timely.
FINDINGS OF FACT
Based on the Stipulation of counsel, the exhibits, and the pleadings filed herein, the following findings of fact are made:
On December 11, 1998, Ms. Morro, who is the wife of Michael J. Morro, the developer of the property, filed her application with the District for an Environmental Resource Permit (ERP), which would authorize the construction of a surface water management system (including one wet-detention pond) to serve a 12-lot, single-family residential subdivision known as Tranquility on Lake Brantley in Seminole County,
Florida. In more specific geographic terms, the project is located on the south side of Wekiva Springs Road, on Cutler Road, and on the north side of Lake Brantley near the City of Longwood. The application was assigned number 40-117-0567A-ERP. The exhibits filed herein suggest that Ms. Morro, and not
Mr. Morro, owns the subject property.
After determining that the Applicant provided reasonable assurance that the proposed activities met the conditions for issuance of a permit and the system was consistent with its review criteria, on July 14, 1999, the District approved the application and issued Permit Number 40- 117-51722-1 (1999 Permit). However, the Permit did not authorize the construction of a retaining wall on Lot 10 of the Applicant's property. There is no record of any third party challenging the issuance of the 1999 Permit.
On February 19, 2002, the Applicant submitted "as built drawings" to the District, as required by Condition 10 of the 1999 Permit, to enable the District to verify that the work was completed in compliance with the approved plans and specifications. These as-built drawings did not reflect a retaining wall on Lot 10.
Mr. Adley resides and owns property at 880 Lake Brantley Drive, Longwood, Florida, which is "next to" the Morro property. It is fair to say that a less-than-harmonious
relationship exists between the two neighbors. Indeed, the exhibits reflect that Mr. Adley, the Applicant, and the Applicant's surveyor "have been involved in several causes of action between them over details of development on this property," and that over the years Mr. Adley has filed numerous complaints with the District regarding alleged violations by the Applicant while she performed work under the 1999 Permit.
Mr. Adley is familiar with ERPs and the process for obtaining one, having had ownership interests in businesses that have obtained ERPs from the District, and having participated in the activity undertaken to obtain the permits and then implement the activities authorized by the permits.
On May 16, 2003, Mr. Adley sent a letter to Kirby A. Green, III, Executive Director of the District, citing seven issues regarding Ms. Morro's proposed subdivision and asking that he be notified, in writing, "of any modifications to the permit, request for modifications of the permit, notice of violations, change to the approved plan, changes to the Covenants and Articles of Incorporation, any other changes to the proposed construction activities and any public notices that would effect [sic] [his] right to file for an administrative hearing." Mr. Adley also indicated that he had scheduled a meeting with William E. Carlie, Jr., District Compliance
Manager, to be held on May 19, 2003, "to discuss these issues with him in person."
On May 29, 2003, Mr. Adley sent a letter to Duane Ottenstroer, then Chairman of the District's Governing Board, regarding "the subdivision being constructed next to [his] home." In his letter, he voiced concerns about the recorded conservation easement on the Morro property being significantly different from the easement approved by the 1999 Permit. He also complained that the Applicant had submitted false information with an application submitted to the District in 1991. Finally, he enclosed a copy of the letter previously sent to Mr. Green.
On June 6, 2003, Mr. Adley sent a second letter to Mr. Carlie advising that the Applicant was violating the conditions in the 1999 Permit in five respects. The letter confirmed that Mr. Adley would again meet with District staff concerning this matter on June 11, 2003.
After conducting an investigation regarding Mr. Adley's allegations of violations by the Applicant, on September 12, 2003, K. Wilford Causseaux, an engineer in the Department of Water Resources, sent a letter to the Applicant's surveyor, Michael W. Solitro (who Mr. Adley says is the former Seminole County Surveyor who loaned the Applicant money in April 1998 to develop the land and then purchased a discounted lot from the
Applicant in return for "development services"), affirming the staff's finding that the "construction on [Morro's] residential property on Brantley Drive has encroached on the 100-year flood plain in the rear yard of Lot 11." Also, the letter identified the remedial steps that must be undertaken to correct three "issues associated with [the] residential construction." Finally, the letter noted that Mr. Morro had agreed to remove fill on Lot 7 that violated the "limits of construction" and return the rear-lot grading to its pre-development condition.
