STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST BEACHES NEIGHBORHOOD DEFENSE, INC.; LESLIE PENNEL; CORNELLIA F. HAMMOND; AND ESTELLE M. HICKS,

Petitioners,

vs.

BAY COUNTY AND DEPARTMENT OF COMMUNITY AFFAIRS,

Respondents,

and

LEGACY BEACH, INC.,

Intervenor.

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FINAL ORDER OF DISMISSAL

A hearing in this case was held on March 8, 2006, in Tallahassee, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners:

Diane C. Brown, Qualified Representative

241 Twin Lakes Drive

Laguna Beach, Florida 32413

For Respondent Bay County:

Terrell K. Arline, Esquire 3205 Brentwood Way

Tallahassee, Florida 32309

For Respondent Department of Community Affairs (DCA) Kelly A. Martinson, Esquire

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Intervenor Legacy Beach, Inc.:

Gary K. Hunter, Esquire Hopping, Green & Sams Post Office Box 6526

Tallahassee, Florida 32314-6526

PRELIMINARY STATEMENT

This case was initiated on January 17, 2006, when Petitioners filed their "Petition Challenging Bay County Land Development Regulation and Request for Administrative Hearing" with the Division of Administrative Hearings. The petition was filed pursuant to Section 163.3213(5), Florida Statutes,1/ which provides that a substantially affected person may request a hearing from DOAH to contest a determination by the Department of Community Affairs that a local government land development regulation is consistent with the local comprehensive plan. The order of the Administrative Law Judge in such a proceeding is a final order.

The petition in this case contested DCA's December 22, 2005, "Determination of Consistency of Land Development

Regulation" pertaining to Respondent Bay County's adoption of an amendment to its land development regulation that defines the term "Dwelling, or Dwelling Unit" (hereinafter referred to as the DCA Determination).

Respondent Bay County moved to dismiss the petition, asserting that it was untimely because it was not filed within

21 days of the DCA Determination. Petitioners opposed the motion to dismiss, arguing that the petition was timely because it was filed within 21 days of Petitioners' receipt of written notice of the DCA Determination. The undersigned dismissed the petition, but granted leave to Petitioners to file an amended petition that included allegations sufficient to demonstrate a basis for equitable tolling.

Petitioners filed an amended petition in which they alleged, among other facts, that they had been misled or lulled into inaction by statements made by an employee of DOAH. Respondent Bay County moved to dismiss the amended petition, but the motion was denied because Petitioners' new allegations, if proven, could establish a basis for the application of equitable tolling. An evidentiary hearing was then scheduled to take evidence solely on the issue of whether there was a factual basis for equitable tolling of the filing deadline.

At the hearing, Petitioners presented the testimony of Robert Williams, deputy clerk of DOAH, and Petitioner Diane

Brown. Petitioners' Exhibit 1 was admitted into evidence. No witnesses or exhibits were presented by the other parties.

Following the filing of the hearing Transcript with DOAH, a new motion to dismiss was jointly filed by Respondent Bay County and Intervenor Legacy Beach, Inc., and joined in by Respondent DCA. A response in opposition to dismissal was filed by

Petitioners.

FINDINGS OF FACT

1. The DCA Determination was issued by Respondent DCA on December 22, 2005.

2. The DCA Determination included a "Notice of Rights" which stated that any substantially affected person may request a hearing from DOAH "within 21 days from the date of this determination."

3. Twenty-one days from the date of the DCA Determination was January 12, 2006.

4. In the original petition, it was alleged that Petitioners received notice by mail "on or about December 26, 2005." At the hearing, Petitioner Brown stated that she received a copy of the DCA Determination on December 24, 2005, two days after it was issued, but one of the Petitioners (apparently Leslie Pennell) received notice on December 27

   or 28, 2006.

