96-004737 Donald Flynn And Beverly Flynn vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, December 12, 1997.

Summary: Equitable considerations mandated that petition filed nine days late not be dismissed on the grounds of untimeliness.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD FLYNN AND BEVERLY FLYNN, )

)

Petitioners, )

)

vs. ) CASE NO. 96-4737

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, an evidentiary hearing on Respondent's

Motion to Dismiss was conducted in this case on December 3, 1996,

(by telephone conference call) before Stuart M. Lerner, a duly

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Harry A. Stewart, Esquire

Joan T. Dwoskin, Esquire

Akerman, Senterfitt and Eidson, P.A.

Post Office Box 231

Orlando, Florida 32801

For Respondent: Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioners' petition challenging Respondent's

Consolidated Notice of Denial [of Petitioners' Application for

an] Environmental Resource Permit and Lease to Use Sovereign

Submerged Lands should be dismissed on the ground that it was not

timely filed?

PRELIMINARY STATEMENT

On October 7, 1996, the Department of Environmental

Protection (Department) referred to the Division of

Administrative Hearings (Division) a petition it had received

from Petitioners which challenged the Department's announced

intention to deny Petitioners' application for an environmental

resource permit and a lease to use sovereign submerged lands. On

October 15, 1996, the Department filed with the Division a Motion

to Dismiss Petition and Memorandum of Law in Support Thereof

(Motion). In its Motion, the Department argued that Petitioners'

petition should be dismissed on the ground that it was not timely

filed. On October 16, 1996, the undersigned Administrative Law

Judge issued an order directing Petitioners to file with the

Division, and serve on the Department, a response to the

Department's Motion. Petitioners filed such a response on

October 25, 1996.

On October 28, 1996, the undersigned issued an order

declaring that "it would be inappropriate for [him] to make a

recommendation as to whether Petitioners' petition should be

dismissed on the ground that it was not timely filed without

first conducting an evidentiary hearing on the matter." In the

order, the undersigned announced that such a hearing would be

held, by telephone conference call, on November 21, 1996.

On October 30, 1996, the undersigned issued a Notice of

Hearing in which he advised that, "[i]f a hearing on the merits

of Petitioners' Petition Challenging Consolidated Notice of

Denial of Environmental Resource Permit and Lease to Use

Sovereign Submerged Lands is necessary, it will be held . . . on

February 27 and 28, 1997, beginning at 9:00 a.m., or as soon

thereafter as can be heard."

On November 13, 1996, Petitioners filed an unopposed motion

requesting that the evidentiary hearing on the Department's

Motion be continued. By order issued November 14, 1996,

Petitioners' motion was granted. The hearing was subsequently

rescheduled for December 3, 1996.

The evidentiary hearing on the Department's Motion was held

on December 3, 1996, as scheduled. At the hearing, Petitioners

presented the testimony of three witnesses: Jeff Adair; Victor

Casini; and Keith Skibicki. They also offered three exhibits

(Petitioners' Exhibits 1 through 3) into evidence. All three of

Petitioners' exhibits were admitted by the undersigned. The

Department presented the testimony of two witnesses: Timothy

Rach; and Marion Hedgepeth. In addition, it offered seven

exhibits (Respondent's Exhibits 2 through 8) into evidence. All

seven of the Department's exhibits were admitted by the

undersigned. At the conclusion of the evidentiary portion of the

hearing, the undersigned, on the record, announced that post-

hearing submittals (on the Department's Motion) had to be filed

no later than 20 days after the undersigned's receipt of the

transcript of the hearing, or January 10, 1997, whichever was

later.

On December 6, 1996, the undersigned issued an order in

which he stated the following:

As the parties were notified during the

evidentiary hearing (held December 3,

1996) on Respondent's Motion to Dismiss

(Motion) Petitioners' Petition Challenging

Consolidated Notice of Denial of Environ-

mental Resource Permit and Lease to Use

Sovereign Submerged Lands (Petition),

regardless of the undersigned's ruling on

the Motion, there will not be a Section

120.57(1) hearing on the merits of the

Petition on February 27 and 28, 1997. It

is the undersigned's intention, upon ruling

on the Motion, to relinquish jurisdiction

to Respondent to consider his ruling. 1/

If Respondent determines that the Petition

should not be dismissed and returns the matter

to the Division of Administrative Hearings,

a Section 120.57(1) hearing on the merits of

the Petition will then be scheduled.

