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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DONALD FLYNN AND BEVERLY FLYNN, )

14)

15Petitioners, )

17)

18vs. ) CASE NO. 96-4737

23)

24DEPARTMENT OF ENVIRONMENTAL )

28PROTECTION, )

30)

31Respondent. )

33_________________________________)

34RECOMMENDED ORDER

36Pursuant to notice, an evidentiary hearing on Respondent's

44Motion to Dismiss was conducted in this case on December 3, 1996,

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

66designated Administrative Law Judge of the Division of

74Administrative Hearings.

76APPEARANCES

77For Petitioners: Harry A. Stewart, Esquire

83Joan T. Dwoskin, Esquire

87Akerman, Senterfitt and Eidson, P.A.

92Post Office Box 231

96Orlando, Florida 32801

99For Respondent: Jeffrey Brown

103Assistant General Counsel

106Department of Environmental Protection

1103900 Commonwealth Boulevard

113Tallahassee, Florida 32399-3000

116STATEMENT OF THE ISSUE

120Whether Petitioners' petition challenging Respondent's

125Consolidated Notice of Denial [of Petitioners' Application for

133an] Environmental Resource Permit and Lease to Use Sovereign

142Submerged Lands should be dismissed on the ground that it was not

154timely filed?

156PRELIMINARY STATEMENT

158On October 7, 1996, the Department of Environmental

166Protection (Department) referred to the Division of

173Administrative Hearings (Division) a petition it had received

181from Petitioners which challenged the Department's announced

188intention to deny Petitioners' application for an environmental

196resource permit and a lease to use sovereign submerged lands. On

207October 15, 1996, the Department filed with the Division a Motion

218to Dismiss Petition and Memorandum of Law in Support Thereof

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

237petition should be dismissed on the ground that it was not timely

249filed. On October 16, 1996, the undersigned Administrative Law

258Judge issued an order directing Petitioners to file with the

268Division, and serve on the Department, a response to the

278Department's Motion. Petitioners filed such a response on

286October 25, 1996.

289On October 28, 1996, the undersigned issued an order

298declaring that "it would be inappropriate for [him] to make a

309recommendation as to whether Petitioners' petition should be

317dismissed on the ground that it was not timely filed without

328first conducting an evidentiary hearing on the matter." In the

338order, the undersigned announced that such a hearing would be

348held, by telephone conference call, on November 21, 1996.

357On October 30, 1996, the undersigned issued a Notice of

367Hearing in which he advised that, "[i]f a hearing on the merits

379of Petitioners' Petition Challenging Consolidated Notice of

386Denial of Environmental Resource Permit and Lease to Use

395Sovereign Submerged Lands is necessary, it will be held . . . on

408February 27 and 28, 1997, beginning at 9:00 a.m., or as soon

420thereafter as can be heard."

425On November 13, 1996, Petitioners filed an unopposed motion

434requesting that the evidentiary hearing on the Department's

442Motion be continued. By order issued November 14, 1996,

451Petitioners' motion was granted. The hearing was subsequently

459rescheduled for December 3, 1996.

464The evidentiary hearing on the Department's Motion was held

473on December 3, 1996, as scheduled. At the hearing, Petitioners

483presented the testimony of three witnesses: Jeff Adair; Victor

492Casini; and Keith Skibicki. They also offered three exhibits

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

511Petitioners' exhibits were admitted by the undersigned. The

519Department presented the testimony of two witnesses: Timothy

527Rach; and Marion Hedgepeth. In addition, it offered seven

536exhibits (Respondent's Exhibits 2 through 8) into evidence. All

545seven of the Department's exhibits were admitted by the

554undersigned. At the conclusion of the evidentiary portion of the

564hearing, the undersigned, on the record, announced that post-

573hearing submittals (on the Department's Motion) had to be filed

583no later than 20 days after the undersigned's receipt of the

594transcript of the hearing, or January 10, 1997, whichever was

604later.

605On December 6, 1996, the undersigned issued an order in

615which he stated the following:

620As the parties were notified during the

627evidentiary hearing (held December 3,

6321996) on Respondent's Motion to Dismiss

638(Motion) Petitioners' Petition Challenging

642Consolidated Notice of Denial of Environ-

648mental Resource Permit and Lease to Use

655Sovereign Submerged Lands (Petition),

659regardless of the undersigned's ruling on

665the Motion, there will not be a Section

673120.57(1) hearing on the merits of the

680Petition on February 27 and 28, 1997. It

688is the undersigned's intention, upon ruling

694on the Motion, to relinquish jurisdiction

700to Respondent to consider his ruling. 1/

707If Respondent determines that the Petition

713should not be dismissed and returns the matter

721to the Division of Administrative Hearings,

727a Section 120.57(1) hearing on the merits of

735the Petition will then be scheduled.

741The undersigned received the transcript of the evidentiary

749hearing on the Department's Motion on January 13, 1997. On

759January 30, 1997, Petitioners and the Department filed their

768proposed recommended orders. These proposed recommended orders

775have been carefully considered by the undersigned.

782FINDINGS OF FACT

785Based upon the evidence adduced at the evidentiary hearing

794on the Department's Motion, and the record as a whole, the

805following Findings of Fact are made:

8111. In October of 1995, Petitioners, who desired to

820construct a single-family, concrete dock in the Hillsboro Canal

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

839perform dredging adjacent to the dock (Project), filed with the

849Department a Joint Application for Environmental Resource

856Permit/Authorization to Use State Owned Submerged Lands/Federal

863Dredge and Fill Permit (Application).

8682. In the Application, Petitioners indicated that their

876mailing address was:

879c/o Flynn Enterprises

882676 N. Michigan Ave., Suite 4000

888Chicago, IL 60611

891Flynn Enterprises, Inc., is a business owned by Petitioner Donald

901Flynn.

