96-003238 Legal Environmental Assistance Foundation, Inc. (No. Uo52-256414; Ogc No. 92-0094) vs. Pinellas County And Department Of Environmental Protection Status: Closed Recommended Order on Friday, November 1, 1996.

Summary: Legal Environmental Assistance Foundation (LEAF) petition timely but LEAF has no standing; no substantial interest and as foreign corporation not a citizen for 403.412(5). Ruhl a citizen but petition too late

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEGAL ENVIRONMENTAL )

ASSISTANCE FOUNDATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3238

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, and PINELLAS COUNTY, )

)

Respondents. )

___________________________________)

)

LEGAL ENVIRONMENTAL )

ASSISTANCE FOUNDATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3239

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, and PINELLAS COUNTY, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER OF DISMISSAL

These cases were consolidated and scheduled for final hearing before J.

Lawrence Johnston, Administrative Law Judge, Division of Administrative

Hearings, on November 18-22, 1996, in Largo, Florida. But they also were called

up for three separate motion hearings conducted in Tallahassee, Florida, on

three rounds of motions in opposition filed by Pinellas County and, on the third

round, joined by the DEP. As a result of the rulings on these motions in

opposition, final hearing is cancelled, and it is recommended that these cases

be dismissed with prejudice.

FIRST TWO ROUNDS OF PETITIONS AND MOTIONS IN OPPOSITION

1. When these cases were referred to the Division of Administrative

Hearings (DOAH), Pinellas County's Motion in Opposition to Petition for Formal

Hearing filed in each of the cases also were referred. A hearing on the motions

in opposition was scheduled on September 3, 1996.

2. Neither of the other parties responded in writing to the motions in

opposition, but on August 27, 1996, the Petitioner (LEAF) filed in each case a

Motion for Leave to Amend Initial Pleading (with copy of proposed amended

petition) intended "to address some of the issues raised by Respondent Pinellas

County's Motion in Opposition."

3. Pinellas County was not prepared to address LEAF's new filings by

September 3, and the parties chose to proceed with the motion hearing on

September 3 and obtain a ruling on the motions in opposition directed to the

initial petitions notwithstanding LEAF's subsequent filings. Pinellas County

was given until September 17, 1996, in which to file written responses to LEAF's

Motion for Leave to Amend Initial Pleading filed in each of these cases.

4. Subsequently, the County requested that the ruling on the motions in

opposition directed to the initial petitions be deferred until after the

County's filings and LEAF's responses to them. As a result, LEAF's Motion for

Leave to Amend Initial Pleading filed in each of these cases essentially were

treated as having been granted.

5. The County's motions in opposition to the amended petitions were filed

on September 17, 1996, and another hearing was scheduled for October 3, 1996, on

all of the pending motions.

RULING ON FIRST TWO ROUNDS OF MOTIONS IN OPPOSITION

6. The first two rounds of motions in opposition raised essentially two

issues: the timeliness of the initial petitions; and LEAF's standing.

Timeliness

7. The facts were clear that legal notice of DEP's notices of intent to

issue Pinellas County's deep well injection operation permits and related

consent orders was given by publication in a newspaper of general circulation on

May 13, 1996, and allowed 21 days (until June 3, 1996) for the filing of

petitions for administrative proceedings. LEAF alleged that it received actual

notice on May 30, 1996.

8. On June 3, 1996, LEAF faxed to the office of DEP's Secretary requests

for 30-day extensions of time in which file petitions for administrative

proceedings. The requests asserted that they were authorized by F.A.C. Rule 62-

103.070 and warranted because LEAF did not receive written notice of certain

preliminary proceedings as required under F.A.C. Rule 62-528.315. No copy of

either request was served on Pinellas County.

9. On June 20, 1996, DEP entered an Order Granting Request for Extension

of Time to File Petition for Hearing until June 24, 1996, as to each case. No

copy of either order was served on Pinellas County. LEAF's initial amended

petitions were filed on June 24, 1996.

10. Pinellas County's motions in opposition argued that dismissal is

required because: (1) under Section 403.815, Fla. Stat. (1995), there is no

authority for DEP to extend the time to file a petition for administrative

proceedings; (2) F.A.C. Rule 62-103.070, authorizing requests for extensions of

time in which to file petitions for administrative proceedings, was repealed on

December 31, 1995, eliminating any authority there might have been for granting

the requests for extensions of time; and (3) equitable tolling should not apply

under Section 403.815 and facts of this case.

Section 403.815 provides in pertinent part:

. . . Notwithstanding any provision of s.

120.60, the department may publish or by

rule require the applicant to publish, or

the applicant may elect to publish, in a

newspaper of general circulation in the area

affected, notice of proposed agency action

on any permit application submitted under

this chapter or chapter 253. The department

shall require the applicant for a permit to

construct or expand a solid waste facility to

publish such notice. The notice of proposed

agency action shall be published at least 14

days prior to final agency action. . . .