The undersigned received the transcript of the evidentiary

hearing on the Department's Motion on January 13, 1997. On

January 30, 1997, Petitioners and the Department filed their

proposed recommended orders. These proposed recommended orders

have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at the evidentiary hearing

on the Department's Motion, and the record as a whole, the

following Findings of Fact are made:

1. In October of 1995, Petitioners, who desired to

construct a single-family, concrete dock in the Hillsboro Canal

(in Broward County, Florida) for their 171-foot yacht and to

perform dredging adjacent to the dock (Project), filed with the

Department a Joint Application for Environmental Resource

Permit/Authorization to Use State Owned Submerged Lands/Federal

Dredge and Fill Permit (Application).

2. In the Application, Petitioners indicated that their

mailing address was:

c/o Flynn Enterprises

676 N. Michigan Ave., Suite 4000

Chicago, IL 60611

Flynn Enterprises, Inc., is a business owned by Petitioner Donald

Flynn.

3. The Application listed "Jeff Adair, Project Manager" of

"Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale,

FL 33309," as the "agent authorized to secure permit" for

Petitioners.

4. The application form that Petitioners used to submit

their Application contained the following signature page:

By signing this application form, I am

applying, or I am applying on behalf of the

applicant, for the permit and any proprietary

authorizations identified above, according to

the supporting data and other incidental

information filed with this application. I

am familiar with the information contained

in this application and represent that such

information is true, complete and accurate.

I understand this is an application and not

a permit, and that work prior to approval

is a violation. I understand that this

application and any permit issued or

proprietary authorization issued pursuant

thereto, does not relieve me of any

obligation for obtaining any other required

federal, state, water management district or

local permit prior to commencement of

construction. I agree, or I agree on behalf

of my corporation, to operate and maintain

the permitted system unless the permitting

agency authorizes transfer of the permit to

a responsible operation entity. I understand

that knowingly making any false statement or

representation in this application is a

violation of Section 373.430, F.S. and 18

U.S.C. Section 1001.

_____________________________________________

Typed/Printed Name of Applicant (if no Agent

is used) or Agent (if one is so authorized

below)

_____________________________________________

Signature of Applicant/Agent Date

_____________________________________________

(Corporate Title if applicable)

AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT

COMPLETES THE FOLLOWING:

I hereby designate and authorize the agent

listed above to act on my behalf, or on

behalf of my corporation, as the agent in the

processing of this application for the permit

and/or proprietary authorization indicated

above; and to furnish, on request, supple-

mental information in support of the appli-

cation. In addition, I authorize the above-

listed agent to bind me, or my corporation,

to perform any requirement which may be

necessary to procure the permit or

authorization indicated above. I understand

that knowingly making any false statement or

representation in this application is a

violation of Section 373.430. F.S. and 18

U.S.C. Section 1001.

_____________________________________________

Typed/Printed Name of Applicant

_____________________________________________

Signature of Applicant Date

_____________________________________________

(Corporate Title if applicable)

Please note: The applicant's original

signature (not a copy) is required above.

PERSON AUTHORIZING ACCESS TO THE PROPERTY

MUST COMPLETE THE FOLLOWING:

I either own the property described in this

application or I have legal authority to

allow access to the property, and I consent,

after receiving prior notification, to any

site visit on the property by agents or

personnel from the Department of Environ-

mental Protection, the Water Management

District and the U.S. Army Corps of Engineers

necessary for the review and inspection of

the proposed project specified in this

application. I authorize these agents or

personnel to enter the property as many times

as may be necessary to make such review and

inspection. Further , I agree to provide

entry to the project site for such agents or

personnel to monitor permitted work if a

permit is granted.

