00-003482 Save The Manatee Club, Inc., vs. Joseph B. Whitley, Diane P. Whitley, And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, April 4, 2001.

Summary: Person who filed untimely petition to contest permit is not entitled to equitable tolling under the Machules doctrine when adversarial party does not mislead or lull protesting party into inaction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAVE THE MANATEE CLUB, INC. , )

)

Petitioner , )

)

vs. ) Case No. 00-3482

)

JOSEPH B. WHITLEY , DIANE P. )

WHITLEY, and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION , )

)

Respondents. )

_____________________________)

RECOMMENDED ORDER

Administrative Law Judge (" ALJ") Daniel Manry conducted the

administrative hearing of this case on January 24, 2001, in

Viera, Florida.

APPEARANCES

For Petitioner : Scott M. Price, Esquire

J.A. Jurgens , P.A.

505 Wekiva Springs Road, Suite 500

Longwood, Florida 32779

and

Robert Goodwin, Esquire

Save the Manatee Club, in pro per

For Respondents William E. "Ted" Guy, Esquire

Joseph and John S. Yudin, Esquire

Diane Whitley : Guy and Yudin, P.A.

55 East Ocea n Boulevard

Stuart, Florida 34995-3386

For Respondent M.B . Adelson IV, Esquire

Department of Andrew J. Baumann, Esquire

Environmental Department of Environmental

Protection: Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues in this proceeding are whether the petition for

administrative hearing is barred by Sections 373.427(2)(c) and

120.569(2)(c), Florida Statutes (2000), or must be accepted by

the agency pursuant to the judicial doctrine of equitable

tolling. (All chapter and section references are to Florida

Statutes (2000).)

PRELIMINARY STATEMENT

On July 24, 2000, Respondent, Department of Environmen tal

Protection (" DEP"), issued to Respondents, Joseph and Diane

Whitley (" Whitley"), a Consolidated Notice of Intent to Issue

Environmental Resource Permit and Grant a Lease to Use Sovereign

Submerged Lands (the "Notice of Intent"). On August 14, 2000,

Petitioner filed a Petition for Formal Administrative Hearing to

contest the Notice of Intent (the "Petition").

DEP forwarded the Petition to the Division of

Administrative Hearings ("DOAH") on August 18, 2000. On

September 7, 2000, Whitley filed a Motion to Dismiss alleging

that the Petition was untimely. Neither Petitioner nor DEP

responded to the Motion. On September 20, 2000, the ALJ issued

a Recommended Order of Dismissal that adopted by reference the

factual and legal matters set forth in the Motion to Dismiss.

Petitioner and DEP timely filed exceptions to the

Recommended Order of Dismissal. In the exceptions, Petitioner

and DEP raised factual and legal matters that neither party had

raised in response to the Motion to Dismiss nor had otherwise

submitted to the ALJ. On October 30, 2000, DEP remanded the

case to DOAH. The Order of Remand (the "remand") requested the

ALJ to make a factual inquiry and determine whether the Petition

was timely filed in light of the circumstances that occurred

between the time DEP issued the Notice of Intent on July 24,

2000, and the time DEP referred the matter to DOAH on August 18,

2000.

Whitley filed motions and supporting legal memoranda,

arguing that the ALJ should refuse the remand. Petitioner and

DEP filed responsive motions and legal memoranda in support of

the remand. On January 24, 2001, the ALJ conducted an

evidentiary hearing in Viera, Florida, to resolve the factual

issues raised by the parties in the several motions supporting

and opposing the remand.

At the hearing, Petitioner submitted Exhibits 1-4 for

admission in evidence. Whitley presented the testimony of one

witness. The parties entered into joint stipulations concerning

the remaining issues of fact and entered legal argument on the

record concerning the relevant issues of law.

The identity of the witnesses and exhibits, attendant

rulings, if any, and the stipulations of fact by the parties are

set forth in the Transcript of the hearing filed on February 20,

2001. Pursuant to the agreement of the parties, the parties

filed their respective Proposed Recommended Orders (" PROs") on

March 7, 2001.