9023. The Application listed "Jeff Adair, Project Manager" of

"911Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale,

921FL 33309," as the "agent authorized to secure permit" for

931Petitioners.

9324. The application form that Petitioners used to submit

941their Application contained the following signature page:

948By signing this application form, I am

955applying, or I am applying on behalf of the

964applicant, for the permit and any proprietary

971authorizations identified above, according to

976the supporting data and other incidental

982information filed with this application. I

988am familiar with the information contained

994in this application and represent that such

1001information is true, complete and accurate.

1007I understand this is an application and not

1015a permit, and that work prior to approval

1023is a violation. I understand that this

1030application and any permit issued or

1036proprietary authorization issued pursuant

1040thereto, does not relieve me of any

1047obligation for obtaining any other required

1053federal, state, water management district or

1059local permit prior to commencement of

1065construction. I agree, or I agree on behalf

1073of my corporation, to operate and maintain

1080the permitted system unless the permitting

1086agency authorizes transfer of the permit to

1093a responsible operation entity. I understand

1099that knowingly making any false statement or

1106representation in this application is a

1112violation of Section 373.430, F.S. and 18

1119U.S.C. Section 1001.

1122_____________________________________________

1123Typed/Printed Name of Applicant (if no Agent

1130is used) or Agent (if one is so authorized

1139below)

1140_____________________________________________

1141Signature of Applicant/Agent Date

1145_____________________________________________

1146(Corporate Title if applicable)

1150AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT

1159COMPLETES THE FOLLOWING:

1162I hereby designate and authorize the agent

1169listed above to act on my behalf, or on

1178behalf of my corporation, as the agent in the

1187processing of this application for the permit

1194and/or proprietary authorization indicated

1198above; and to furnish, on request, supple-

1205mental information in support of the appli-

1212cation. In addition, I authorize the above-

1219listed agent to bind me, or my corporation,

1227to perform any requirement which may be

1234necessary to procure the permit or

1240authorization indicated above. I understand

1245that knowingly making any false statement or

1252representation in this application is a

1258violation of Section 373.430. F.S. and 18

1265U.S.C. Section 1001.

1268_____________________________________________

1269Typed/Printed Name of Applicant

1273_____________________________________________

1274Signature of Applicant Date

1278_____________________________________________

1279(Corporate Title if applicable)

1283Please note: The applicant's original

1288signature (not a copy) is required above.

1295PERSON AUTHORIZING ACCESS TO THE PROPERTY

1301MUST COMPLETE THE FOLLOWING:

1305I either own the property described in this

1313application or I have legal authority to

1320allow access to the property, and I consent,

1328after receiving prior notification, to any

1334site visit on the property by agents or

1342personnel from the Department of Environ-

1348mental Protection, the Water Management

1353District and the U.S. Army Corps of Engineers

1361necessary for the review and inspection of

1368the proposed project specified in this

1374application. I authorize these agents or

1380personnel to enter the property as many times

1388as may be necessary to make such review and

1397inspection. Further , I agree to provide

1403entry to the project site for such agents or

1412personnel to monitor permitted work if a

1419permit is granted.

1422_____________________________________________

1423Typed/Printed Name

1425_____________________________________________

1426Signature Date

1428_____________________________________________

1429(Corporate Title if applicable)

14335. The name "Jeff Adair" appears on the "Name of Applicant

1444(if no Agent is used) or Agent (if one is so authorized below)"

1457line under the first paragraph on the signature page of

1467Petitioners' Application; however, neither Adair's signature,

1473nor any other signature, appears on the signature line under this

1484paragraph.

14856. Petitioner Donald Flynn's signature appears on the

1493signature lines under the second (agent designation and

1501authorization) and third (access to property) paragraphs on the

1510page.

15117. By letter dated November 17, 1995, the Department

1520informed Petitioners of the following:

1525Preliminary evaluation of your project leads

1531staff to the conclusion that the project as

1539proposed cannot be recommended for approval.

1545While this is not final agency action or

1553notice of intent, it does represent the staff

1561review of your application based on consider-

1568able experience in permitting matters. We

1574are sending you this letter at this stage of

1583the processing to allow you to assess fully

1591the further commitment of financial resources

1597for design dependent on permit issuance. . . .

1606In summary, please revise plans to: (1)

1613reduce the amount of dredging; (2) reduce

1620impacts to natural resources; (3) reduce

1626the size of the dock; (4) reduce encroachment

1634on navigational channel; (5) reduce

1639encroachment on adjacent properties; and

1644(6) after minimization, offer mitigation

1649plans that would address the loss of seagrass

1657in the vicinity (watershed or basin) of the

1665project site.

1667Your application is currently "incomplete"

1672and Final Agency Action will not occur until

1680a reasonable amount of time is allowed for

1688the submittal of a revised plan. A

1695completeness summary has been sent under

1701separate cover, addressing the items that

1707are still outstanding. Staff will continue

1713to process your application in the normal

1720manner; however, I suggest you contact Tim

1727Rach of this office . . . to discuss these

1737possible alternatives regarding your project.

17428. The Department's November 17, 1995, letter was addressed

1751to Petitioners "c/o Jeff Adair, Project Manager, Keith and

1760Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL

176933309-2132," as were subsequent requests for additional

1776information made by the Department and other correspondence from

1785the Department concerning the Project.

17909. Adair responded to the Department's requests for

1798additional information and otherwise corresponded and

1804communicated with the Department on behalf of Petitioners.

181210. In July of 1996, Adair participated in a telephone

1822conference call during which the Department advised him that, if

1832the Application was not withdrawn, it would be denied.