_____________________________________________

Typed/Printed Name

_____________________________________________

Signature Date

_____________________________________________

(Corporate Title if applicable)

5. The name "Jeff Adair" appears on the "Name of Applicant

(if no Agent is used) or Agent (if one is so authorized below)"

line under the first paragraph on the signature page of

Petitioners' Application; however, neither Adair's signature,

nor any other signature, appears on the signature line under this

paragraph.

6. Petitioner Donald Flynn's signature appears on the

signature lines under the second (agent designation and

authorization) and third (access to property) paragraphs on the

page.

7. By letter dated November 17, 1995, the Department

informed Petitioners of the following:

Preliminary evaluation of your project leads

staff to the conclusion that the project as

proposed cannot be recommended for approval.

While this is not final agency action or

notice of intent, it does represent the staff

review of your application based on consider-

able experience in permitting matters. We

are sending you this letter at this stage of

the processing to allow you to assess fully

the further commitment of financial resources

for design dependent on permit issuance. . . .

In summary, please revise plans to: (1)

reduce the amount of dredging; (2) reduce

impacts to natural resources; (3) reduce

the size of the dock; (4) reduce encroachment

on navigational channel; (5) reduce

encroachment on adjacent properties; and

(6) after minimization, offer mitigation

plans that would address the loss of seagrass

in the vicinity (watershed or basin) of the

project site.

Your application is currently "incomplete"

and Final Agency Action will not occur until

a reasonable amount of time is allowed for

the submittal of a revised plan. A

completeness summary has been sent under

separate cover, addressing the items that

are still outstanding. Staff will continue

to process your application in the normal

manner; however, I suggest you contact Tim

Rach of this office . . . to discuss these

possible alternatives regarding your project.

8. The Department's November 17, 1995, letter was addressed

to Petitioners "c/o Jeff Adair, Project Manager, Keith and

Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL

33309-2132," as were subsequent requests for additional

information made by the Department and other correspondence from

the Department concerning the Project.

9. Adair responded to the Department's requests for

additional information and otherwise corresponded and

communicated with the Department on behalf of Petitioners.

10. In July of 1996, Adair participated in a telephone

conference call during which the Department advised him that, if

the Application was not withdrawn, it would be denied.

11. On August 13, 1996, Adair sent the following letter to

the Department concerning the Project:

Pursuant to our recent discussions pertaining

to the proposed mitigation plan and final

review and processing of the Flynn Dock

application, we have been advised via Mr.

Flynn's attorney not to withdraw the

application. Therefore, we await the

Department's final decision relative to the

permittability of this project. As you have

indicated, we are anticipating the Depart-

ment's response toward the end of this month.

In making your decision, we strongly urge

you to consider the merits or our innovative

and "no risk" mitigation plan. We believe

our mitigation plan more than compensates for

proposed impacts and provides substantial net

benefits to the environment and the research

community. In particular, information

obtained from our proposed research effort

would not only benefit our project, but would

also facilitate scientific analysis and

review of similar applications and issues.

As always, please do not hesitate to call

should you have any questions or concerns.

12. On August 19, 1996, the Department sent the following

letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan

Ave., Suite 4000, Chicago, IL 60611," the address that

Petitioners had indicated in the Application was their mailing

address:

We have reviewed the information received

on May 31, 1996 for an Environmental

Resource Permit and authorization to use

sovereign submerged lands. The Department

has deemed the application complete as of

this date.

Final action on your application for an

Environmental Resource Permit and sovereign[]

submerged lands authorization will be taken

within 90 days of receipt of your last item

of information unless you choose to waive

this timeclock.

If you have any questions, please contact

me at . . . .

A copy of this August 19, 1996, letter was sent by the Department

to Adair.

13. On August 27, 1996, the Department issued a

Consolidated Notice of Denial (Notice) in which it announced its

preliminary decision to deny Petitioners' Application.