The ALJ requested that discussions in the PROs include a

discussion of certain issues. Those issues are whether: the ALJ

has legal authority to refuse the remand; the 14-day time limit

in Section 373.427(2)(c) for filing the Petition is properly

interpreted as a procedural or substantive requirement; the

legislative change embodied in Section 120.569(2)(c) requires

dismissal of an untimely petition; relevant case law applies the

so-called Machules doctrine of equitable tolling differently,

depending on whether an agency is merely a facilitating party in

a proceeding or is an adversarial party and a real party in

interest; and the Machules doctrine prohibits dismissal of the

Petition based on the facts in this case.

FINDINGS OF FACT

1. In January of 2000, Whitley applied to DEP for permits

to repair hurricane damage to a marina facility (the " Whitley

Marina"). The Whitley Marina is located within sovereign

submerged lands in Brevard County on the west side of the Indian

River in Cocoa, Florida.

2. On July 24, 2000, DEP issued the Notice of Intent from

DEP's Central District office in Orlando, Florida. The permit

number is 05-126125-002.

3. The Notice of Intent expressly provided that petitions

for an administrative hearing must be filed within 14 days of

receipt of the Notice of Intent. Petitioner received the Notice

of Intent on July 26, 2000.

4. Counting July 27, 2000, as the first day of the 14-day

time limit prescribed in the Notice of Intent, the Notice of

Intent required Petitioner to file the Petition no later than

August 9, 2000. Petitioner filed the Petition on August 14,

2000, which was 19 days after Petitioner received the Notice of

Intent and five days after the expiration of the 14-day time

limit prescribed in the Notice of Intent.

5. The 14-day time limit in the Notice of Intent was based

on the 14-day time limit prescribed in Section 373.427(2)(c).

Unlike the Notice of Intent, however, Section 373.427(2)(c )

does not state that the 14-day time limit begins to run on the

date that the Notice of Intent is received. Rather, Section

373.427(2)(c) provides, in relevant part:

Any petition for an administrative hearing

pursuant to ss. 120.569 and 120.57 must be

filed within 14 days of the notice of

consolidated intent to grant or deny .

( emphasis supplied)

6. The literal terms of Section 373.427(2)(c) required the

Petition to be filed within 14 days of the Notice of Intent

issued on July 24, 2000. Counting July 25, 2000, as the first

day of the 14-day time limit prescribed in Section 73.427(2)(c),

Section 373.427(2)(c) required the Petition to be filed no later

than August 7, 2000. Petitioner filed the Petition August 14,

2000. August 14, 2000, was 21 days after the date of the Notice

of Intent on July 24, 2000, and seven days after the expiration

of the 14-day time limit.

7. The Notice of Intent also incorporated by reference

Florida Administrative Code Rules 28-106.111(2) and 62-

110.106(3)(a) and (4). (Unless otherwise stated, all references

to rules are to rules promulgated in the Florida Administrative

Code in effect on the date of this Recommended Order.) Apart

from the issue discussed in paragraphs 5 and 6, the two rules

referred to in the Notice of Intent do not prescribe time limits

that modify, enlarge, or contravene the 14-day time limit

prescribed in the Notice of Intent and Section 373.427.

8. Rule 28-106.111(2), in relevant part, provides:

Unless otherwise provided by law , persons

seeking a hearing on an agency decision

. . . shall file a petition for hearing with

the agency within 21 days of receipt of

written notice of the decision. ( emphasis

supplied)

9. The 21-day time limit prescribed in Rule 28-106.111(2)

is expressly limited to requests for an administrative hearing

for which a time limit is not "otherwise provided by law." The

time limit applicable to the Petition is otherwise provided by

law in Section 373.427(2)(c) as 14 days rather than the 21 days

prescribed in Rule 28-106.111(2). Rule 28-106.111(2) makes the

21-day time limit expressly inapplicable to the Petition filed

in this proceeding, and there is no conflict between the 21-day

time limit in the Rule and the 14-day statutory time limit in

Section 373.427(2)(c).