184111. On August 13, 1996, Adair sent the following letter to

1852the Department concerning the Project:

1857Pursuant to our recent discussions pertaining

1863to the proposed mitigation plan and final

1870review and processing of the Flynn Dock

1877application, we have been advised via Mr.

1884Flynn's attorney not to withdraw the

1890application. Therefore, we await the

1895Department's final decision relative to the

1901permittability of this project. As you have

1908indicated, we are anticipating the Depart-

1914ment's response toward the end of this month.

1922In making your decision, we strongly urge

1929you to consider the merits or our innovative

1937and "no risk" mitigation plan. We believe

1944our mitigation plan more than compensates for

1951proposed impacts and provides substantial net

1957benefits to the environment and the research

1964community. In particular, information

1968obtained from our proposed research effort

1974would not only benefit our project, but would

1982also facilitate scientific analysis and

1987review of similar applications and issues.

1993As always, please do not hesitate to call

2001should you have any questions or concerns.

200812. On August 19, 1996, the Department sent the following

2018letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan

2027Ave., Suite 4000, Chicago, IL 60611," the address that

2036Petitioners had indicated in the Application was their mailing

2045address:

2046We have reviewed the information received

2052on May 31, 1996 for an Environmental

2059Resource Permit and authorization to use

2065sovereign submerged lands. The Department

2070has deemed the application complete as of

2077this date.

2079Final action on your application for an

2086Environmental Resource Permit and sovereign[]

2091submerged lands authorization will be taken

2097within 90 days of receipt of your last item

2106of information unless you choose to waive

2113this timeclock.

2115If you have any questions, please contact

2122me at . . . .

2128A copy of this August 19, 1996, letter was sent by the Department

2141to Adair.

214313. On August 27, 1996, the Department issued a

2152Consolidated Notice of Denial (Notice) in which it announced its

2162preliminary decision to deny Petitioners' Application.

216814. The Notice contained the following advisement:

2175A person whose substantial interests are

2181affected by the Department's action may

2187petition for an administrative proceeding

2192(Hearing) in accordance with Section 120.57,

2198Florida Statutes. Petitions filed by the

2204permittee and the parties listed below must

2211be filed within 14 days of receipt of this

2220letter. Third party Petitioners shall mail

2226a copy of the petition to the permittee at

2235the address indicated above at the time of

2243filing. Failure to file a petition within

2250this time period shall constitute a waiver

2257of any right such person may have to request

2266an administrative determination (hearing)

2270under Section 120.57, F.S.

2274The Petition must contain the information

2280set forth below and must be filed (received)

2288in the Office of General Counsel of the

2296Department at 3900 Commonwealth Boulevard,

2301Mail Station 35, Tallahassee, Florida

230632399-3000:

2307(a) The name, address, and telephone

2313number of each petitioner, the permittee's

2319name and address, the Department Permit File

2326Number and county in which the project is

2334proposed;

2335(b) A statement of how and when each

2343petitioner received notice of the Depart-

2349ment's action or proposed action;

2354(c) A statement of how each petitioner's

2361substantial interests are affected by the

2367Department's action or proposed action;

2372(d) A statement of the material facts

2379disputed by petitioner, if any;

2384(e) A statement of facts which petitioner

2391contends warrant reversal or modification

2396of the Department's action or proposed action;

2403(f) A statement of which rules or statutes

2411petitioner contends warrant reversal or

2416modification of the Department's action or

2422proposed action; and

2425(g) A statement of the relief sought by

2433petitioner, stating precisely the action

2438petitioner wants the Department to take with

2445respect to the Department's action or

2451proposed action.

2453If a petition is filed, the administrative

2460hearing process will constitute a renewed

2466determination of the Department's decision

2471on the application. Accordingly, the

2476Department's final action may be different

2482from the position taken by it in this letter.

2491Persons whose substantial interests will be

2497affected by any decision of the Department

2504with regard to the permit have the right to

2513petition to become a party to the proceeding.

2521The petition must conform to the requirements

2528specified above and be filed (received) within

253514 days of receipt of this notice in the

2544Office of General Counsel at the above address

2552of the Department. Failure to petition within

2559the allowed time frame constitutes a waiver

2566of any right such person has to request a

2575hearing under Section 120.57, F.S., and to

2582participate as a party to this proceeding.

2589Any subsequent intervention will only be at

2596the approval of the presiding officer upon

2603motion filed pursuant to Rule 28-5.207, and

261060Q-2.010, F.A.C.

2612This Notice constitutes final agency action

2618unless a petition is filed in accordance with

2626the above paragraphs or unless a request for

2634extension of time in which to file a petition

2643is filed within the time specified for filing

2651a petition and conforms to Rule 62-103.070,

2658F.A.C. Upon timely filing of a petition or a

2667request for an extension of time this Notice

2675will not be effective until further Order of

2683the Department. . . .

268815. The Notice was mailed (by certified mail, return

2697receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N.

2706Michigan Ave., Suite 4000, Chicago, IL 60611."

271316. Although the Notice's certificate of service reflected

2721that a copy of the Notice had been mailed to Adair "before the

2734close of business on AUG 27 1996," in fact, as a result of

2747inadvertence on the part of Department staff, a copy of the

2758Notice had not been mailed to Adair.

276517. On September 3, 1996, the Notice sent to Petitioners

2775was received by a Flynn Enterprises, Inc., employee at the

2785address to which it was mailed. The employee executed a return

2796receipt upon receiving the Notice.

280118. The Notice was referred to Victor Casini, Esquire, the

2811general counsel of Flynn Enterprises, Inc., on September 4, 1996.