5. Petitioner Brown read the Notice of Rights statement in the DCA Determination, but she thought it was inaccurate because she perceived it to be inconsistent with Sections 163.3213(5) and 120.569(1), Florida Statutes. She researched other statutes and rules to resolve this perceived inconsistency.

6. Petitioner Brown's research led her to Florida Administrative Code Rule 28.106.111(2),2/ which states: "Unless otherwise provided by law, persons seeking a hearing on an agency decision . . . shall file a petition within 21 days of receipt of written notice of the decision." Petitioner Brown concluded that the petition could be filed 21 days from her receipt of written notice of the DCA Determination.

7. On January 12, 2006, Petitioner Brown placed a telephone call to DOAH "to ensure that [she] was interpreting the rules correctly." She spoke to Robert Williams, deputy clerk of DOAH. She claims that Mr. Williams confirmed that the deadline for filing the petition was 21 days from her receipt of written notice, and she relied on Mr. Williams' statements in filing the petition on January 17, 2006.

8. Twenty-one days from Petitioner Brown's receipt of notice was January 14, 2006, but that was a Saturday and the following Monday was a state holiday (Martin Luther King, Jr. Day), so she filed the petition on Tuesday, January 17, 2006.

9. Mr. Williams had no recollection of having a telephone conversation with Petitioner Brown on January 12, 2006. Petitioner Brown produced her telephone bill for the month of January which indicates she made a five-minute call to DOAH on January 12, 2006. The telephone bill, of course, does not indicate who she talked to at DOAH.

10. The first telephone conversation Mr. Williams can recall having with Petitioner Brown was during a call he initiated on January 17, 2006, to tell her she had filed the petition in the wrong place. Mr. Williams thought the petition should have been filed with the DCA. Mr. Williams testified that during his telephone conversation with Petitioner Brown on January 17, 2006, he went on the DOAH website and read some of "DOAH's rules" with her. He does not recall discussing the issue of her filing deadline.

11. Mr. Williams stated that he never tells people when they must file a petition. When asked such a question, he always refers the person to the agency that issued the order.

12. Mr. Williams expressed confidence that he never told Petitioner Brown when she had to file her petition with DOAH. Mr. William's testimony is credible and is consistent with the fact that, on January 12, 2006, he still thought any petition to challenge a decision made by the DCA had to be filed with the DCA, not with DOAH. Furthermore, it is unlikely that

    Mr. Williams would have forgotten a conversation with Petitioner Brown on January 12, 2006, if, on that date, he had deviated from his consistent practice not to tell people when their petitions must be filed.

13. Petitioner Brown never described precisely the statements allegedly made by Mr. Williams on January 12, 2006, upon which she relied. His statements were simply characterized as having "confirmed" that the petition could be filed 21 days from Petitioners' receipt of notice. Petitioners did not allege or prove that Mr. Williams understood or addressed the specific procedural issue of whether the filing deadline indicated in Section 163.3213(5), Florida Statutes, and stated in the DCA Determination, was controlling, or, whether the filing deadline was governed by Rule 28-106.111(2).

14. Because Petitioner Brown had already concluded that she could file the petition 21 days from her receipt of notice of the DCA determination, it is likely that she interpreted Mr. Williams' statements as confirming that conclusion, even though Mr. Williams did not understand the premises of her conclusion, did not intend to confirm her conclusion, and, in fact, did not confirm her conclusion.

15. Petitioners did not allege there were circumstances that made filing their petition on January 12, 2006, impossible or unreasonably burdensome.

16. Petitioners' decision to file their petition on January 17, 2006, was based on simple error and was not for the purpose of delaying the proceedings or to otherwise prejudice any party.

17. The record contains no evidence that the untimely filing of the petition in this case has prejudiced Respondents.

    CONCLUSIONS OF LAW

    
    

18. DOAH has jurisdiction over the parties and the subject matter of this case pursuant to Sections 120.569, 120.57, and 163.3213, Florida Statutes.