14. The Notice contained the following advisement:

A person whose substantial interests are

affected by the Department's action may

petition for an administrative proceeding

(Hearing) in accordance with Section 120.57,

Florida Statutes. Petitions filed by the

permittee and the parties listed below must

be filed within 14 days of receipt of this

letter. Third party Petitioners shall mail

a copy of the petition to the permittee at

the address indicated above at the time of

filing. Failure to file a petition within

this time period shall constitute a waiver

of any right such person may have to request

an administrative determination (hearing)

under Section 120.57, F.S.

The Petition must contain the information

set forth below and must be filed (received)

in the Office of General Counsel of the

Department at 3900 Commonwealth Boulevard,

Mail Station 35, Tallahassee, Florida

32399-3000:

(a) The name, address, and telephone

number of each petitioner, the permittee's

name and address, the Department Permit File

Number and county in which the project is

proposed;

(b) A statement of how and when each

petitioner received notice of the Depart-

ment's action or proposed action;

(c) A statement of how each petitioner's

substantial interests are affected by the

Department's action or proposed action;

(d) A statement of the material facts

disputed by petitioner, if any;

(e) A statement of facts which petitioner

contends warrant reversal or modification

of the Department's action or proposed action;

(f) A statement of which rules or statutes

petitioner contends warrant reversal or

modification of the Department's action or

proposed action; and

(g) A statement of the relief sought by

petitioner, stating precisely the action

petitioner wants the Department to take with

respect to the Department's action or

proposed action.

If a petition is filed, the administrative

hearing process will constitute a renewed

determination of the Department's decision

on the application. Accordingly, the

Department's final action may be different

from the position taken by it in this letter.

Persons whose substantial interests will be

affected by any decision of the Department

with regard to the permit have the right to

petition to become a party to the proceeding.

The petition must conform to the requirements

specified above and be filed (received) within

14 days of receipt of this notice in the

Office of General Counsel at the above address

of the Department. Failure to petition within

the allowed time frame constitutes a waiver

of any right such person has to request a

hearing under Section 120.57, F.S., and to

participate as a party to this proceeding.

Any subsequent intervention will only be at

the approval of the presiding officer upon

motion filed pursuant to Rule 28-5.207, and

60Q-2.010, F.A.C.

This Notice constitutes final agency action

unless a petition is filed in accordance with

the above paragraphs or unless a request for

extension of time in which to file a petition

is filed within the time specified for filing

a petition and conforms to Rule 62-103.070,

F.A.C. Upon timely filing of a petition or a

request for an extension of time this Notice

will not be effective until further Order of

the Department. . . .

15. The Notice was mailed (by certified mail, return

receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N.

Michigan Ave., Suite 4000, Chicago, IL 60611."

16. Although the Notice's certificate of service reflected

that a copy of the Notice had been mailed to Adair "before the

close of business on AUG 27 1996," in fact, as a result of

inadvertence on the part of Department staff, a copy of the

Notice had not been mailed to Adair.

17. On September 3, 1996, the Notice sent to Petitioners

was received by a Flynn Enterprises, Inc., employee at the

address to which it was mailed. The employee executed a return

receipt upon receiving the Notice.

18. The Notice was referred to Victor Casini, Esquire, the

general counsel of Flynn Enterprises, Inc., on September 4, 1996.

19. Casini set the document aside for filing. He did not

believe that there was any immediate action that he or anyone

else in the Flynn Enterprises, Inc., office in Chicago needed to

take in response to the Notice. Casini noted that Adair's name

was listed in the Notice as among those who purportedly had been

furnished copies of the Notice. He knew that Adair was handling

all matters relating to the permitting of the Project for

Petitioners. He therefore assumed that any action that needed to

be taken in response to the Notice would be taken by Adair on

behalf of Petitioners. Inasmuch as it appeared (from his review

of the Notice) that the Department had already furnished Adair

with a copy of the Notice, he saw no reason to contact Adair to

apprise him of the issuance of the Notice. In taking no action

in response to the Notice other than setting it aside for filing,

Casini acted reasonably under the circumstances.