On September 29, 2003, Mr. Adley sent a third letter to Mr. Carlie confirming that the District had not allowed the Applicant to construct a retaining wall in lieu of a swale on Lot 11 and that if the Applicant wished to construct a wall, she must apply for a modification to the 1999 Permit. The letter also noted that Mr. Carlie agreed to notify Mr. Adley "in writing of any modification to the permit," including "minor" modifications. Finally, Mr. Adley requested the status of the incorrect conservation easement recorded on the property.
Apparently in response to that letter, by email dated October 10, 2003, Mr. Carlie notified District counsel that
Mr. Adley "has submitted a written request for actual notice of any proposed modification of this permit, will likely object, and potentially will challenge any agency action in this regard to a 120 hearing."
On October 24, 2003, Mr. Carlie responded to
Mr. Adley's letter of September 29, 2005, and advised him that the staff had determined that "portions of the fill placed for development of [Lot 11] are waterward of the limits of construction" and that this action "is a violation of the permit subject to enforcement action." The letter confirmed that the District understood Mr. Adley's "request to be noticed of any modifications of the reference permit" and promised that "actual notice (mailed notice to your residence) of any action this agency undertakes in this regard" would be given. Mr. Carlie further explained that some modifications to a permit could be issued by letter, while other modifications required an application, fee, and formal agency action. He indicated that the remedial steps outlined in his letter dated September 12, 2003, to Mr. Solitro "may qualify for a permit modification by letter under the provisions of section 40C-4.331 F.A.C." Finally, Mr. Carlie stated that the "District continues to understand your concern about this project and request to be noticed of any modifications of the reference permit. You will be provided actual notice (mailed notice to your residence) of any action this agency undertakes in this regard."
Also on October 23, 2003, Mr. Carlie sent a second letter to Mr. Adley outlining in detail the results of the
District's investigation of Mr. Adley's concerns expressed in various letters and at least two meetings with staff.
On May 3, 2004, Frank J. Meeker, the District's Ombudsman, sent Mr. Adley a letter regarding a Verified Complaint dated April 1, 2004, that Mr. Adley had filed with the Executive Director. (The Verified Complaint was not included in the exhibits which accompanied the Stipulation, but a copy is attached to the Motion.) The letter responded to "six specific objections" Mr. Adley had raised concerning work on the Morro property. It also instructed the District staff to prepare, within thirty days, a letter of modification to the 1999 Permit which addressed the conservation easement, monuments, and 100- year flood elevation issues, together with a recommendation for approval or denial, and to submit the modified conservation easement to the Executive Director for approval or denial. Finally, the letter noted that Mr. Adley would receive "written notice of these actions" and an opportunity to object to these modifications. The record is unclear whether Mr. Meeker's instructions to staff resulted in a letter of modification to the 1999 Permit without further action by the Applicant, or whether it triggered an application by the Applicant to modify her 1999 Permit based upon the staff recommendations. More than likely, the latter occurred.
On May 26, 2004, Mr. Meeker provided a follow-up letter to Mr. Adley in which he confirmed that Mr. Adley had been given a copy of the project plans dated June 17, 1999, used by Ms. Morro in securing the 1999 Permit. He further advised that until he received a staff survey "to determine the size of the dock [for purposes of determining if a permit was required] and the location of the red wall and retaining wall," no disposition of those issues could be made. Finally, he advised that no formal request for modification of the 1999 Permit had been filed, but if and when one was filed, he was "directing staff to supply you with a copy of such application."
On July 6, 2004, Ms. Morro filed an application with the District seeking to modify her 1999 Permit. (The application noted that Mr. Morro would serve as Ms. Morro's authorized agent to secure the permit.) In the application, Ms. Morrow described the proposed activity as follows: "Alteration of permitted conservation easement[,] to remove easement from lot 11[,] and provide reserved rights for construction of 2 single family docks." This application was
assigned number 10-117-51722-2. As noted above, the application did not include a provision for a retaining wall on Lot 10.
However, sometime between the time the application was filed in July 2004 and January 21, 2005, the Applicant amended her application to add a request for a retaining wall.
By email dated July 12, 2004, counsel for the District notified the reviewer of the application, Anthony Miller, that "I told Mr. Adley to call PDS [Permit Data Services]. Who should I contact there to see what notice was sent? Mr. Adley is going to challenge this so we need to make sure everything is done right." Mr. Miller emailed back the following response: "I have no idea. I assume it was noticed as usual through PDS to those listed to receive notices. Should we do anything more, like contacting Mr. Adley directly?"