10. The Notice of Intent also referred to Rule 62-

110.106(3)(a). Rule 62- 110.l06(3)(a) prescribes four different

time limits for petitions to contest four different types of

agency action. Subparagraphs 1-3 in the rule pertain,

respectively, to permits governed by Chapter 403, hazardous

waste facility permits, and notices of violations. None of the

three types of agency action governed by subparagraphs 1-3 are

proposed in this proceeding. Therefore, the time limits in

subparagraphs 1-3 are inapplicable to the Petition.

11. Subparagraph 4 of Rule 62-110.106(3)(a) prescribes a

21-day time limit for filing petitions to challenge agency

action for permits "under statutes other than . . . section

373.427 ." ( emphasis supplied) Like Rule 28-106.111(2), Rule

62-110.106(3) makes its 21-day time limit expressly inapplicable

to the Petition because the Petition contests a proposed permit

that is governed by Section 373.427.

12. Notwithstanding the 14-day time limit prescribed in

Section 373.427(2)(c) and the express inapplicability of the 21-

day time limits in Rules 28-106.111(2) and 62-110.106(3)(a )4,

the respective attorneys for Petitioner and DEP incorrectly

concluded that Petitioner had 21 days to file the Petition. On

July 31, 2000, attorneys in DEP's Office of General Counsel

received by facsimile a letter from a staff attorney for

Petitioner. In relevant part, the letter stated:

Page 6 of the . . . [Notice of Intent]

indicates that "in accordance with rules 28-

106.111(2) and 62-10.106(3)(a)(4), petitions

for an administrative hearing must be filed

within 14 days of receipt of this written

notice."

I have reviewed each of the rules cited, and

each provides a period of 21 days within

which to file a petition requesting an

administrative hearing. Please confirm that

pursuant to Fla. Admin. Code R.28- 106(2) and

62-110.106(3)(a)(4), this organization has

21 days from receipt of the Department's

notice of its intended action within which

to file a petition requesting an

administrative hearing. . . .

( emphasis not supplied)

13. The first paragraph in the letter dated July 31, 2000,

was correct. It correctly quoted the Notice of Intent, and the

Notice of Intent correctly stated that the applicable time limit

for filing the Petition was 14 days. The Notice of Intent also

correctly stated that the 14-day time limit was in accordance

with Rules 28-106.111(2) and 62-110.106(3)(a )4 because the 21-

day time limits prescribed in the two rules do not apply to

permits for which time limits are otherwise provided by law in

Section 373.427(2)(c).

14. The second paragraph in the letter from Petitioner was

a mistake of law. The second paragraph incorrectly concluded as

a matter of law that Rules 28-106.111(2) and 62-110.106(3)(a )4

prescribe 21-day time limits for permits governed by Section

373.427. Although the two rules each prescribe a 21-day time

limit, the 21-day time limit in Rule 28-106.111(2) is expressly

limited to permits for which a time limit is not otherwise

provided by law, and the 21-day time limit in Rule 62-

110.106(3)(a) is expressly limited to permits other than those

governed by Section 373.427.

15. On August 1, 2000, the staff attorney for Petitioner

received a facsimile from DEP that joined in the mistake of law.

In a hand-written note, counsel for DEP stated in relevant part:

Thank you for your fax/letter of July 31,

2000 regarding the Whitley permit. . . .

Your reading of the rules is correct - the

time to file a petition should have

reflected 21 days, not 14 . I have notified

Central District staff, who will notify the

Whitleys of this error. Thank you for

calling this to our attention. ( emphasis not

supplied)

16. DEP replicated the mistake of law originated by

Petitioner. DEP's interpretation of its own statutes and rules

was incorrect for reasons previously stated and not repeated

here.

17. Petitioner relied on its own mistake of law and that

of DEP and filed the Petition within 21 days of the receipt of

the Notice of Intent. However, Petitioner filed the Petition

seven days after the expiration of the 14-day time limit

prescribed in Section 373.427(2)(c) and five days after

expiration of the 14-day time limit prescribed in the Notice of

Intent. ( Compare paragraphs 3 and 4 with paragraphs 5 and 6,

supra .)