282119. Casini set the document aside for filing. He did not

2832believe that there was any immediate action that he or anyone

2843else in the Flynn Enterprises, Inc., office in Chicago needed to

2854take in response to the Notice. Casini noted that Adair's name

2865was listed in the Notice as among those who purportedly had been

2877furnished copies of the Notice. He knew that Adair was handling

2888all matters relating to the permitting of the Project for

2898Petitioners. He therefore assumed that any action that needed to

2908be taken in response to the Notice would be taken by Adair on

2921behalf of Petitioners. Inasmuch as it appeared (from his review

2931of the Notice) that the Department had already furnished Adair

2941with a copy of the Notice, he saw no reason to contact Adair to

2955apprise him of the issuance of the Notice. In taking no action

2967in response to the Notice other than setting it aside for filing,

2979Casini acted reasonably under the circumstances.

298520. Adair first learned of the issuance of the Notice

2995during a telephone conversation he had on September 9, 1996, with

3006an employee of Broward County, who mentioned to him, in passing,

3017that the Department had denied Petitioners' Application. 2/

3025Adair thereupon immediately telephoned the Department to confirm

3033that the Application had been denied. The Department

3041representative to whom he spoke confirmed that the Notice had

3051issued, apologized for the Department's failure to have sent him

3061a copy of the Notice, and promised to rectify the error by

3073sending him a copy of the Notice as soon as possible.

308421. Keith Skibicki, the vice president of Flynn

3092Enterprises, Inc., in charge of its day-to-day operations, served

3101as the liaison between Adair and Petitioners. On September 12,

31111996, Adair telephoned Skibicki to inquire (for the first time)

3121if Petitioners had received a copy of the Notice. Skibicki, who

3132previously had neither seen nor heard about the Notice, asked

3142around the office and learned that the Notice had been received

3153and was in Casini's files. Skibicki related this information to

3163Adair.

316422. Later that same day, September 12, 1996, Adair received

3174the copy of the Notice that the Department had sent him.

318523. He then faxed a copy of the Notice to Harry Stewart,

3197Esquire, the Florida attorney who had been retained by

3206Petitioners to assist them in their efforts to obtain favorable

3216action on their Application.

322024. Shortly thereafter Adair telephoned Stewart to discuss

3228what they should do in response to the Notice. During their

3239conversation, Stewart expressed the opinion that the 14-day

3247period for filing a petition for an administrative proceeding

3256began to run only upon Adair's receipt of the Notice and that

3268therefore Petitioners had until September 26, 1996, to file their

3278petition.

327925. During the two-week period that followed their

3287telephone conversation, Adair and Stewart worked together to

3295prepare such a petition.

329926. The petition was filed with the Department on September

330926, 1996 (which was 23 days after the Notice had been delivered

3321to the Chicago office of Flynn Enterprises, Inc., but only 14

3332days after Adair, Petitioners' designated agent in their dealings

3341with the Department, had received a copy of the Notice).

335127. The actions taken on behalf of Petitioners in response

3361to the Notice were intended to preserve Petitioners' right to

3371challenge the proposed denial of their Application.

337828. At no time was there any knowing and intentional

3388relinquishment of that right.

3392CONCLUSIONS OF LAW

339529. "Under [S]ection 120.57, [Florida Statutes,] a party

3404may petition for an administrative evidentiary hearing to contest

3413any proposed 3/ final state agency action where the proposed

3423final agency action would affect that party's substantial

3431interest and where there is a disputed issue of material fact

3442which formed the basis for the proposed final action." Florida

3452Sugar Cane League v. South Florida Water Management District, 617

3462So.2d 1065, 1066 (Fla. 4th DCA 1993).

346930. "Until proceedings are had satisfying [S]ection 120.57,

3477or an opportunity for them is clearly offered and waived, there

3488can be no agency action affecting the substantial interests of a

3499person." Florida League of Cities v. Administration Commission,

3507586 So.2d 397, 413 (Fla. 1st DCA 1991).

351531. Consistent with the mandate of Chapter 120, Florida

3524Statutes, the Department's Rule 62-103.155(1)(a), Florida

3530Administrative Code, provides that "[a]ny person whose

3537substantial interests may be affected by proposed . . . agency

3548action by the Department may file a petition for formal

3558administrative hearing in accordance with this rule if the person

3568disputes the material facts upon which the Department's action is

3578based."

357932. Subsection (3) of Rule 62-103.155, Florida

3586Administrative Code, prescribes the time requirements for filing

3594petitions for administrative hearings and explains the

3601consequence of a failure to comply with these requirements. It

3611provides as follows:

3614(a) A petition shall be in the form required

3623by this rule and must be filed (received) in

3632the Office of the General Counsel of the

3640Department within the following number of

3646days after receipt or publication (whichever

3652occurs first) of notice of proposed agency

3659action or of notice of agency action:

36661. Petitions concerning Department action

3671or proposed action on applications for

3677permits (except permits for hazardous waste

3683facilities): 14 days;

36862. Petitions concerning Department action

3691or proposed action on applications for

3697hazardous waste facility permits: 45 days;

37033. Petitions concerning notices of

3708violations when no informal conference is

3714held: 20 days after receipt of notice of

3722violation;

37234. Petitions concerning notices of

3728violation when an informal conference is

3734held: 10 days after receipt of notice of

3742completion of the informal conference;

37475. Petitions concerning other Department

3752actions or proposed actions: 21 days.

3758The petitioner shall also serve a copy of

3766the petition on all other parties to the

3774proceeding, as identified in the published

3780notice, at the time of filing.

3786(b) Failure to timely file a petition

3793within the applicable time period after

3799receipt of notice of agency action or receipt

3807of notice of proposed agency action, 4/

3814whichever notice first occurs, shall

3819constitute a waiver of any right to request

3827an administrative proceeding under

3831Chapter 120, F.S.