By letter dated July 15, 2004, Mr. Carlie forwarded a "complete copy" of Ms. Morro's application to Mr. Adley. The letter noted that Mr. Adley's receipt of the letter, attached materials, and notice of rights "shall serve [as] the notice you requested for the purposes of timeframes under Chapter 120, F.S." (A copy of Notice of Rights was enclosed; it set out in detail the process by which Mr. Adley could request a formal hearing.) The enclosed construction drawings did not indicate the inclusion of a retaining wall.
During the staff's review process of the application, two Requests for Additional Information (RAI) were sent by the District to Mr. Morro on August 3, 2004, and January 21, 2005. Significantly, item 4 on page 2 of the RAI dated January 21, 2005, noted that "[t]he plans indicate that a retaining wall is proposed. Please provide detailed calculations, and a revised
wall detail as necessary, to demonstrate that this portion of the surface water management system will function as intended." (Emphasis added) Copies of both RAIs were sent to Mr. Adley.
On February 28, 2005, the Applicant filed a letter and attachments in response to the January 21, 2005 RAI, which included, among other things, plans and details prepared by a professional engineer for a retaining wall to be located landward of the 100-year floodplain, the limit of construction. The Stipulation and exhibits do not indicate whether these documents were ever provided to Mr. Adley at that time.1 However, on March 9, 2005, they were provided to his counsel for review. See Finding of Fact 21, infra.
By letter dated January 21, 2005, Mr. Adley's former counsel (Timothy A. Smith, Esquire) made a public records request for inspection of "the district files relating to permit numbers 40-117-51722, 40-117-0567, and any other district permits or applications for such permits relating to the property owned by Frances and Michael Morro on Brantley Drive along the northern shore of Lake Brantley." (The letter indicates that Mr. Smith would meet District counsel in Palatka on January 25, 2005, to review this part of the records request.) The letter also requested that Mr. Smith be allowed to review all files of eleven District employees which related to the various iterations of the Morro project in 1990-1991,
1997-1998, and 1999 to present. The records pertaining to the second part of the request were apparently located in another office and were to be inspected at a later time.
According to the Stipulation, in response to the public records request, on March 9, 2005, Mr. Smith reviewed all requested files in the District's main office in Palatka and the District's field office in Altamonte Springs. (As noted above, part of the records were inspected on January 25, 2005, in Palatka.) It is fair to infer that on March 9, 2005, Mr. Smith would have had the opportunity to review the Applicant's plans and details for a retaining wall filed with the District on February 28, 2005. By this time, then, Mr. Adley should have been on notice that the Applicant had modified her application and now sought to build a retaining wall.
On March 30, 2005, the District, through its Altamonte Springs field office, approved Ms. Morro's application and issued Permit No. 40-117-51722-2 (2005 Permit). The 2005 Permit authorized the modification of the 1999 Permit "to include the construction of a retaining wall along the rear of Lots 6, 7, 8, 9, and 10 and the 'lot split' lot, and to amend the easement on Lots 9 and 10, to allow selective clearing and trimming of the conservation easement in accordance with a District approved landscape plan, and to exclude lands no longer under the applicant's control."
On April 10, 2005, notice of the issuance of the 2005 Permit was published by Ms. Morro in the Sanford Herald, a newspaper of general circulation in Seminole County. See Fla. Admin. Code R. 40C-1.1007(1). The Notice provided that "[p]etitions for administrative hearing on the above application must be filed within twenty-one (21) days of publication of this notice or within twenty-eight (28) days of the District depositing notice of this intent in the mail for those person to whom the District made actual notice. Failure to file a petition within this time period shall constitute a waiver of any right(s) such person(s) may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S. concerning the subject permit." Therefore, if notice was received by publication, petitions objecting to the issuance of a permit were due no later than May 1, 2005, or if written notice was given, petitions were due no later than
May 8, 2005.
The District did not send Mr. Adley written notice of its intent to issue the 2005 Permit. There is no indication in the Stipulation, exhibits, or Motion as to why notice was not sent, particularly since Mr. Adley had made numerous requests for written notice of any District action on the property, and he had been promised such notices by various District personnel since at least October 2003.
On April 25, 2005, Ms. Morro began construction of the retaining wall authorized by the 2005 Permit and construction continued over the next thirty calendar days. It is fair to assume that the wall was completed on or about May 25, 2005.
Also on April 25, 2005, or the day construction began, at Mr. Adley's direction, Mr. Smith (his former counsel) telephoned Mr. Carlie to inform him that construction activity on Lot 10 was taking place. Therefore, it is clear that on that date, Mr. Adley had observed that construction on the Morro property had begun.