18. Petitioner's facsimile to DEP on July 31, 2000, was

not a request for hearing. The facsimile did not request an

administrative hearing but merely inquired into the time for

filing such a request.

19. The facsimile on July 31, 2000, was not a petition for

administrative hearing. Rule 62-110.106(3)(a) requires a

petition for an administrative hearing to be in the form

required by Rules 28-106.201 or 28-106.301. The facsimile on

July 31, 2000, failed to satisfy the requirements of either

rule.

20. The Notice of Intent also referred to Rule 62-

110.106(4). That rule authorizes DEP to grant a request for

extension of the 21-day time limit prescribed in the rule. The

facsimile on July 31, 2000, did not request an extension of the

21-day time limit prescribed in Rule 62-110.106(3)(a).

21. Even if the facsimile were construed as having the

effect of a request for extension of the 14-day time limit

prescribed in Section 373.427(2)(c), DEP had no authority to

grant such a request. Rule 62-110.106(4) authorizes DEP to

grant a request to extend the 21-day time limit in the rule but

does not authorize DEP to grant a request to extend the 14-day

statutory time limit in Section 373.427(2)(c). As a state

agency, neither DEP nor DOAH can enlarge, modify, or contravene

the specific provisions of a statute, including the provisions

in Section 373.427(2)(c) that prescribe a 14-day time limit for

filing the Petition. Nor can a state agency interpret Rule 62-

110.106(4) in a manner that enlarges, modifies, or contravenes

the time limit in Section 373.427(2)(c). Sections 120.52(8)(c),

120.56, 120.57(1)(e), and 120.68(7)(d) and (e).

22. The authority in Rule 62-110.106(4) to grant an

extension of time is expressly limited in scope to a time limit

that is prescribed by an order or rule of an agency or a time

limit that is established in any notice given under such a rule.

The 14-day time limit at issue in this case is prescribed by

statute, rather than by an order or rule of DEP , and DEP issued

the 14-day time limit in the Notice of Intent pursuant to the

statutory authority in Section 373.427(2)(c) rather than the

Rules that prescribe a 21-day time limit.

23. Rule 28-106.111(3) authorizes DEP to grant a request

to extend the 21-day time limit in Rule 28-106.111(2). Even if

Rule 28-106.111(3) were deemed to authorize an extension of the

14-day time limit prescribed in Section 373.427(2)(c), the

Notice of Intent referred to Rule 28-106.111(2) rather than to

Rule 28-106.111(3). Moreover, the facsimile on July 31, 2000,

failed to comply with the prerequisites in Rule 28-106.111(3)

for an extension of time. The facsimile failed to satisfy the

requirement in Rule 28-106.111(3) that a request for extension

of time:

. . . contain a certificate that the moving

party has consulted with all other parties

. . . concerning the extension and that the

agency and any other parties agree to said

extension.

Petitioner did not consult with Whitley about an extension of

time prior to sending the facsimile on July 31, 2000.

24. Petitioner's noncompliance with the 14-day time limit

in Section 373.427(2)(c) is not a minor infraction. Enforcement

of the delay caused by Petitioner's noncompliance would have the

effect of enlarging or modifying the 14-day statutory time limit

by five to seven days, or approximately 36 to 50 percent.

25. Enforcement of the delay caused by Petitioner's

noncompliance with the 14-day time limit in Section

373.427(2)(c) would prejudice Whitley. It would effectively

deny Whitley the right to a defense based on a statutory bar to

untimely petitions that the legislature authorized in Section

373.427(2)(c). See also Section 120.569(2)(c)(requiring

dismissal of untimely petitions) and relevant discussion in

paragraphs 43-48, infra .

26. Whitley did not mislead or lull Petitioner into

noncompliance with the 14-day statutory time limit in Section

373.427(2)(c). DEP misled or lulled Petitioner into

noncompliance.