383433. The Department has heretofore taken the position that

3843Petitioners have waived their right to request an administrative

3852hearing on the Department's proposed denial of their Application

3861because they did not file their petition for such a hearing with

3873the Department within the time period required by Rule 62-

3883103.155, Florida Administrative Code.

388734. The time requirements for filing petitions for

3895administrative hearings prescribed in Rule 62-103.155, Florida

3902Administrative Code, however, like the 20-day time limitation for

3911appealing an agency determination of abandonment of position that

3920was analyzed by the Florida Supreme Court in Machules v.

3930Department of Administration, 523 So.2d 1132 (Fla. 1988), are

"3939not jurisdictional in the sense that failure to comply is an

3950absolute bar to [the Department's consideration of a petition]

3959but [are] more analogous to statute[s] of limitations which are

3969subject to equitable considerations such as tolling." Machules

3977v. Department of Administration, 523 So.2d at 1133, n.2;

3986Castillo v. Department of Administration, 593 So.2d 1116, 1117

3995(Fla. 2d DCA 1992).

399935. In Machules, the Florida Supreme Court made the

4008following observations regarding the doctrine of equitable

4015tolling:

4016The doctrine of equitable tolling was

4022developed to permit under certain circum-

4028stances the filing of a lawsuit that other-

4036wise would be barred by a limitations

4043period. The tolling doctrine is used in

4050the interests of justice to accommodate both

4057a defendant's right not to be called upon to

4066defend a stale claim and a plaintiff's right

4074to assert a meritorious claim when equitable

4081circumstances have prevented a timely filing.

4087Equitable tolling is a type of equitable

4094modification which "'focuses on the

4099plaintiff's excusable ignorance of the

4104limitations period and on (the) lack of

4111prejudice to the defendant.'" Contrary to

4117the analysis of the majority below, equitable

4124tolling, unlike estoppel, does not require

4130active deception or employer misconduct, but

4136focuses rather on the employee with a

4143reasonably prudent regard for his rights.

4149As Judge Zehmer notes in his dissent below:

"4157The doctrine (of equitable tolling) serves

4163to ameliorate harsh results that sometimes

4169flow from a strict, literalistic construction

4175and application of administrative time limits

4181contained in statutes and rules."

4186502 So.2d at 446.

4190Although there is no Florida decision

4196pertaining to the application of the tolling

4203doctrine in administrative proceedings,

4207federal courts have applied it in many

4214differing contexts.

4216Generally, the tolling doctrine has been

4222applied when the plaintiff has been misled

4229or lulled into inaction, has in some

4236extraordinary way been prevented from

4241asserting his rights, or has timely asserted

4248his rights mistakenly in the wrong forum.

4255Id. at 1133-34 (Citations and footnotes omitted).

426236. In the instant case, Petitioners filed their petition

4271requesting an administrative hearing on the Department's proposed

4279denial of their Application more than 14 days after the Notice

4290was delivered to Petitioners "c/o Flynn Enterprises, 676 N.

4299Michigan Ave., Suite 4000, Chicago, IL 60611," the address that

4309Petitioners had indicated in the Application was their "mailing

4318address." Their failure to have filed the petition within this

432814-day period, however, is excusable.

433337. Victor Casini, the Flynn Enterprises, Inc., employee to

4342whom the Notice was routed after its delivery to the business'

4353Michigan Avenue address, was "lulled into inaction" by the

4362representation made in the Notice's certificate of service that a

4372copy of the Notice had been mailed, "before the close of business

4384on AUG 27 1996," to Jeff Adair, the individual Petitioners had

4395designated in their Application as their authorized agent with

4404respect to matters concerning the Project. Casini reasonably

4412assumed that Adair (who had represented Petitioners in their

4421dealings with the Department throughout the pendency of the

4430Application and who, according to the Notice's certificate of

4439service, had been mailed a copy of the Notice the week before)

4451would take whatever action needed to be taken on behalf of

4462Petitioners in response to the Notice. Casini therefore merely

4471set the Notice aside for filing. He informed neither Adair, nor

4482Petitioners, that the Notice had been delivered to Flynn

4491Enterprises, Inc. Unbeknownst to Casini, as a result of

4500inadvertence on the part of Department staff, a copy of the

4511Notice had not been mailed to Adair "before the close of business

4523on AUG 27 1996." It was not until September 9, 1996, that Adair

4536was actually mailed a copy of the Notice. The Department's

4546failure to mail Adair a copy of the Notice "before the close of

4559business on AUG 27 1996," coupled with its misrepresentation in

4569the Notice's certificate of service that it had done so,

4579effectively deprived Petitioners of the benefit of a full 14 days

4590from the date of the Notice's delivery to Petitioners' "mailing

4600address" to prepare and file a petition challenging the action

4610proposed in the Notice.

461438. After Adair received his copy of the Notice (on

4624September 12, 1996), he acted in what he believed (based upon the

4636legal advice he had received from Harry Stewart, Esquire, the

4646Florida attorney Petitioners had retained) was a timely manner

4655that would not waive Petitioners' right to challenge the proposed

4665denial of their Application. Stewart advised Adair that the 14-

4675day period within which a petition challenging such proposed

4684action had to be filed commenced upon Adair's receipt of a copy

4696of the Notice. Although Stewart may not have been correct,

4706inasmuch as Petitioners, in the Application, had designated Adair

4715as their authorized agent in their dealings with the Department

4725and Adair had served in that capacity since the time the

4736Application had been filed, it cannot be said that there was no

4748reasonable basis for Stewart's opinion. 5/ See Robinson v.

4757Department of Insurance, 676 So.2d 1378, 1379 (Fla. 2d DCA 1996);

4768Brennan v. Paul Barbas Interiors, 357 So.2d 746 (Fla. 4th DCA

47791978).