Within 14 days after publication of notice

of proposed agency action, any person whose

substantial interests are affected may

request a hearing in accordance with s.

120.57. The failure to request a hearing

within 14 days after publication of notice

of proposed agency action constitutes a

waiver of any right to a hearing on the

application under s. 120.57.

It is the County's position that no extensions of time for filing petitions for

administrative proceedings are allowed under this statute.

11. It is true that this statute confers on an applicant a procedural

benefit in return for the burden, if placed on the applicant as it was in this

case, of publishing notice--i.e., "failure to request a hearing within 14 days

after publication of notice of proposed agency action constitutes a waiver of

any right to a hearing on the application under s. 120.57." But it does not

necessarily follow that this statute precludes all possibility of an extension

of time. Indeed, the published notice itself extended the 14-day deadline

established in the statute for filing petitions to 21 days. (It was not clear

why 21 days were given. Cf. F.A.C. Rules 62-528.315(10), 62-103.150(2), and

62-103.155(3)(a).)

12. The County also argued that, even if Section 403.815 does not

completely preclude the possibility of extensions of time for filing petitions,

the repeal of F.A.C. Rule 62-103.070 eliminated the authority for any further

extension beyond the 21 days provided in the published notice of intent.

13. According to Vol. 21, No. 43, Fla. Admin. Weekly, p. 7460-7461, Oct.

27, 1995, this rule was repealed as part of the Governor's rules reduction

initiative, Exec. Order 95-74, dated Feb. 27, 1995, after having been identified

either as being "obsolete" or as being "procedural or organizational." (The

other category of rules to be repealed under the initiative--rules that merely

tracked statutory language--would not apply to Rule 62-103.070.) The rationale

for repeal of Rule 62-103.070 does not reflect any intention to strengthen

Section 403.815's waiver provision or to abrogate any discretionary authority

the agency might have to extend procedural deadlines. To the contrary, the

stated rationale would suggest a determination that no rule was necessary to

authorize extensions of time. Cf. also Frank's Texaco v. Dept. of Environmental

Reg., 590 So.2d 520 (Fla. 3d DCA 1991)(a request for extension of time to file a

petition constitutes an "initial pleading" under F.A.C. Rule 17-103.050 [now 62-

103.050]).

14. Even given a statute like Section 403.815, the case law seems clear

that 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). It follows logically

that if the time to file petitions for administrative proceedings can be

extended under the doctrine of equitable tolling, an agency also has the

inherent authority to grant a reasonable extension of time, even without a rule

like Rule 62-103.070. Cf. also Frank's Texaco, supra.

15. It was recognized that the time limitation in this case was

established by statute, while those in the cases cited in the preceding

paragraph were established by agency rule. However, the Machules case law

likens those rule limitations to statutes of limitations. In addition, in

holding that the rule limitations period at issue in Machules was not

jurisdictional, the court quoted with approval part of the dissent below

stating: "The doctrine [of equitable tolling] serves to ameliorate harsh

results that sometimes flow from a strict, literalistic construction and

application of administrative time limits contained [in statutes and] rules."

[Emphasis added.] Machules, supra, at 1134.

16. It also was recognized that none of the cases in the Machules line

dealt with petitions filed by parties opposing the intended grant of an

application. But it was concluded that, at least in terms of an agency's

authority to extend the filing deadline, the rights of those kinds of

petitioners to administrative proceedings should not be treated as less worthy

than the rights of a denied applicant or a respondent to an agency's

administrative complaint.

17. For these reasons, it was concluded that DEP had the authority to

further extend the Section 403.815 deadline for filing petitions for

administrative proceedings in these cases (beyond the seven-day extension, to 21

days, already given in the published notice) even without Rule 62-103.070 or a

rule substitute for it. Indeed, the case law suggests that it would have been

reversible error for DEP not to have granted a reasonable extension of time.

Cf. Hamilton County Comm'n'rs v. Dept. of Environmental Reg., 587 So.2d 1378,

1390 (Fla. 1st DCA 1991) (error for agency to deny request to extend rule

deadline for filing exceptions to recommended order); Dept. of Environmental

Reg. v. Puckett Oil Co., Inc., 577 So.2d 988 (Fla. 1st DCA 1991) (error for

hearing officer to deny request to extend rule deadline for filing responsive

pleadings).