27. DEP is a nominal, or facilitating, party in this

proceeding rather than an adversarial party with a stake in the

outcome of the proceeding. Petitioner and Whitley are the

adversarial parties in this proceeding whose substantial

interests will be affected by the outcome of the proceeding.

Petitioner's adversary in this proceeding did not mislead or

lull Petitioner into noncompliance with the 14-day time limit

prescribed in Section 373.427(2)(c).

28. The remaining Findings of Fact are based solely on the

factual stipulations between the parties. Whitley and DEP had

actual knowledge that Petitioner intended to request an

administrative hearing to challenge the Notice of Intent.

Whitley knew in June of 2000 that Petitioner opposed the

proposed permit. DEP knew of Petitioner's intent to request an

administrative hearing when DEP received the facsimile from

Petitioner on July 31, 2000.

29. The facsimile from Petitioner on July 31, 2000, and

the response from DEP on August 1, 2000, were not forwarded to

DOAH and were not part of the record before the ALJ when the ALJ

issued the original Recommended Order of Dismissal. However,

both documents were part of the record when DEP considered the

Recommended Order of Dismissal and issued the remand.

30. Prior to referring the matter to DOAH, DEP determined

that the matters contained in the facsimile and response from

DEP were sufficient to initiate a proceeding conducted pursuant

to Sections 120.569 and 120.57(1). No trick, deception, or

deceptive practice was utilized to prevent Petitioner from

responding to the Motion to Dismiss that Whitley filed after DEP

referred the matter to DOAH.

CONCLUSIONS OF LAW

31. DOAH has jurisdiction over the subject matter and

parties in this proceeding. The parties received adequate

notice of the administrative hearing.

32. Although Florida courts have recognized that state

agencies have no statutory authority to remand a case to DOAH,

courts have generally approved of such remands and recognized

that it is within the discretion of an ALJ to accept or refuse

the remand. Shaker Lakes Apartments Company v. Dolinger , 714

So. 2d 1040, 1041-1042 (Fla. 1st DCA 1998) ; Department of

Environmental Protection v. Department of Management Services,

Division of Administrative Hearings , 667 So. 2d 369, 370-371

(Fla. App. 1st DCA, 1995), Collier Development Corporation v.

Department of Environmental Regulation , 592 So. 2d 1107, 1109

(Fla. 2d DCA 1991) ; Manasota-88, Inc. vemor , 545 So. 2d 439,

441-442 (Fla. 2d DCA 1989) ; Miller v. State DER , 504 So. 2d 1325

(1st DCA, 1987) ; Humana, Inc. v. Department of Health and

Rehabilitative Services , 492 So. 2d 388, 393 (Fla. 4th DCA

1986) ; Cohn v. Dept. of Professional Regulation , 477 So. 2d

1039, 1047 (Fla. 3d DCA, 1985) ; Henderson Signs v. Florida

Department of Transportation , 397 So. 2d 769, 772 (Fla. 1st DCA

1981); and Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778, 786 (Fla. 1st DCA 1981). No statutory authority

specifically requires the ALJ to refuse the Order of Remand from

DEP, and the remand does not enlarge, modify, or contravene

applicable statutes.

33. DEP is not barred from basing its remand on facts not

in evidence before the ALJ when the ALJ issued the Recommended

Order of Dismissal. Like other proceedings conducted pursuant

to Section 120.57(1), a remand requires the ALJ to conduct a de

novo hearing for the limited purposes stated in the remand.

Section 120.57(1)(e) and ( i). In the de novo hearing, all

parties have a right to cross-examine the evidence relied on by

DEP as a basis for the remand. Board of Medicine v. Mata , 561

So. 2d 364, 365-367 (Fla. 1st DCA 1990).

34. Prior to referring the initial proceeding to DOAH on

August 18, 2000, DEP determined that the Petition was filed in a

timely manner within the meaning of Section 373.427(2)(c). None

of the parties cited any legal authority to support the notion

that DEP's determination of timeliness is binding or enjoys a

presumption of correctness. An administrative proceeding

authorized in Section 120.57(1) is a de novo proceeding that is

conducted to formulate proposed agency action rather than to

review final agency action already taken. Section 120.57(1)( i) ;

McDonald v. Department of Banking and Finance , 346 So. 2d 569,

584 (Fla. 1st DCA 1977).