20. Adair first learned of the issuance of the Notice

during a telephone conversation he had on September 9, 1996, with

an employee of Broward County, who mentioned to him, in passing,

that the Department had denied Petitioners' Application. 2/

Adair thereupon immediately telephoned the Department to confirm

that the Application had been denied. The Department

representative to whom he spoke confirmed that the Notice had

issued, apologized for the Department's failure to have sent him

a copy of the Notice, and promised to rectify the error by

sending him a copy of the Notice as soon as possible.

21. Keith Skibicki, the vice president of Flynn

Enterprises, Inc., in charge of its day-to-day operations, served

as the liaison between Adair and Petitioners. On September 12,

1996, Adair telephoned Skibicki to inquire (for the first time)

if Petitioners had received a copy of the Notice. Skibicki, who

previously had neither seen nor heard about the Notice, asked

around the office and learned that the Notice had been received

and was in Casini's files. Skibicki related this information to

Adair.

22. Later that same day, September 12, 1996, Adair received

the copy of the Notice that the Department had sent him.

23. He then faxed a copy of the Notice to Harry Stewart,

Esquire, the Florida attorney who had been retained by

Petitioners to assist them in their efforts to obtain favorable

action on their Application.

24. Shortly thereafter Adair telephoned Stewart to discuss

what they should do in response to the Notice. During their

conversation, Stewart expressed the opinion that the 14-day

period for filing a petition for an administrative proceeding

began to run only upon Adair's receipt of the Notice and that

therefore Petitioners had until September 26, 1996, to file their

petition.

25. During the two-week period that followed their

telephone conversation, Adair and Stewart worked together to

prepare such a petition.

26. The petition was filed with the Department on September

26, 1996 (which was 23 days after the Notice had been delivered

to the Chicago office of Flynn Enterprises, Inc., but only 14

days after Adair, Petitioners' designated agent in their dealings

with the Department, had received a copy of the Notice).

27. The actions taken on behalf of Petitioners in response

to the Notice were intended to preserve Petitioners' right to

challenge the proposed denial of their Application.

28. At no time was there any knowing and intentional

relinquishment of that right.

CONCLUSIONS OF LAW

29. "Under [S]ection 120.57, [Florida Statutes,] a party

may petition for an administrative evidentiary hearing to contest

any proposed 3/ final state agency action where the proposed

final agency action would affect that party's substantial

interest and where there is a disputed issue of material fact

which formed the basis for the proposed final action." Florida

Sugar Cane League v. South Florida Water Management District, 617

So.2d 1065, 1066 (Fla. 4th DCA 1993).

30. "Until proceedings are had satisfying [S]ection 120.57,

or an opportunity for them is clearly offered and waived, there

can be no agency action affecting the substantial interests of a

person." Florida League of Cities v. Administration Commission,

586 So.2d 397, 413 (Fla. 1st DCA 1991).

31. Consistent with the mandate of Chapter 120, Florida

Statutes, the Department's Rule 62-103.155(1)(a), Florida

Administrative Code, provides that "[a]ny person whose

substantial interests may be affected by proposed . . . agency

action by the Department may file a petition for formal

administrative hearing in accordance with this rule if the person

disputes the material facts upon which the Department's action is

based."

32. Subsection (3) of Rule 62-103.155, Florida

Administrative Code, prescribes the time requirements for filing

petitions for administrative hearings and explains the

consequence of a failure to comply with these requirements. It

provides as follows:

(a) A petition shall be in the form required

by this rule and must be filed (received) in

the Office of the General Counsel of the

Department within the following number of

days after receipt or publication (whichever

occurs first) of notice of proposed agency

action or of notice of agency action:

1. Petitions concerning Department action

or proposed action on applications for

permits (except permits for hazardous waste

facilities): 14 days;

2. Petitions concerning Department action

or proposed action on applications for

hazardous waste facility permits: 45 days;

3. Petitions concerning notices of

violations when no informal conference is

held: 20 days after receipt of notice of

violation;

4. Petitions concerning notices of

violation when an informal conference is

held: 10 days after receipt of notice of

completion of the informal conference;

5. Petitions concerning other Department

actions or proposed actions: 21 days.