18. Even if there were no authority for the DEP to grant the requests to

extend the time for filing LEAF's petitions in this case, it was concluded that

the County's motions in opposition could not have been granted without a hearing

to determine whether the Machules doctrine of equitable tolling should be

invoked under the facts of this case. Cf. Castillo v. Dept. of Admin., Div. of

Retirement, supra. This is not a case like Environmental Resource Associates of

Florida, Inc., v. Dept. of General Services, 624 So.2d 330,331 (Fla. 1st DCA

1993), in which there was "nothing extraordinary in the failure to timely file,"

but rather only the "too ordinary occurrence of a party's attorney failing to

meet a filing deadline." The record in this case suggested initially that,

notwithstanding legally adequate notice by publication, LEAF's entitlement to

receipt of mailed written notice as required by F.A.C. Rule 62-528.315(6)(a)5

may have led LEAF to be less vigilant to notice by publication. In addition,

the record suggested that conversations between counsel for LEAF and counsel for

DEP may have led LEAF to believe that its requests for extensions were

authorized, whether they were or not, and that LEAF chose to request extensions

of time, instead of filing petitions, in reliance on the suggestions of counsel

for DEP. Finally, there did not seem to be any legally sufficient prejudice to

the County. If LEAF had filed insufficient petitions just to beat the 21-day

deadline given in the published notice, instead of requesting extensions of

time, DEP would have had to "issue an order dismissing the petition with leave

to file an amended petition . . . within 15 days" under F.A.C. Rule 62-

103.155(5). (The County's suggestion that it was prejudiced by the failure to

strictly enforce the literal terms of Section 403.815 was rejected in the

context of the doctrine of equitable tolling.)

Standing

19. LEAF conceded during the hearing on September 3, 1996, that, except

for purposes of its Issue 1, the allegations of standing in the initial

petitions were insufficient.

20. As to its Issue 1, LEAF alleged that it was an "interested person" who

asked for and, under F.A.C. Rule 62-528.315, was entitled to be mailed a copy of

the published notice of draft permit, draft consent order, and public meeting

(if any). LEAF argued that those allegations were sufficient to establish that

its "substantial interests will be affected by proposed agency action." Section

120.52(12)(b), Fla. Stat. (1995). LEAF's argument was rejected, and it was

concluded that LEAF's allegations of standing also were insufficient as to Issue

1.

21. LEAF's amended petitions attempted to allege standing under Section

403.412(5), Fla. Stat. (1995). That statute gives "citizens of the state . . .

standing upon the filing of a verified pleading." See Manasota-88, Inc., v.

Dept. of Environmental Reg., 441 So.2d 1109 (Fla. 1st DCA 1983)(in which the

court equated the standing given under this statute to intervene as a party with

the right to file a petition initiating formal administrative proceedings).

But it was concluded that LEAF is not a Florida corporation and is not a

"citizen of the state." Contrast Cape Cave Corp. v. Dept. of Environmental

Reg., 498 So.2d 1309 (Fla. 1st DCA 1989), rev. denied, 509 So.2d 542 (Fla.

1989)(ECOSWF, a corporation organized under the laws of the State of Florida was

a citizen of the state). No cases could be found in which a corporation

organized under the laws of a state other than Florida has been accorded

standing under Section 403.412(5), Fla. Stat. (1995). It was concluded that the

allegations in the amended petitions--that "LEAF is a nonprofit membership

corporation authorized to do business in Florida," that it maintains offices in

Tallahassee, Florida" and that "[a] substantial number of the members of LEAF

are citizens of the State of Florida"--were insufficient to confer standing

under Section 403.412(5). It also was concluded that representational or

associational standing is not available under Section 403.412(5).

Leave to File Second Amended Petitions

22. Based on the foregoing conclusions of law, an Order Dismissing

Petitions with Leave to Amend was entered on October 7, 1996. Among other

things, it: (1) denied the motion to dismiss for lack of jurisdiction based on

untimeliness contained in Pinellas County's Motion in Opposition to Amended

Petition to Intervene in Licensing and Administrative Proceeding and for Formal

Administrative Hearing filed in each of these cases; and (2) granted the motion

to dismiss for lack of standing contained in Pinellas County's Motion in

Opposition to Amended Petition to Intervene in Licensing and Administrative

Proceeding and for Formal Administrative Hearing filed in each of these cases

with leave to amend within ten days if there were any valid grounds for standing

under Chapter 120, Florida Statutes.

THIRD ROUND OF PETITIONS AND MOTIONS IN OPPOSITION

23. No second amended petition was filed by October 17, 1996, and the

County filed a Motion in Opposition to Petitions Requesting Closing of File on

October 22, 1996.

24. On the same day, October 22, 1996, LEAF filed a Second Amended

Petition to Intervene in Licensing and Administrative Proceeding and for Formal

Administrative Hearing in each of these cases. In the second amended petitions,

LEAF made no allegation of standing under Chapter 120, Florida Statutes.