19. Section 163.3213, Florida Statutes, establishes the procedures for the review of local government land development regulations to assure that they implement and are consistent with the local comprehensive plan. Section 163.3213(5)(a), Florida Statutes, provides in pertinent part:

    If the state land planning agency determines that the regulation is consistent with the local comprehensive plan, the substantially affected person who filed the original petition with the local government may, within 21 days, request a hearing from the Division of Administrative Hearings, and

    . . . the order of the administrative law judge shall be a final order and shall be appealable pursuant to s. 120.68.

    
    

20. Section 120.569(1), Florida Statutes, requires agencies to notify each party or the party's attorney of any order that affects the substantial interests of the party. The

    notice is required to inform the party of any administrative hearing that is available, the procedure that must be followed to obtain the hearing, and the time limits that apply.

21. In this case, the DCA Determination contained the following "Notice of Rights":

    Pursuant to Section 163.3213(5)(a), Florida Statutes, within 21 days after the date of this determination, any substantially affected person who filed an original petition with a local government may request a hearing from the Division of Administrative Hearings, the Desoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060.

    
    

22. This notice informed Petitioners of the availability of an administrative hearing at DOAH and DOAH's address for filing a request for hearing. The notice also informed Petitioners of the time limit that was applicable--"21 days after the date of this determination."

23. Deference is to be accorded an agency's interpretation of a statute the agency administers and the interpretation should be upheld when it is within the range of permissible interpretations. Public Employees Relations Comm'n v. Dade County Police Benevolent Ass'n., 467 So. 2d 987 (Fla. 1985); Board of Podiatric Medicine v. Florida Medical Association, 779 So. 2d 658 (Fla. 1st DCA 2001). The DCA's interpretation of Section 163.3213(5)(a), Florida Statutes, as requiring a hearing

    to be requested within 21 days of a DCA determination, is a permissible interpretation of the statute.

24. Petitioners knew that Section 120.569(1), Florida Statutes, required the DCA to inform them of the applicable time limit for filing their petition, and they admit they were informed by the DCA that the applicable time limit was 21 days from the date of the DCA Determination.

25. Twenty-one days from the DCA Determination at issue in this case was January 12, 2006. Therefore, Petitioners' request for a hearing filed with DOAH on January 17, 2006, was untimely.

26. The doctrine of equitable tolling has been applied to cure an otherwise untimely petition for administrative hearing under certain circumstances. The leading case on equitable tolling is Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988), which held that the doctrine applies when a plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely filed in the wrong forum. Id. at 1134.

27. Petitioners do not claim, and there are no facts in the record to support a claim, that Petitioners have in some extraordinary way been prevented from asserting their rights, or that they timely filed their petition in the wrong forum. Equitable tolling, if applicable at all in this case, must be

    based on Petitioners' having been misled or lulled into inaction by the statements made to Petitioner Brown by Mr. Williams.

28. Respondents argue that the doctrine of equitable tolling is not applicable when the prospective petitioner was not misled or lulled into inaction by an adversarial party, but by a "facilitating agency" such as DOAH. This argument is not persuasive, because it was explained in Machules that the doctrine focuses on the plaintiff's excusable ignorance and the lack of prejudice to defendant. Id. The doctrine does not focus on the misconduct of the defendant. Furthermore, Respondents' argument is contradicted by the applicability of equitable tolling when a petition is timely filed in the wrong forum, which involves no fault of an adversarial party.

29. The court in Machules ruled that lack of prejudice to the defendant is an important consideration in determining whether the doctrine of equitable tolling should be applied. Id. No cognizable prejudice was shown by Respondents in this case. The prejudice that Respondents claim they would suffer if the untimeliness of the petition were excused--the time and expense of litigating issues raised in the petition--is not the kind of prejudice that can defeat equitable tolling, because litigating a case that would otherwise be dismissed is the natural result of every application of equitable tolling.

