07-004611 Mel Bryant, Diane Bryant And Brent Mahieu vs. City Of Port St. Lucie And Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, November 20, 2007.


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Summary: Inaccurate statements by the applicant for a permit to Petitioners did not constitute a circumstance that would invoke equitable tolling. The Petition is dismissed as untimely.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MEL AND DIANE BRYANT and )

14BRENT MAHIEU, )

17)

18Petitioners, )

20)

21vs. ) Case No. 07-4611

26)

27CITY OF PORT ST. LUCIE and )

34DEPARTMENT OF ENVIRONMENTAL )

38PROTECTION, )

40)

41Respondents. )

43_______________________________ )

45RECOMMENDED ORDER OF DISMISSAL

49This matter came before the undersigned on Respondent City

58of Port St. Lucie's (City's) Motion to Dismiss with Incorporated

68Memorandum of Law (Motion) filed on October 26, 2007. A Notice

79of Filing Case Law in Support of its Motion to Dismiss was also

92filed by the City on November 7, 2007. By its Motion, the City

105seeks to dismiss Petitioners' Amended Petition on the ground it

115was untimely filed. It further argues that under the

124circumstances presented here, the doctrine of equitable tolling,

132upon which Petitioners rely, does not apply. (The doctrine of

142equitable tolling may be used as a defense to the untimely

153filing of a petition. See § 120.569(2)(c), Fla. Stat. (2006).)

163A Response in opposition to the Motion was filed by Petitioners

174on November 1, 2007. Respondent, Department of Environmental

182Protection (Department), has not stated its position on the

191Motion. However, in its Order Dismissing Petition with Leave to

201Amend (Order) dated September 14, 2007, the Department dismissed

210the initial Petition without prejudice to Petitioners' "filing

218an amended petition which shows why the Petition dismissed in

228this order should be considered timely." The basis for the

238dismissal was that "the City published notice [on July 6, 2007]

249in the Palm Beach Post, charging Petitioners with constructive

258notice . . . , and establishing a deadline [July 20, 2007)] for

270a Petition to be filed." Because the initial Petition was not

281filed until July 27, 2007, or seven days after the deadline, it

293was deemed to be untimely. For the reasons stated below, the

304Motion should be granted and the Amended Petition dismissed,

313with prejudice, on the ground the initial Petition was untimely

323filed.

324This case involves the proposed issuance by the Department

333of two construction permits to the City, which generally

342authorize the modification and expansion of the capacity of the

352City's Westport Wastewater Treatment Plant from 3.93 million

360gallons per day (mgd) to 6.24 mgd. (Each permit provides an

371option for the City to expand its facility; the City may choose

383either option.) Petitioners, who live near the plant, oppose

392the expansion because of "odor emanating from the plant" in

402violation of Florida Administrative Code Rule 62-600.400(2)(a).

409The Order, Amended Petition, Motion, Response, and

416attachments thereto reflect the following undisputed material

423facts. On April 11, 2007, Petitioners met with certain City

433officials, including the City Manager, who advised them that

"442all permits for the expansion of the plant from its current

453capacity of 3.93 mgd to the planned capacity of 6.24 mgd had

465been approved and obtained and that the only permit still

475required to be obtained was the operational permit which would

485be obtained after construction was completed"; and "that there

494was nothing that [Petitioners] could do to stop the expansion of

505the plant to 6.24 mgd." Affidavits in support of this

515allegation are attached to the Amended Petition. The City

524denies these statements were made, but for purposes of its

534Motion, has accepted this allegation as being true. On June 26,

5452007, the Department issued its Notice of Intent to Issue Permit

556(Notice). Although they had the right to do so, Petitioners did

567not request that they receive separate written notice from the

577Department when action on the City's applications was taken. On

587July 6, 2007, the City published a copy of the Notice in the

600Palm Beach Post , St. Lucie Edition . The Notice provided, inter

611alia , that petitions challenging the issuance of the permits

620must be filed within fourteen days from the date of the

631publication, or by July 20, 2007; otherwise, a point of entry

642would be waived. See Fla. Admin. Code R. 62-110.106(2).

651Pursuant to a public records request, on July 13, 2007,

661Petitioners and their counsel met with City representatives to

670review certain City files relating to the facility in question.

680Among the documents reviewed was a copy of the Department's

690Notice dated June 26, 2007. On July 27, 2007, or fourteen days

702later and seven days past the deadline in the published Notice,

713Petitioners filed their initial Petition. An Amended Petition

721was later filed on September 28, 2007, in response to the

732Department's Order dismissing the initial pleading. The matter

740was referred to the Division of Administrative Hearings on

749October 8, 2007. The Motion was filed on October 26, 2007, and

761Petitioners' Response thereto on November 1, 2007.