In response to Mr. Smith's telephone call, Mr. Carlie then requested that two District employees, Mr. Casseaux and David Eunice, investigate what was occurring on the Morro property.
On the same date that Mr. Smith telephoned Mr. Carlie, Casseaux and Eunice inspected the Morro property and observed that a retaining wall authorized by the 2005 Permit was under construction. It is fair to infer from the stipulated facts that Mr. Carlie reported these findings to Mr. Smith within a short period of time.
On an undisclosed date, but presumably within a day or so, Mr. Smith reported to Mr. Adley that he had spoken with
Mr. Carlie and was told the construction was in conformance with "the Permit" but that Mr. Carlie did not specifically refer to
either the 1999 Permit or the 2005 Permit as authorizing the work. The Stipulation and exhibits do not indicate whether Mr. Carlie advised counsel that the 2005 Permit had been
approved. However, given the history of this dispute, it would be highly unusual for counsel not to make inquiry about the disposition of the application, or for Mr. Carlie not to provide this information during the course of their telephone conversations, particularly since Mr. Carlie was well aware of Mr. Adley's long-standing interest in the Morro project.
Mr. Adley could not tell from his view of the property whether the exact location of the construction was lakeward of the limits of construction, which was the 100-year floodplain, and therefore could only rely on the District staff.
Mr. Adley asserts that he did not learn of the 2005 Permit modification until July 25, 2005, through a conversation with an unidentified neighbor. Whether Mr. Adley (or his counsel) then called the District to verify the accuracy of the neighbor's information is not of record. (The initial Petition for Administrative Hearing simply alleges that "petitioner received notice of the District's action on July 25, 2005, through a conversation with a neighbor.")
On August 15, 2005, or twenty-one days later, through counsel, Mr. Adley filed his initial Petition for Administrative Hearing with the District challenging the issuance of the 2005
Permit. (The Amended Petition was later filed on October 12, 2005, as a result of the striking of certain allegations in the first filing.) The District's Motion was then filed on November 16, 2005. (Action on the Motion has been delayed because of substitution of Petitioner's counsel, and delays by the parties in taking discovery and preparing the Stipulation.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this action pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005)2.
Section 373.413, Florida Statutes, governs the notice requirements for the issuance of permits to construct or alter a stormwater management system. Subsection (3) provides in relevant part that "[a]fter the receipt of an application for a permit, the governing board . . . shall publish notice of the application by sending a notice to any persons who have filed a written request for notification of any pending applications affecting the particular designated area. Such notice shall be sent by regular mail." Subsection (4) further provides in relevant part that "[i]n addition to the notice required by subsection (3), the governing board . . . may publish, or require an applicant to publish at the applicant's expense, in a newspaper of general circulation within the affected area, a notice of receipt of the application and a notice of intended
agency action . . . . The governing board . . . shall also provide notice of this intended agency action to the applicant and to persons who have requested a copy of the intended agency action for that specific application."
Under the foregoing statutory scheme, when an application has been filed, the District must send notice of the filing of that application to any persons who have filed a written request for notification of any pending application. Likewise, once a decision has been made to issue a permit, the District must provide notice of that decision to any person who has requested a copy of the intended agency action.
The District provided Mr. Adley with a copy of the application for the 2005 Permit, as required by Subsection (3). However, it concedes that (for reasons not given) it failed to send Mr. Adley written notice of its intended agency action issued on April 10, 2005, as required by Subsection (4). Even so, it contends that under the rationale in Wentworth v. State, Department of Environmental Protection et al., 771 So. 2d 1279 (Fla. 4th DCA 2000), Mr. Adley received actual notice of approval of the application on April 25, 2005, when he observed the construction authorized by the 2005 Permit, and he was obliged to thereafter file his request for a hearing in a timely manner. Although the Motion does not state the time limitation for filing a petition under these circumstances, the parties
appear to agree that once actual notice is provided, a twenty- one day time period would apply.