30. As the parties asserting the applicability of equitable tolling to overcome the waiver of their right to a hearing, Petitioners have the burden to prove by a preponderance of the evidence the existence of factors that justify application of the doctrine. See, e.g., Department of Environmental Regulation 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); Patz v. Department of Health, 864 So. 2d 79 (Fla. 3d DCA 2003).

31. In order to meet their burden of proof, Petitioners must show that Mr. Williams' statements to Petitioner Brown would have misled or lulled a reasonable person into inaction. In this case, Petitioners never described precisely the statements made by Mr. Williams upon which they relied. Petitioner Brown stated that she called DOAH to "ensure that [she] was interpreting the rules correctly." If she asked Mr. Williams whether she was interpreting Rule 28-106.111(2)

    correctly as requiring, unless otherwise provided by law, that a request for hearing be filed within 21 days of receipt of written notice of the agency decision, his confirmation of that interpretation would not have been misleading.

32. Petitioners did not allege that Mr. Williams made an unambiguously misleading statement to Petitioner Brown such as, "Under Section 163.3213(5)(a), Florida Statutes, a hearing can

    be requested within 21 days of your receipt of written notice of the DCA determination"; or, "The Notice of Rights in the DCA determination is inaccurate because Rule 28-106.111(2) allows you to file the petition with DOAH within 21 days of your receipt of written notice of the DCA determination."

33. Petitioners failed to meet their burden of proof because they did not prove that Mr. Williams made statements that would have misled a reasonable person to file a petition after the deadline indicated in the applicable statute and stated in the agency order.

34. Petitioners argue that excusable neglect, in addition to the three factors articulated in Machules, also justifies the tolling of the filing deadline. However, after Section 120.569(2)(c), Florida Statutes, was amended in 1998 to state, "A petition shall be dismissed if it . . . has been untimely filed," excusable neglect is no longer sufficient to toll a filing deadline for a point of entry into an administrative proceeding. See Patz, supra; Whiting v. Florida Department of

    Law Enforcement, 849 So. 2d 1149 (Fla. 5th DCA 2003); Cann v. Department of Children and Family Services, 813 So. 2d 237 (Fla. 2d DCA 2002); Jancyn Mfg. Corp. v. Department of Health, 742 So. 2d 473 (Fla. 1st DCA 1999).

35. Moreover, the facts of this case do not demonstrate that the untimely filing of the petition was based on reasonable

    error. The DCA Determination notified Petitioners that they had to request a hearing "within 21 days after the date of this determination" and it was dated December 22, 2006. Petitioners knowingly ignored the deadline stated in the agency decision they intended to challenge. They knew that the date they filed the petition was after the deadline stated in the DCA Determination.

36. In Machules, it was stated that the doctrine of equitable tolling protects the "reasonably prudent" plaintiff.

523 So. 2d at 1134. In this case Petitioners did not exhibit reasonable prudence when they requested a hearing on a date they knew was later than the deadline set forth in the Notice of Rights in the DCA order they intended to challenge.

ORDER

Because the petition in this case was untimely filed and the factors that could justify equitable tolling were not proven, it is

ORDERED that the petition is hereby dismissed and DOAH's file is closed.

DONE AND ORDERED this 6th day of April, 2006, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 6th day of April, 2006.

ENDNOTES

1/ All references to the Florida Statutes are to Florida Statutes (2005).

2/ All references hereafter to a "Rule" are to a current rule of the Florida Administrative Code.

COPIES FURNISHED:

Terrell K. Arline, Esquire Terry K. Arline, Attorney at Law 3205 Brentwood Way

Tallahassee, Florida 32309

Diane C. Brown

241 Twin Lakes Drive

Laguna Beach, Florida 32413

Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Gary K. Hunter, Jr., Esquire Hopping, Green & Sams

Post Office Box 6526 Tallahassee, Florida 32314-6526

Thaddeus Cohen, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

David Jordon, General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 06-000182GM

Orders for Case No: 06-000182GM