35. Florida courts require state agencies to provide

persons whose substantial interests are affected by proposed

agency action with a clear point of entry for judicial review.

That review begins with an administrative proceeding authorized

in Chapter 120. Sections 120.569 and 120.57(1).

36. The clear point of entry doctrine was first enunciated

in Capeletti Brothers, Inc. v. State, Department of

Transportation , 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert.

denied , 368 So. 2d 1374 (Fla. 1979). Since 1979, the doctrine

has been followed by Florida courts. See , e.g. , Environmental

Resource Associates of Florida, Inc., v. Department of General

Services , 624 So. 2d 330, 332-333 (Fla. 1st DCA 1993)

(concurring opinion of Judge Ervin) ; Florida League of Cities,

Inc. v. Administration Commission , 586 So. 2d 397, 413 (Fla. 1st

DCA 1991). See also Southeast Grove Management, Inc. v.

McKinness , 578 So. 2d 883 (Fla. 1st DCA 1991) ; Capital Copy,

Inc. v. University of Florida , 526 So. 2d 988 (Fla. 1st DCA

1988) ; Lamar Advertising Company v. Department of

Transportation , 523 So. 2d 712 (Fla. 1st DCA 1988) ; City of St.

Cloud v. Department of Environmental Regulation , 490 So. 2d 1356

(Fla. 5th DCA 1986) ; Henry v. Department of Administration,

Division of Retirement , 431 So. 2d 677 (Fla. 1st DCA 1983). See

also Shirley S., "In Search of a Clear Point of Entry," 68 Fla.

B.J. 61 (May 1994).

37. An agency provides a clear point of entry to a person

who has standing to challenge proposed agency action by

satisfying several fundamental due process requirements. First,

the agency must notify the person of the proposed agency action.

In addition, the notice must inform the person of the right to

request an administrative hearing pursuant to Section 120.57 and

inform the person of the time limits within which the person

must file a request for hearing. Section 120.569(1). If the

person fails to file a request for hearing within the time

prescribed in the clear point of entry, the person waives the

right to request a hearing. See , e.g. , Environmental Resource ,

624 So. 2d at 331-332 (citing Capeletti Brothers , 368 So. 2d at

348).

38. The evidence in this case shows that DEP satisfied the

requirements of the clear point of entry doctrine. On July 26,

2000, DEP provided Petitioner with written notice in the Notice

of Intent that Petitioner had 14 days to file a petition for

administrative hearing. DEP provided Petitioner with adequate

and sufficient notice of the 14-day time limit prescribed in

Section 373.427(2)(c), and the notice of the 14-day time limit

was consistent with Rules 28-106.111(2) and 62-110.106(3)(a )4.

39. Neither DEP nor the ALJ sitting for the agency head

can modify, enlarge, or contravene the 14-day time limit in

Section 373.427(2)(c) on Petitioner's clear point of entry. Nor

can DEP or the ALJ construe Rules 28-106.111(2) and 62-

110.106(3)(a )4 in a manner that modifies, enlarges, or

contravenes the 14-day time limit established by the legislature

in Section 373.427(2)(c). A state agency is prohibited by

statute and case law from such statutory amendment whether the

amendment is attempted by rule or by the exercise of agency

discretion. Sections 120.52(8)(c), 120.57(1)(e), and

120.68(e )1; DeMario v. Franklin Mortgage & Investment Co., Inc. ,

648 So. 2d 210, 213-214 (Fla. 4th DCA 1994), rev . denied , 659

So. 2d 1086 (Fla. 1995)(agency lacks authority to impose time

requirement not found in statute) ; Department of Health and

Rehabilitative Services v. Johnson and Johnson Home Health Care,

Inc. , 447 So. 2d 361, 363 (Fla. 1st DCA 1984)(agency action that

ignores some statutory criteria and emphasizes others is

arbitrary and capricious); Booker Creek Preservation, Inc. v.