Instead, LEAF cited Section 607.1505(2), Fla. Stat. (1995), and alleged that, as

a foreign corporation with a certificate of authority to transact business in

the State of Florida, LEAF has "the same rights and privileges as a domestic

corporation of like character." In addition, an individual member of LEAF, B.

Suzi Ruhl, sought to join as a petitioner and alleged that she has standing

under Section 403.412(5), Fla. Stat. (1995).

25. On October 23, 1996, the County filed a Motion in Opposition to Second

Amended Petition to Intervene in Licensing and Administrative Proceeding and for

Formal Administrative Hearing. This time, DEP joined in the motion. This

motion in opposition pointed out that LEAF made no allegation of standing under

Chapter 120, Florida Statutes, and argued that LEAF's rights under Section

607.1505(2), Fla. Stat. (1995), did not include the right to file a petition

under Section 403.412(5), Fla. Stat. (1995). It also argued that Ruhl's attempt

to join as a petitioner was too late under Section 403.815, Fla. Stat. (1995).

A hearing was held on this motion in opposition on October 30, 1996.

RULING ON THIRD ROUND OF PETITIONS AND MOTIONS IN OPPOSITION

26. It is concluded that LEAF's rights under Section 607.1505(2), Fla.

Stat. (1995), do not include the right to file a petition under Section

403.412(5), Fla. Stat. (1995). As previously ruled, the right to file a

petition under Section 403.412(5) is limited to citizens of the State of

Florida. For a corporation to be a citizen of the State of Florida, it must be

a Florida corporation. Cf. Nat'l Rifle Ass'n of Amer. v. Linotype Co., 591

So.2d 1021 (Fla. 3d DCA 1991)(a foreign corporation authorized to do business in

Florida is not a "resident" for purposes of forum non conveniens).

27. As for the attempt by B. Suzi Ruhl to join as a petitioner, it clearly

is long after the time allowed under Section 403.815, Fla. Stat. (1995). At the

hearing on October 30, LEAF and Ruhl argued that LEAF represents its members,

such as Ruhl, and that Ruhl is the real party in interest. They cited Jefferson

Realty of Ft. Lauderdale, Inc., v. U.S. Rubber Co., 222 So.2d 738 (Fla. 1941),

and Puleston v. Alderman, 4 So.2d 704 (Fla. 1941), in support of their argument.

28. Of the two cited authorities, only Puleston v. Alderman dealt with the

timeliness of the addition of the real party in interest; Jefferson Realty only

dealt with the propriety of joining the real party in interest. In Puleston v.

Alderman, an order was entered under antiquated rules of procedure with

technical pleading requirements which simultaneously sustained a demurrer

attacking the original pleading filed by "Camilla Puleston, by Her Husband and

Next Friend, S. Puleston" and allowed an amendment of the declaration "to show

that the suit was brought by 'Camilla Puleston, joined by her husband, S.

Puleston.'" Id. at 705. Later, the trial court held that the suit was barred

by statute of limitations because, although the original suit was brought within

the statute of limiations, the amended declaration was not. On appeal, the

Supreme Court reversed, holding that the amendment related back to the original

pleading because "there was no substitution but simply the joining of the wife

in the suit [which had already been started by the husband in her behalf]."

[Emphasis added.] Id. at 706.

29. In contrast to Puleston v. Alderman, it is clear from the allegations

in the first two rounds of petitions in these cases that LEAF was the real party

in interest and that there was no attempt to petition on behalf of Ruhl. As

previously ruled, representational or associational standing is not available to

LEAF under under Section 403.815, Fla. Stat. (1995). For that reason, it is

concluded that B. Suzi Ruhl's attempt to join as a petitioner at this time

constitutes an attempt by her to file a new petition which is untimely under

Section 403.815, Fla. Stat. (1995).

RECOMMENDATION

Based on the foregoing, it is recommended that the Department of

Environmental Protection enter a final order dismissing, with prejudice, the

Second Amended Petition to Intervene in Licensing and Administrative Proceeding

and for Formal Administrative Hearing filed in each of these cases by LEAF and

B. Suzi Ruhl.

RECOMMENDED this 1st day of November, 1996, at Tallahassee, Florida.

___________________________________

J. LAWRENCE JOHNSTON,

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of November, 1996.

COPIES FURNISHED:

David A. Ludder, Esquire

Legal Environmental Assistance Foundation, Inc.

1115 North Gadsden Street

Tallahassee, Florida 32303

Cynthia K. Christen, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

C. Anthony Cleveland, Esquire

Segundo J. Fernandez, Esquire

Oertel, Hoffman, Fernandez and Cole

Post Office Box 6507

Tallahassee, Florida 32314-6507

Virginia B. Wetherall, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom

General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the

date of this Recommended Order of Dismissal. Any exceptions to this Recommended

Order of Dismissal should be filed with the agency that will issue the final

order in this case.