478039. Petitioners' petition challenging the proposed denial

4787of their Application was filed on September 26, 1996, within the

479814-day period that, in Stewart's opinion, a petition had to be

4809filed in order to preserve Petitioners' right to institute such a

4820challenge. Filing the petition within 14 days of Adair's receipt

4830of the copy of the Notice (instead of within 14 days of the date

4844that the Notice was delivered to Petitioners' "mailing address")

4854has not resulted in any apparent prejudice to the Department.

486440. In view of the foregoing, equitable considerations

4872dictate that the Department not dismiss Petitioners' petition on

4881the ground that it was untimely filed. Cf. Robinson v.

4891Department of Insurance, 676 So.2d 1378, 1379 (Fla. 2d DCA

49011996)(Department of Insurance's argument that licensee waived

4908right to hearing by failing to timely respond to administrative

4918complaint that had been served on him rejected where

4927administrative complaint reflected that copy of administrative

4934complaint had been served on licensee's attorney, but attorney

4943never received copy, and licensee "was relying on his attorney

4953for representation and, based on the certificate of service,

4962assumed his attorney had received the administrative complaint");

4971Abusalameh v. Department of Business Regulation, Division of

4979Alcoholic Beverages and Tobacco, 627 So.2d 560 (Fla. 4th DCA

49891993)(final order revoking alcoholic beverage license without a

4997hearing reversed where record reflected "confusion concerning the

5005cancellation of, and subsequent failure to reschedule, the only

5014noticed hearing;" "[c]onsequently, there was an 'equitable

5021tolling'" and agency could not conclude that licensee had waived

"5031administrative procedure rights," notwithstanding that

5036licensee's attorney may have been "at fault in not ensuring that

5047the [hearing] was reset"); Alachua County v. Cheshire, 603 So.2d

50581334, 1337 (Fla. 1st DCA 1992)(foreclosure action not barred by

5068statute of limitations where representations made to mortgagee

"5076induced [him] into forbearing suit within the applicable

5084limitations period"); General Motors Corporation v. Gus Machado

5093Buick-GMC, Inc., 581 So.2d 637, 638 (Fla. 1st DCA 1991)("[t]he

5104appellate courts have not viewed favorably arguments that short

5113delays in requesting a hearing should result in a forfeiture of

5124substantive rights"); Glantzis v. State Automobile Mutual

5132Insurance Company, 573 So.2d 1049 (Fla. 4th DCA 1991)(insurance

5141company equitably estopped from relying upon statute of

5149limitations in insureds' action to compel arbitration where

5157insurance company "abandon[ed]" arbitration after having

5163initially voluntarily agreed to accept insureds' demand for

5171arbitration and thereby "lulled [insureds] into [a] false sense

5180of security" that there was no need for them to file suit);

5192Stewart v. Department of Corrections, 561 So.2d 15, 16 (Fla. 4th

5203DCA 1990)(state employee should have been allowed to pursue

5212appeal of his dismissal from employment, notwithstanding that his

5221attorney filed appeal with Public Employees Relations Commission

"5229one business day after the time limitation had run," where late

5240filing did not result in prejudice to employing agency; error

5250not to have applied "doctrine of equitable tolling"); Coon

5260Clothing Company, Inc., v. Eggers, 560 So.2d 1357 (Fla. 3d DCA

52711990)("[i]t has long been the public policy of Florida that

5282litigation should, whenever possible, be resolved on the merits

5291rather than on the basis of a procedural default"); Rothblatt v.

5303Department of Health and Rehabilitative Services, 520 So.2d 644,

5312645 (Fla. 4th DCA 1988)(filing of request for formal

5321administrative hearing six days after May 13, 1987, filing

5330deadline did not result in waiver of appellant's right to such

5341hearing where appellant's attorney "gave the request for formal

5350hearing to the firm's receptionist on May 11, 1987, to send by

5362Federal Express the next day, and did not know it was instead

5374sent about a week later, until she received a copy of the final

5387order").

5389RECOMMENDATION

5390Based upon the foregoing Findings of Fact and Conclusions of

5400Law, it is hereby

5404RECOMMENDED that the Department enter an order finding that

5413Petitioners' petition challenging the proposed denial of their

5421Application is not time-barred and remanding the matter to the

5431Division of Administrative Hearings for a Section 120.57(1)

5439hearing on the merits of Petitioners' challenge.

5446DONE AND ENTERED in Tallahassee, Leon County, Florida, this

54556th day of February, 1997.

5460___________________________________

5461STUART M. LERNER

5464Administrative Law Judge

5467Division of Administrative Hearings

5471The DeSoto Building

54741230 Apalachee Parkway

5477Tallahassee, Florida 32399-1550

5480(904) 488-9675 SUNCOM 278-9675

5484Fax Filing (904) 921-6847

5488Filed with the Clerk of the

5494Division of Administrative Hearings

5498this 6th day of February, 1997.

5504ENDNOTES

55051/ Neither party expressed any objection when the undersigned

5514announced, at the evidentiary hearing, that he intended to take

5524such action.

55262/ Although Adair anticipated that the Department would issue a

5536notice "toward the end of th[e] month [of August]," it was also

5548his expectation that, because he was Petitioners' agent, the

5557Department would send him a copy of any notice it issued.

55683/ A Section 120.57 hearing is intended "to formulate agency

5578action, not to review action taken earlier and preliminarily."

5587Young v. Department of Community Affairs, 625 So.2d 831, 833

5597(Fla. 1993); Hamilton County Board of County Commissioners v.