768Petitioners acknowledge that their initial Petition was not

776filed within fourteen days after the date of publication of the

787Notice. They contend, however, that they were misled and lulled

797into inaction by the statements made to them by the City Manager

809on April 11, 2007. Without specifically saying so in their

819Amended Petition and Response, Petitioners apparently contend

826that the City Manager misled them by indicating that a

836construction permit had already been issued in April 2007 when

846in fact the City's applications were still pending before the

856Department. They further contend that the statements made by

865the City Manager create sufficient circumstances to invoke the

874doctrine of equitable tolling, thereby excusing their untimely

882filing. Therefore, they argue that the filing of a petition on

893July 27, 2007, or fourteen days after they received actual

903notice, was timely.

906The doctrine of equitable tolling will be applied "when the

916plaintiff has been misled or lulled into inaction, has in some

927extraordinary way been prevented from asserting his rights, or

936has timely asserted his rights mistakenly in the wrong forum."

946Machules v. Department of Administration , 523 So. 2d 1132, 1134

956(Fla. 1988). Virtually every reported administrative decision

963involving this doctrine, and particularly those where affected

971persons have relied on the first circumstance, has arisen out of

982a claim that the agency, as opposed to another party in the

994case, has misled or lulled the affected person into not filing a

1006request for a hearing in a timely fashion. In this case, there

1018is no assertion that the Department engaged in this type of

1029conduct; rather, Petitioners assert that the permit applicant

1037(the City) made the misleading statements. Without deciding the

1046issue, for purposes of resolving the Motion, the undersigned has

1056assumed that, if appropriate circumstances are present, the

1064doctrine can still be invoked under this unusual scenario. (In

1074their filings, the parties have not addressed this issue.)

1083When there are disputed facts concerning the applicability

1091of the doctrine, an evidentiary hearing on that narrow issue is

1102required. See , e.g. , Brown v. Department of Financial Services ,

1111899 So. 2d 1296 (Fla. 4th DCA 2005). Because the parties have

1123raised no disputed issues of material fact that require

1132resolution, the matter can be resolved based on the parties'

1142filings. (As noted above, although the City denies that the

1152statements were made by the City Manager, for purposes of its

1163Motion, it accepts them as being true.)

1170Assuming that the City Manager made the alleged statements,

1179they occurred almost three months before the Department actually

1188proposed to issue a permit and a notice was published by the

1200City in a local newspaper. Significantly, the statements did

1209not prevent Petitioners (or their counsel) from receiving

1217constructive notice of the agency's action through the

1225publication of the Notice on July 7, 2007. ("Receipt of notice

1237of agency action" means "publication of the notice in a

1247newspaper of general circulation in the county . . . in which

1259the activity will take place." Fla. Admin. Code R. 62-

1269110.106(2).) Nor did it bar them from contacting the Department

1279to request an enlargement of time to file a petition after they

1291received actual notice of the issuance of the permit on July 13,

13032007. Fla. Admin. Code R. 62-110.106(4). Indeed, except for

1312the unilateral filing of the initial Petition on July 27, 2007,

1323nothing in the parties' filings indicate that Petitioners ever

1332contacted the Department for any advice regarding the pending

1341applications or when a petition should be filed. Given these

1351undisputed facts, none of the three circumstances described in

1360Machules exist, and as a matter of law, the doctrine of

1371equitable tolling does not apply. Because Petitioners received

1379constructive notice of the Department's action on July 7, 2007,

1389and were required to file their petition within fourteen days

1399thereafter, or by July 21, 2007, the initial Petition was

1409untimely filed. Fla. Admin. Code R. 62-110.106(3)(b).

1416Therefore, the City's Motion to Dismiss should be granted and

1426the Amended Petition dismissed. Because Petitioners have been

1434given one opportunity to amend their pleadings as to this issue,

1445the dismissal should be with prejudice.

1451In both their Response and Amended Petition, Petitioners

1459point out that the City's notice was published in a newspaper

1470(Palm Beach Post , Port St. Lucie Edition ) having a smaller

1481circulation than the local newspaper (Port St. Lucie News ).

1491They also point out that the City chose to publish only the

1503Department's Notice in the Palm Beach Post , while it published

1513numerous other City notices during that same time period in the

1524Port St. Lucie News , which has a much wider circulation in the

1536City. While Section 403.815, Florida Statutes (2006), requires

1544that such notices be published in a newspaper of general

1554circulation, there is no assertion here that the Palm Beach

1564Post , St. Lucie Edition is not a newspaper of general

1574circulation as defined by Sections 50.011 and 50.031, Florida

1583Statutes (2006). Therefore, while somewhat unusual, the fact

1591that the City chose to use one newspaper of general circulation

1602for one notice, and another newspaper of general circulation for

1612a number of other notices, does not render the notice here

1623insufficient or raise a factual issue requiring an evidentiary

1632hearing. See , e.g. , Thomas v. Department of Environmental

1640Protection et al. , Case No. 94-2800 (DOAH May 4, 1995, DEP June

165216, 1995) 1995 Fla. ENV LEXIS 50 at *27 (there is no obligation

1665on the permittee to determine the "best" publication for its

1675notice).