The petitioner shall also serve a copy of

the petition on all other parties to the

proceeding, as identified in the published

notice, at the time of filing.

(b) Failure to timely file a petition

within the applicable time period after

receipt of notice of agency action or receipt

of notice of proposed agency action, 4/

whichever notice first occurs, shall

constitute a waiver of any right to request

an administrative proceeding under

Chapter 120, F.S.

33. The Department has heretofore taken the position that

Petitioners have waived their right to request an administrative

hearing on the Department's proposed denial of their Application

because they did not file their petition for such a hearing with

the Department within the time period required by Rule 62-

103.155, Florida Administrative Code.

34. The time requirements for filing petitions for

administrative hearings prescribed in Rule 62-103.155, Florida

Administrative Code, however, like the 20-day time limitation for

appealing an agency determination of abandonment of position that

was analyzed by the Florida Supreme Court in Machules v.

Department of Administration, 523 So.2d 1132 (Fla. 1988), are

"not jurisdictional in the sense that failure to comply is an

absolute bar to [the Department's consideration of a petition]

but [are] more analogous to statute[s] of limitations which are

subject to equitable considerations such as tolling." Machules

v. Department of Administration, 523 So.2d at 1133, n.2;

Castillo v. Department of Administration, 593 So.2d 1116, 1117

(Fla. 2d DCA 1992).

35. In Machules, the Florida Supreme Court made the

following observations regarding the doctrine of equitable

tolling:

The doctrine of equitable tolling was

developed to permit under certain circum-

stances the filing of a lawsuit that other-

wise would be barred by a limitations

period. The tolling doctrine is used in

the interests of justice to accommodate both

a defendant's right not to be called upon to

defend a stale claim and a plaintiff's right

to assert a meritorious claim when equitable

circumstances have prevented a timely filing.

Equitable tolling is a type of equitable

modification which "'focuses on the

plaintiff's excusable ignorance of the

limitations period and on (the) lack of

prejudice to the defendant.'" Contrary to

the analysis of the majority below, equitable

tolling, unlike estoppel, does not require

active deception or employer misconduct, but

focuses rather on the employee with a

reasonably prudent regard for his rights.

As Judge Zehmer notes in his dissent below:

"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."

502 So.2d at 446.

Although there is no Florida decision

pertaining to the application of the tolling

doctrine in administrative proceedings,

federal courts have applied it in many

differing contexts.

Generally, the tolling doctrine has been

applied when the plaintiff 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.

Id. at 1133-34 (Citations and footnotes omitted).

36. In the instant case, Petitioners filed their petition

requesting an administrative hearing on the Department's proposed

denial of their Application more than 14 days after the Notice

was delivered to Petitioners "c/o Flynn Enterprises, 676 N.

Michigan Ave., Suite 4000, Chicago, IL 60611," the address that

Petitioners had indicated in the Application was their "mailing

address." Their failure to have filed the petition within this

14-day period, however, is excusable.

37. Victor Casini, the Flynn Enterprises, Inc., employee to

whom the Notice was routed after its delivery to the business'

Michigan Avenue address, was "lulled into inaction" by the

representation made in the Notice's certificate of service that a

copy of the Notice had been mailed, "before the close of business

on AUG 27 1996," to Jeff Adair, the individual Petitioners had

designated in their Application as their authorized agent with

respect to matters concerning the Project. Casini reasonably

assumed that Adair (who had represented Petitioners in their

dealings with the Department throughout the pendency of the

Application and who, according to the Notice's certificate of

service, had been mailed a copy of the Notice the week before)

would take whatever action needed to be taken on behalf of

Petitioners in response to the Notice. Casini therefore merely

set the Notice aside for filing. He informed neither Adair, nor

Petitioners, that the Notice had been delivered to Flynn

Enterprises, Inc. Unbeknownst to Casini, as a result of

inadvertence on the part of Department staff, a copy of the

Notice had not been mailed to Adair "before the close of business

on AUG 27 1996." It was not until September 9, 1996, that Adair

was actually mailed a copy of the Notice. The Department's

failure to mail Adair a copy of the Notice "before the close of

business on AUG 27 1996," coupled with its misrepresentation in

the Notice's certificate of service that it had done so,

effectively deprived Petitioners of the benefit of a full 14 days

from the date of the Notice's delivery to Petitioners' "mailing

address" to prepare and file a petition challenging the action

proposed in the Notice.