5606Department of Environmental Regulation, 587 So.2d 1378, 1387

5614(Fla. 1st DCA 1991); Boca Raton Artificial Kidney Center, Inc.,

5624v. Florida Department of Health and Rehabilitative Services, 475

5633So.2d 260, 262 (Fla. 1st DCA 1985); DeCarion v. Department of

5644Environmental Regulation, 445 So.2d 619, 621 (Fla. 1st DCA 1984);

5654Capeletti Brothers, Inc., v. Department of General Services, 432

5663So.2d 1359, 1364 (Fla. 1st DCA 1983); McDonald v. Department of

5674Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

56854/ "Receipt of notice of agency action" and "receipt of notice

5696of proposed agency action," as used in Rule 62-103.155, Florida

5706Administrative Code, are defined in subsection (6) of the rule as

5717follows:

5718(a) "Receipt of notice of agency action"

5725means receipt of written notice of final

5732agency action, as prescribed by Department

5738rule, or the publication, pursuant to

5744Department rule, of notice of final agency

5751action, whichever first occurs.

5755(b) "Receipt of notice of proposed

5761agency action" means receipt of written

5767notice (such as a letter of intent) that the

5776Department proposes to take certain action,

5782or the publication pursuant to Department

5788rule of notice of proposed agency action,

5795whichever first occurs.

57985/ Although the Department may have made oral and written

5808statements to Adair that gave him reason to anticipate that the

5819Department would issue a notice of denial "toward the end of

5830th[e] month [of August]," the making of these statements did not

5841constitute notice sufficient to afford Petitioners a clear "point

5850of entry" to pursue a Section 120.57(1) proceeding on the

5860proposed denial their application and to therefore trigger the

5869commencement of the time period within which such a proceeding

5879had to be requested. See City of St. Cloud v. Department of

5891Environmental Regulation, 490 So.2d 1356, 1358 (Fla. 5th DCA

59001986); Sims v. Board of Trustees of North Florida Junior

5910College, 444 So.2d 1115, 1117 (Fla. 1st DCA 1984); Sterman v.

5921Florida State University, 414 So.2d 1102, 1103-04 (Fla. 1st DCA

59311982).

5932COPIES FURNISHED:

5934Harry A. Stewart, Esquire

5938Joan T. Dwoskin, Esquire

5942Akerman, Senterfitt and Eidson, P.A.

5947Post Office Box 231

5951Orlando, Florida 32801

5954Jeffrey Brown

5956Assistant General Counsel

5959Department of Environmental Protection

59633900 Commonwealth Boulevard

5966Tallahassee, Florida 32399-3000

5969Virginia B. Wetherell, Secretary

5973Douglas Building

59753900 Commonwealth Boulevard

5978Tallahassee, Florida 32399-3000

5981Perry Odom

5983General Counsel

5985Department of Environmental Protection

59893900 Commonwealth Boulevard

5992Tallahassee, Florida 32399-3000

5995NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6001All parties have the right to submit written exceptions within 15