1676Finally, Petitioners' only concern in challenging the

1683permit is a contention that since it began operations several

1693years ago, the existing plant has been emanating odors in

1703violation of Florida Administrative Code Rule 62-600.400(2)(a),

1710and that issuance of the new permit will only compound the

1721existing problem. (For example, the last sentence of their

1730Amended Petition requests that besides denying the applications

"1738the Department enforce compliance with [the rule].") For the

1748benefit of Petitioners, they are reminded that requests for

1757enforcement action (such as requiring a licensee to comply with

1767a rule) must be directed to the Department through a separate

1778filing, rather than raised as an issue in a licensing case.

1789See , e.g. , Associated Home Health Agency, Inc. v. State

1798Department of Health and Rehabilitative Services et al. , 453 So.

18082d 104, 106 (Fla. 1st DCA 1984). The dismissal of their Amended

1820Petition does not bar such a filing.

1827Based on the foregoing findings of fact and conclusions of

1837law, it is

1840RECOMMENDED that the Department of Environmental Protection

1847enter a final order granting the City's Motion to Dismiss and

1858dismissing, with prejudice, the Petitioners' Amended Petition on

1866the ground it was untimely filed.

1872DONE AND RECOMMENDED this 20th day of November, 2007, in

1882Tallahassee, Leon County, Florida.

1886S

1887DONALD R. ALEXANDER

1890Administrative Law Judge

1893Division of Administrative Hearings

1897The DeSoto Building

19001230 Apalachee Parkway

1903Tallahassee, Florida 32399-3060

1906(850) 488-9675 SUNCOM 278-9675

1910Fax Filing (850) 921-6847

1914www.doah.state.fl.us

1915Filed with the Clerk of the

1921Division of Administrative Hearings

1925this 20th day of November, 2007.

1931COPIES FURNISHED:

1933Lea Crandall, Agency Clerk

1937Department of Environmental Protection

19413900 Commonwealth Boulevard

1944Mail Station 35

1947Tallahassee, Florida 32399-3000

1950Mel and Diane Bryant

1954356 Southwest Panther Trace

1958Port St. Lucie, Florida 34953-8201

1963Brent Mahieu

1965352 Southwest Panther Trace

1969Port St. Lucie, Florida 34953-8201

1974Theresa J. Fontana, Esquire

1978Assistant City Attorney

1981121 Southwest Port St. Lucie Boulevard

1987Port St. Lucie, Florida 34984-5042

1992Ronald W. Hoenstine, III, Esquire

1997Department of Environmental Protection

20013900 Commonwealth Boulevard

2004Mail Station 35

2007Tallahassee, Florida 32399-3000

2010NOTICE OF RIGHT TO FILE EXCEPTIONS

2016All parties have the right to submit written exceptions within

202615 days from the date of this Recommended Order of Dismissal.

2037Any exceptions to this Recommended Order of Dismissal should be

2047filed with the agency that will render a final order in this

2059matter.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/19/2008
Proceedings: Final Order filed.
PDF:
Date: 02/15/2008
Proceedings: Agency Final Order
PDF:
Date: 11/20/2007
Proceedings: Recommended Order
PDF:
Date: 11/20/2007
Proceedings: Recommended Order of Dismissal. CASE CLOSED.
PDF:
Date: 11/08/2007
Proceedings: Notice of Filing Order Dismissing Petition with Leave to Amend by Respondent Department of Environmental Protection.
PDF:
Date: 11/07/2007
Proceedings: City of Port St. Lucie`s Notice of Filing Case Law in Support of its Motion to Dismiss filed.
PDF:
Date: 11/02/2007
Proceedings: Petitioners` Response to Respondent City of Port St. Lucie`s Motion to Dismiss with Incorporated Memorandum of Law filed.
PDF:
Date: 10/26/2007
Proceedings: Respondent, City of Port St. Lucie`s Motion to Dismiss with Incorporated Memorandum of Law filed.
PDF:
Date: 10/17/2007
Proceedings: Department of Enviromental Protection`s Response to Initial Order filed.
PDF:
Date: 10/16/2007
Proceedings: Notice of Appearance (filed by T. Fontana).
PDF:
Date: 10/09/2007
Proceedings: Initial Order.
PDF:
Date: 10/08/2007
Proceedings: Notice of Permit Revision filed.
PDF:
Date: 10/08/2007
Proceedings: Intent to Issue filed.
PDF:
Date: 10/08/2007
Proceedings: Petition for Administrative Proceeding filed.
PDF:
Date: 10/08/2007
Proceedings: Amended Petition filed.
PDF:
Date: 10/08/2007
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
10/08/2007
Date Assignment:
10/09/2007
Last Docket Entry:
02/19/2008
Location:
Port St. Lucie, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

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