Southwest Florida Water Management District , 534 So. 2d 419, 423

(Fla. 5th DCA 1988)(agency cannot vary impact of statute by

creating waivers or exemptions) reh. denied . Where an agency

rule conflicts with a statute, the statute prevails. Hughes v.

Variety Children's Hospital , 710 So. 2d 683, 686 (Fla. 3d DCA

1998); Johnson v. Department of Highway Safety & Motor Vehicles,

Division of Driver's Licenses , 709 So. 2d 623, 624 (Fla. 4th DCA

1998) ; Willette v. Air Products , 700 So. 2d 397, 401 (Fla. 1st

DCA 1997), reh'g denied ; Florida Department of Revenue v. A.

Duda & Sons, Inc. , 608 So. 2d 881, 884 (Fla. 5th DCA 1992),

reh'g denied ; Department of Natural Resources v. Wingfield

Development Company , 581 So. 2d 193, 197 (Fla. 1st DCA 1991)

reh. denied . See also Capeletti Brothers, Inc. v. Department of

Transportation , 499 So. 2d 855, 857 (Fla. 1st DCA 1987)(rule

cannot expand statutory coverage) rev. denied , 509 So. 2d 1117.

40. The express terms of Rules 28-106.111(2) and 62-

110.106(3)(a )4 clearly state that neither rule purports to

establish a time limit for petitions contesting a permit under

Section 373.427. Rules 28-106.111(2) and 62-110.106(3)(a )4 are

valid existing rules. DEP cannot deviate from a valid existing

rule. Section 120.68(7)(e )2. An agency's deviation from a

valid existing rule is invalid and unenforceable. Federation of

Mobile Home Owners of Florida, Inc. v. Florida Manufactured

Housing Association, Inc. , 683 So. 2d 586, 591-592 (Fla. 1st DCA

1996) ; Gadsden State Bank v. Lewis , 348 So. 2d 343, 346-347

(Fla. 1st DCA 1977) ; Price Wise Buying Group v. Nuzum , 343 So.

2d 115, 116 (Fla. 1st DCA 1977).

41. Petitioner's noncompliance with the 14-day time limit

prescribed in Section 373.427(2)(c) is not a jurisdictional bar.

Florida courts holding that noncompliance with a statutory time

limit is a jurisdictional bar generally do so on the basis of

express statutory language. Relying on language in Section

194.171(6), for example, the Florida Supreme Court held that the

60-day filing requirement in Section 194.171(2) is a

"jurisdictional statute of nonclaim." Markham v. Neptune

Hollywood Beach Club , 527 So. 2d 814, 815 (Fla. 1988). Accord

Wal-Mart Stores, Inc. v. Day , 742 So. 2d 408, 409 (Fla. 5th DCA

1999); Palmer Trinity Private School, Inc. v. Robbins , 681 So.

2d 809 (Fla. 3d DCA 1996) ; Hall v. Leesburg Regional Medical

Center , 651 So. 2d 231 (Fla. 5th DCA 1995) ; Walker v. Garrison ,

610 So. 2d 716 (Fla. 4th DCA 1992) ; Markham v. Moriarty , 575 So.

2d 1307 (Fla. 4th DCA 1991), cert. denied , 502 U.S. 968, 112 S.

Ct. 440 (1991) ; Gulfside Interval Vacations, Inc. v. Schultz ,

479 So. 2d 776 (Fla. 2d DCA 1985), rev. denied , 488 So. 2d 830

(Fla. 1986). See also Davis v. Macedonia Housing Authority , 641

So. 2d 131, 132 (Fla. 1st DCA 1994)(the 60-day filing

requirement in Section 194.171(2) is a jurisdictional bar to an

action to contest loss of tax exemption for 1990). Cf. Pogge v.