In his Response to the District's Motion, Mr. Adley does not address the Wentworth decision or its rationale. (Similarly, the District's Motion does not address the legal ground advanced by Mr. Adley in his Response.) Also, he concedes that his request for a hearing was not filed within the twenty-one day window after publication of the notice on
April 10, 2005, or even after he observed the construction on April 25, 2005. However, he points out that in his Amended Petition, there are allegations, which must be accepted as true for purposes of ruling on the Motion, that he made repeated requests for written notice of any District action regarding the Morro property, including the issuance of the 2005 Permit, and that he reasonably relied on numerous representations by District employees that he would be given written notice of any such action. Given these allegations, he argues that under the holding in Avante, Inc. et al. v. Agency for Health Care
Administration, 722 So. 2d 965 (Fla. 1st DCA 1998), an evidentiary hearing must be held on the limited issue of whether equitable tolling operates to excuse the late filing of his petition. Because the parties have submitted a Stipulation and exhibits and waived their right to an evidentiary hearing, the existing record will be used to adjudicate that issue. Finally,
Mr. Adley contends that the issue of timeliness itself was not timely raised, as it should have been asserted as an affirmative defense in the District's answer to the original Petition for Administrative Hearing, rather than by a motion to dismiss. As to this latter contention, the Uniform Rules of Procedure do not require that a respondent file an answer to a petition. See
Fla. Admin. Code R. 28-106.203 ("[a] respondent may file an answer to a petition"). Thus, in order to preserve the issue, the District was not required to raise this ground by way of an affirmative defense in an answer to the original Petition.
Moreover, it is noted that this ground for dismissal was initially raised by the District in its first Motion to Dismiss dated August 31, 2005, see Paragraphs 3 and 4, Motion to Dismiss, and later renewed in its Second Motion to Dismiss. The argument is therefore rejected.
Contrary to the District's assertion, Wentworth did not hold that a point of entry is automatically triggered when a third party first sees construction activity; it only held that a request for administrative hearing filed promptly after knowledge of a project is timely.3 Terwilliger et al. v. South Florida Water Management District et al., DOAH Case No. 01-1504 (DOAH Feb. 27, 2002; SFWMD April 15, 2002) 2002 Fla. Div. Adm. Hear. LEXIS 149 at *72. In order to trigger a point of entry, actual notice must also include "knowledge of the hearing rights
flowing from agency action, not just knowledge of the project's existence, or even knowledge of an agency's permitting activity in conjunction with the project." Id. at * 73.
Equitable tolling is generally applied in an administrative proceeding when a person 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. See Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). (In his Response, Mr. Adley asserts that he was lulled or misled into inaction because he relied upon the District's representations that written notice would be provided when the application was approved; he does not assert that in some extraordinary way he was prevented from requesting a hearing, or that he mistakenly filed his request in the wrong forum.) The application of the doctrine to allow the prosecution of an untimely administrative proceeding is dependent, in part, upon a showing that the litigant has not slept on its rights. Machules
at 1135. Thus, the doctrine is designed to protect the "reasonably prudent" litigant. Id. While the facts presented here differ from the facts presented in Machules4, the broad principles enunciated in that decision still apply. Finally, as the party asserting the applicability of equitable tolling to overcome the waiver of his right to a hearing, Mr. Adley has the
burden of proving by a preponderance of the evidence the existence of factors that justify application of the doctrine. See, e.g., Dept. of Envir. 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).
Even though Mr. Adley may have been initially misled or lulled into inaction by District promises of written notice, the totality of the evidence shows that by April 25, 2005,
Mr. Adley knew, or should have known, that the application had been approved and a permit issued. In other words, by that date, not only had Mr. Adley observed construction activity on the site, but he also had gathered other information during the preceding months, which coupled with his understanding of the ERP process, should have provided him with knowledge of the hearing rights flowing from the agency action. Terwilliger, supra. This is because (a) shortly after January 21, 2005, he was put on notice that the Applicant had modified her application by seeking authority to build a retaining wall, see
Exhibit O, page 2, item 4 ("The plans indicate that a retaining wall is proposed."); (b) on March 9, 2005, his counsel reviewed all documentation relating to the "various iterations of this project," see Exhibits P and S and Stipulation, paragraph 22, which would have included the plans and details regarding the retaining wall which were attached to the Applicant's letter
dated February 28, 2005; (c) on April 25, 2005, Mr. Adley actually observed the Applicant begin constructing a retaining wall on her property (presumably in the manner and location described in the plans and application) and instructed his attorney to call Mr. Carlie to inform him about the work, see Stipulation, paragraph 26; and (d) Mr. Adley was well aware that the 1999 Permit did not authorize a retaining wall, see Findings of Fact 2 and 9, while the 2005 Permit, once issued, would authorize one. At the same time, Mr. Adley is familiar with the ERP process, having participated in the securing of various ERPS over the years, see Finding of Fact 4. For example, he obviously knew that a petition must be filed no later than twenty-one days after receiving actual notice since he filed his petition exactly twenty-one days after speaking with his neighbor. See Finding of Fact 32.