6012days from the date of this recommended order. Any exceptions to

6023this recommended order should be filed with the agency that will

6034issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 03/09/1998
Proceedings: Notice of Appeal filed. (filed by: Donald Flynn )
Date: 02/23/1998
Proceedings: (From A. Koski, H. Stewart) Stipulation for Substitution of Counsel filed.
Date: 02/17/1998
Proceedings: Final Order filed.
PDF:
Date: 02/13/1998
Proceedings: Agency Final Order
PDF:
Date: 02/13/1998
Proceedings: Recommended Order
Date: 01/29/1998
Proceedings: Respondent`s Response to Petitioner`s Written Exceptions to the Recommended Order filed.
Date: 01/09/1998
Proceedings: Petitioner`s Written Exceptions to the Recommended Order filed.
Date: 12/31/1997
Proceedings: (Respondent) Order (filed via facsimile).
PDF:
Date: 12/12/1997
Proceedings: Recommended Order
PDF:
Date: 12/12/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 08/26-27/97.
Date: 11/20/1997
Proceedings: (Petitioner`s Proposed Recommended Order on Disk) Disk filed.
Date: 11/18/1997
Proceedings: Respondent`s Proposed Recommended Order; Disk filed.
Date: 11/13/1997
Proceedings: Notice of Filing; Petitioner`s Proposed Recommended Order filed.
Date: 11/12/1997
Proceedings: Respondent`s Proposed Recommended Order filed.
Date: 11/06/1997
Proceedings: Order sent out. (Petitioners` renewed request for leave to amend original petition is denied; Respondent`s pending motion is granted)
Date: 11/04/1997
Proceedings: Department of Environmental Protection`s Response to Order Directing Response to Petitioner`s Renewed Request for Leave to Amend Their Petition (filed via facsimile).
Date: 10/23/1997
Proceedings: Order Directing Response sent out. (Respondent to file response within 12 days as to the Petitioners renewed request for leave to amend their petition)
Date: 10/22/1997
Proceedings: Donald and Beverly Flynn`s response to order directing response to department of Environmental Protection`s motion to dismiss amended petition filed.
Date: 10/14/1997
Proceedings: Order Directing Response sent out. (Petitioner`s to respond to Respondent`s motion by 10/20/97)
Date: 10/10/1997
Proceedings: (Respondent) Motion to Dismiss Petitioner`s Amended Petition filed.
Date: 10/02/1997
Proceedings: (Petitioners) Amended Petition Challenging Consolidated Notice of Denial of Environmental Resource Permit and Lease to Use Sovereign Submerged Lands and Request for Costs and Attorney`s Fees filed.
Date: 09/29/1997
Proceedings: (6 Volumes) Transcript filed.
Date: 09/26/1997
Proceedings: Letter to A. Cole from Harry Stewart (RE: delivery of transcript/no enclosures) (filed via facsimile).
Date: 09/24/1997
Proceedings: (Petitioners) Exhibits filed.
Date: 09/12/1997
Proceedings: Video Hearing Held; see case file for applicable time frames.
Date: 09/02/1997
Proceedings: (Petitioners) Notice of Taking Deposition Duces Tecum filed.
Date: 08/29/1997
Proceedings: Order Scheduling Continuation of Final Hearing sent out. (video hearing set for 9/12/97; 9:00am; Ft. Lauderdale & Tallahassee)
Date: 08/26/1997
Proceedings: Hearing Partially Held, continued to date not certain.
Date: 08/21/1997
Proceedings: (From D. MacLaughlin) Notice of Appearance of Co-Counsel for Department of Environmental Protection filed.
Date: 08/19/1997
Proceedings: Order Denying Petitioners` Motion for Change of Hearing Format sent out.
Date: 08/19/1997
Proceedings: Respondents Exhibits ; (Petitioners) Exhibits ; Petitioner`s Witness and Exhibit List (untitled) filed.
Date: 08/15/1997
Proceedings: (Petitioners) Notice of Telephone Hearing on Petitioners` Motion to change Hearing Format (8-15-97; 2:00pm) (filed via facsimile).
Date: 08/15/1997
Proceedings: Petitioners` Motion for Change of Hearing Format (filed via facsimile).
Date: 07/29/1997
Proceedings: (Respondent) Notice of Taking Deposition Duces Tecum filed.
Date: 07/07/1997
Proceedings: (From P. Cocotos) Notice of Appearance of Counsel for Department of Environmental Protection filed.
Date: 06/27/1997
Proceedings: Department of Environmental Protection`s Notice of Propounding (Separate) Interrogatories to Petitioners, Donald and Beverly Flynn; Department of Environmental Protection`s First Request for Production of Documents filed.
Date: 06/05/1997
Proceedings: Amended Notice of Hearing by Video Teleconference (Specifying Tallahassee Location) sent out. (hearing set for Aug. 26-27, 1997; 9:15am; Ft. Lauderdale & Tallahassee)
Date: 05/13/1997
Proceedings: Notice of Hearing by Video Teleconference sent out. (Video Hearing set for August 26-27, 1997; 9:15am; Tallahassee & Ft. Lauderdale)
Date: 04/10/1997
Proceedings: Department`s Response to Order Regarding Scheduling (filed via facsimile).
Date: 03/27/1997
Proceedings: Order sent out. CASE REOPENED, parties to file response regarding hearing scheduling within 14 days.
PDF:
Date: 03/21/1997
Proceedings: Remanded from the Agency
Date: 03/21/1997
Proceedings: Order of Remand (from DEP) filed.
Date: 03/21/1997
Proceedings: Transcripts and Exhibits Returned from the Agency filed.
PDF:
Date: 02/06/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 12/03/96.
Date: 01/30/1997
Proceedings: DEP`s Proposed Recommended Order on Motion to Dismiss filed.
Date: 01/30/1997
Proceedings: Petitioners` Proposed Recommended Order on Respondent`s Motion to Dismiss filed.
Date: 01/13/1997
Proceedings: Transcript of Proceedings filed.
Date: 12/06/1996
Proceedings: Order sent out. (10/30/96 Notice of Hearing sent out is vacated)
Date: 12/03/1996
Proceedings: Final Telephonic Hearing Held; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file.
Date: 12/02/1996
Proceedings: Notice of Filing; Affidavit of V. Casini with a copy of Respondent`s Notice of Denial dated 8/27/96; Affidavit of K. Skibicki; Affidavit of J. Adair with copies of portion of "Joint application for Environmental Resource Permit/Authorization to use state
Date: 11/27/1996
Proceedings: (Petitioners) Notice of Filing; Affidavit of V. Casini with a copy of Respondent`s Notice of Denial, dated 8/27/96; Affidavit of K. Skibicki; Affidavit of J. Adair filed.
Date: 11/22/1996
Proceedings: (Respondent) Index to Exhibits and Notice of Filing; Exhibits filed.
Date: 11/14/1996
Proceedings: Order Granting Continuance sent out. (evidentiary hearing cancelled & reset for 12/3/96)
Date: 11/14/1996
Proceedings: Notice of Evidentiary Hearing (On Motion to Dismiss) sent out. (telephonic conference call set for 12/3/96; 9:30am)
Date: 11/13/1996
Proceedings: Petitioner`s Motion for Postponement of Hearing Date (filed via facsimile).
Date: 10/30/1996
Proceedings: Notice of Hearing sent out. (hearing set for Feb. 27-28, 1997; 9:00am; Ft. Lauderdale; motion hearing set for 11/21/96)
Date: 10/30/1996
Proceedings: Order Requiring Prehearing Stipulation sent out.
Date: 10/28/1996
Proceedings: Order sent out. (evidentiary telephonic hearing on issue of Petitioners` petition being dismissed is set for 11/21/96; 9:30am)
Date: 10/25/1996
Proceedings: Petitioners` Response in Opposition to Motion to Dismiss filed.
Date: 10/18/1996
Proceedings: Agreed Response to Initial Order filed.
Date: 10/16/1996
Proceedings: Order sent out. (Petitioners to file response to motion to dismiss by 10/28/96)
Date: 10/15/1996
Proceedings: (Respondent) Motion to Dismiss Petition and Memorandum of Law in Support Thereof filed.
Date: 10/11/1996
Proceedings: Initial Order issued.
Date: 10/07/1996
Proceedings: Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Consolidated Notice of Denial; Petition Challenging Consolidated Notice of Denial of Environmental Resource Permit and Lease to Use Sovereign Submerged Lands filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
10/07/1996
Date Assignment:
10/11/1996
Last Docket Entry:
03/09/1998
Location:
Fort Lauderdale, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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Related Florida Statute(s) (16):

Related Florida Rule(s) (5):