38. After Adair received his copy of the Notice (on

September 12, 1996), he acted in what he believed (based upon the

legal advice he had received from Harry Stewart, Esquire, the

Florida attorney Petitioners had retained) was a timely manner

that would not waive Petitioners' right to challenge the proposed

denial of their Application. Stewart advised Adair that the 14-

day period within which a petition challenging such proposed

action had to be filed commenced upon Adair's receipt of a copy

of the Notice. Although Stewart may not have been correct,

inasmuch as Petitioners, in the Application, had designated Adair

as their authorized agent in their dealings with the Department

and Adair had served in that capacity since the time the

Application had been filed, it cannot be said that there was no

reasonable basis for Stewart's opinion. 5/ See Robinson v.

Department of Insurance, 676 So.2d 1378, 1379 (Fla. 2d DCA 1996);

Brennan v. Paul Barbas Interiors, 357 So.2d 746 (Fla. 4th DCA

1978).

39. Petitioners' petition challenging the proposed denial

of their Application was filed on September 26, 1996, within the

14-day period that, in Stewart's opinion, a petition had to be

filed in order to preserve Petitioners' right to institute such a

challenge. Filing the petition within 14 days of Adair's receipt

of the copy of the Notice (instead of within 14 days of the date

that the Notice was delivered to Petitioners' "mailing address")

has not resulted in any apparent prejudice to the Department.

40. In view of the foregoing, equitable considerations

dictate that the Department not dismiss Petitioners' petition on

the ground that it was untimely filed. Cf. Robinson v.

Department of Insurance, 676 So.2d 1378, 1379 (Fla. 2d DCA

1996)(Department of Insurance's argument that licensee waived

right to hearing by failing to timely respond to administrative

complaint that had been served on him rejected where

administrative complaint reflected that copy of administrative

complaint had been served on licensee's attorney, but attorney

never received copy, and licensee "was relying on his attorney

for representation and, based on the certificate of service,

assumed his attorney had received the administrative complaint");

Abusalameh v. Department of Business Regulation, Division of

Alcoholic Beverages and Tobacco, 627 So.2d 560 (Fla. 4th DCA

1993)(final order revoking alcoholic beverage license without a

hearing reversed where record reflected "confusion concerning the

cancellation of, and subsequent failure to reschedule, the only

noticed hearing;" "[c]onsequently, there was an 'equitable

tolling'" and agency could not conclude that licensee had waived

"administrative procedure rights," notwithstanding that

licensee's attorney may have been "at fault in not ensuring that

the [hearing] was reset"); Alachua County v. Cheshire, 603 So.2d

1334, 1337 (Fla. 1st DCA 1992)(foreclosure action not barred by

statute of limitations where representations made to mortgagee

"induced [him] into forbearing suit within the applicable

limitations period"); General Motors Corporation v. Gus Machado

Buick-GMC, Inc., 581 So.2d 637, 638 (Fla. 1st DCA 1991)("[t]he

appellate courts have not viewed favorably arguments that short

delays in requesting a hearing should result in a forfeiture of

substantive rights"); Glantzis v. State Automobile Mutual

Insurance Company, 573 So.2d 1049 (Fla. 4th DCA 1991)(insurance

company equitably estopped from relying upon statute of

limitations in insureds' action to compel arbitration where

insurance company "abandon[ed]" arbitration after having

initially voluntarily agreed to accept insureds' demand for

arbitration and thereby "lulled [insureds] into [a] false sense

of security" that there was no need for them to file suit);

Stewart v. Department of Corrections, 561 So.2d 15, 16 (Fla. 4th

DCA 1990)(state employee should have been allowed to pursue

appeal of his dismissal from employment, notwithstanding that his

attorney filed appeal with Public Employees Relations Commission

"one business day after the time limitation had run," where late

filing did not result in prejudice to employing agency; error

not to have applied "doctrine of equitable tolling"); Coon

Clothing Company, Inc., v. Eggers, 560 So.2d 1357 (Fla. 3d DCA

1990)("[i]t has long been the public policy of Florida that

litigation should, whenever possible, be resolved on the merits

rather than on the basis of a procedural default"); Rothblatt v.