In light of these facts and circumstances, it is concluded that after April 25, 2005, the doctrine of equitable tolling did not excuse Mr. Adley's failure to file a petition. This is because, at a minimum, given the information at hand, a reasonably prudent person would have made inquiry about the status of the Morro application. Machules at 1135. By failing to make any type of inquiry, or take any affirmative steps to protect his interests until August 15, 2005, Mr. Adley did not exhibit reasonable prudence and essentially slept on his rights.
Id. Even if Mr. Adley did not understand the significance of the construction until the entire wall was completed around May 25, 2005, the facts and circumstances support a conclusion
that a clear point of entry would have arisen no later than that date, and he should have filed his petition within twenty-one days thereafter. The filing of his request for a hearing is therefore untimely and should be dismissed, with prejudice.
Based on the foregoing Findings of Fact and Conclusion of Law, it is
RECOMMENDED that the St. Johns River Water Management District enter a final order granting the District's Second Motion to Dismiss and dismissing, with prejudice, the Amended Petition for Administrative Hearing.
DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida.
S
DONALD R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2006.
ENDNOTES
1/ The parties were requested by the undersigned to stipulate whether or not the February 28, 2005 letter and attachments were provided to Mr. Adley. A stipulation was never filed. (District counsel filed a letter on July 6, 2006, stating that opposing counsel had not responded to their inquiries.)
2/ All references are to the 2005 version of the Florida Statutes.
3/ In Wentworth, the applicant sought permission from the Department of Environmental Protection (Department) to build a single-family dock structure over sovereign submerged lands with a noticed general permit. After the Department notified the applicant that he met the requirements for a noticed general permit, Mr. Wentworth began construction of the dock structure. He also declined to publish notice of the agency action, as suggested by the Department, and the Department did not send written notice of this action to his neighbors (since none had been requested). When the neighbors actually saw the construction taking place, they first contacted the applicant objecting to the size of the dock and then filed a request for an administrative hearing challenging the ongoing dock construction. In its Amended Final Order, the Department rejected an argument by the applicant that the neighbors lacked standing to file their challenge. In doing so, the Department concluded that because no written notice had been given, and the applicant declined to publish notice in a newspaper, the agency action did not become final, and the neighbors were not given a point of entry into the proceeding until they actually observed construction on the applicant's property. Vogel v. Wentworth et al., DOAH Case Nos. 99-0289 and 99-0290 (DOAH Aug. 25, 1999; DEP
Oct. 28, 1999) 1999 Fla. ENV LEXIS 287 at *19. On appeal, the Court affirmed the Department's decision and held that "[s]ince the [neighbors] were not sent written notice of the agency action and Wentworth did not publish such notice, Wentworth's neighbors were denied 'a clear point of entry' until they actually saw the construction taking place." Wentworth at 1281.
4/ In Machules, a Department of Insurance (DOI) employee was terminated for misconduct and was given written notice that he had the right to appeal that decision to the Department of Administration (DOA) within twenty days. The employee took the notice to his union, who then filed a contractual grievance on his behalf with DOI, rather than filing an appeal with DOA. A DOI hearing on the grievance was held, but the grievance was
later denied on the ground it was not cognizable under the union contract and that his only appeal was to DOA. However, because the time for filing an appeal with DOA had expired one day before the grievance hearing was held, DOA held that the appeal was untimely. This decision was later affirmed by the First District Court of Appeal. Machules v. Department of Administration, 502 So. 2d 437 (Fla. 1st DCA 1986). The matter was then certified to the Supreme Court, which quashed the decision of the district court and held that the doctrine of equitable tolling applied because the employee, a lay person, was misled or lulled into inaction by his employer, given the DOI's agreement to hold the grievance hearing one day after the twenty-day appeal period had expired, and its failure to warn the employee that he was pursuing the wrong remedy. Machules at 1134.
COPIES FURNISHED:
Kirby A. Green III, Executive Director St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177-2529
J. A. Jurgens, Esquire
J. A. Jurgens, P.A.
505 Wekiva Springs Road, Suite 100 Longwood, Florida 32779-6192
Vance W. Kidder, Esquire
St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177-2529
Frances Morro 885 Cutler Road
Longwood, Florida 32779-3525
NOTICE OF RIGHT TO FILE EXCEPTIONS
All parties have the right to submit written exceptions within
15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 09, 2006 | Agency Final Order | |
| Jul. 10, 2006 | Recommended Order | Equitable tolling did not operate to excuse late filing of the request for hearing. Recommend that the petition be dismissed. |