Department of Health and Rehabilitative Services, 520 So.2d 644,

645 (Fla. 4th DCA 1988)(filing of request for formal

administrative hearing six days after May 13, 1987, filing

deadline did not result in waiver of appellant's right to such

hearing where appellant's attorney "gave the request for formal

hearing to the firm's receptionist on May 11, 1987, to send by

Federal Express the next day, and did not know it was instead

sent about a week later, until she received a copy of the final

order").

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Department enter an order finding that

Petitioners' petition challenging the proposed denial of their

Application is not time-barred and remanding the matter to the

Division of Administrative Hearings for a Section 120.57(1)

hearing on the merits of Petitioners' challenge.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this

6th day of February, 1997.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of February, 1997.

ENDNOTES

1/ Neither party expressed any objection when the undersigned

announced, at the evidentiary hearing, that he intended to take

such action.

2/ Although Adair anticipated that the Department would issue a

notice "toward the end of th[e] month [of August]," it was also

his expectation that, because he was Petitioners' agent, the

Department would send him a copy of any notice it issued.

3/ A Section 120.57 hearing is intended "to formulate agency

action, not to review action taken earlier and preliminarily."

Young v. Department of Community Affairs, 625 So.2d 831, 833

(Fla. 1993); Hamilton County Board of County Commissioners v.

Department of Environmental Regulation, 587 So.2d 1378, 1387

(Fla. 1st DCA 1991); Boca Raton Artificial Kidney Center, Inc.,

v. Florida Department of Health and Rehabilitative Services, 475

So.2d 260, 262 (Fla. 1st DCA 1985); DeCarion v. Department of

Environmental Regulation, 445 So.2d 619, 621 (Fla. 1st DCA 1984);

Capeletti Brothers, Inc., v. Department of General Services, 432

So.2d 1359, 1364 (Fla. 1st DCA 1983); McDonald v. Department of

Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

4/ "Receipt of notice of agency action" and "receipt of notice

of proposed agency action," as used in Rule 62-103.155, Florida

Administrative Code, are defined in subsection (6) of the rule as

follows:

(a) "Receipt of notice of agency action"

means receipt of written notice of final

agency action, as prescribed by Department

rule, or the publication, pursuant to

Department rule, of notice of final agency

action, whichever first occurs.

(b) "Receipt of notice of proposed

agency action" means receipt of written

notice (such as a letter of intent) that the

Department proposes to take certain action,

or the publication pursuant to Department

rule of notice of proposed agency action,

whichever first occurs.

5/ Although the Department may have made oral and written

statements to Adair that gave him reason to anticipate that the

Department would issue a notice of denial "toward the end of

th[e] month [of August]," the making of these statements did not

constitute notice sufficient to afford Petitioners a clear "point

of entry" to pursue a Section 120.57(1) proceeding on the

proposed denial their application and to therefore trigger the

commencement of the time period within which such a proceeding

had to be requested. See City of St. Cloud v. Department of

Environmental Regulation, 490 So.2d 1356, 1358 (Fla. 5th DCA

1986); Sims v. Board of Trustees of North Florida Junior

College, 444 So.2d 1115, 1117 (Fla. 1st DCA 1984); Sterman v.

Florida State University, 414 So.2d 1102, 1103-04 (Fla. 1st DCA

1982).

COPIES FURNISHED:

Harry A. Stewart, Esquire

Joan T. Dwoskin, Esquire

Akerman, Senterfitt and Eidson, P.A.

Post Office Box 231

Orlando, Florida 32801

Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom

General Counsel

Department of Environmental Protection

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. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.