Department of Revenue , 703 So. 2d 523, 525-526 (Fla. 1st DCA

1997)(the 60-day filing requirement in Section 72.011(2) is a

jurisdictional bar to an action contesting the assessment of

taxes but was not a jurisdictional bar to an action for a refund

of taxes prior to 1991 when the legislature amended former

Section 72.011(6) to delete express language that Section 72.011

was inapplicable to refunds); Mikos v. Parker , 571 So. 2d 8, 9

(Fla. 2d DCA 1990)(the 60-day filing requirement in Section

194.171 was not a jurisdictional bar to a claim for refund of

taxes assessed in 1989). Compare City of Fernandina Beach v.

Page , 682 So. 2d 573 (Fla. 1st DCA 1996) ; Joyner v. Roberts , 642

So. 2d 826 (Fla. 1st DCA 1994); and Chihocky v. Crapo , 632 So.

2d 230 (Fla. 1st DCA 1994)(the failure to strictly comply with

statutory notice procedures may toll the running of the 60-day

filing requirement in Section 194.171(2)).

42. Section 373.427(2)(c) contains no express provision

that makes noncompliance with the 14-day time limit a

jurisdictional bar to a petition for administrative hearing.

Rather, Section 373.427(2) expressly provides that it

establishes procedural requirements for concurrent review of

applications for consolidated permits.

43. Section 120.569(2)(c) requires state agencies,

including DEP, to review petitions to determine whether they

comply with the standards prescribed in Section 120.54(5)(b )4

and whether they are filed in a timely manner. The statute

requires DEP to dismiss a petition for administrative hearing if

the petition fails to comply with the requisite standards or is

"untimely filed." In relevant part, Section 120.569(2)(c)

provides:

A petition shall be dismissed if it is not

in compliance with these requirements or it

has been untimely filed. Dismissal of a

petition shall, at least once, be without

prejudice to petitioner's filing a timely

amended petition curing the defect, unless

it conclusively appears from the face of the

petition that the defect cannot be cured.

( emphasis supplied)

44. If a petition is untimely, the temporal defect cannot

be cured in a timely amended petition. It follows that failure

to file a petition within the 14-day time limit prescribed in

Section 373.427(2)(c) is a temporal defect that cannot be cured

within the meaning of Section 120.569(2)(c).

45. The for egoing analysis of Section 120.569(2)(c) is

consistent with legislative intent. The Florida Legislature

enacted Section 120.569(2)(c) in 1998. Chapter 98-200, Laws of

Florida , Section 4. The legislative history makes clear that

Section 120.569(2)(c) is intended to provide a statutory bar to

the subsequent filing of a petition if a subsequent amended

petition cannot cure the defect in the original petition. In

relevant part, the legislative explanation of the proposed

changes contained on page two of CS/ HB 1509 provides:

The bill would create . . . a bar to the

continued filing a petition [sic] if the

subsequent amended petitions do not cure the

identified defect.

46. Noncompliance with either the 14-day time limit in

Section 373.427(2)(c) or the requirement in Section

120.569(2)(c) for dismissal of an untimely petition is not a

jurisdictional bar to filing a petition for administrative

hearing. Rather, noncompliance with time limits in Sections

373.427(2)(c) and 120.569(2)(c) admits a defense analogous to a

statute of limitations. Milano v. Moldmaster, Inc. , 703 So. 2d

1093, 1094-1095 (Fla. 4th DCA 1997) reh. en banc clarification

and certification . Whitley asserted that defense in the Motion

to Dismiss that the ALJ granted in the Recommended Order of

Dismissal.

47. The conclusion that noncompliance with Sections

373.427(2)(c) and 120.569(2)(c) admits a defense based on a

statutory bar is consistent with the approach followed by

federal courts. In Espinoza v. Missouri Pacific Railroad Co. ,

754 F.2d 1247, 1250 (5th Cir . 1985), for example, the court held

that the 90-day filing requirement in 42 U.S.C . Section 2000e-

5(f)(1) is not a jurisdictional prerequisite to suit but is a

statute of limitations subject to the doctrine of equitable

tolling.

48 . The Supreme Court has adopted a similar approach. In

Irwin v. Department of Veterans Affairs , 498 U.S. 89, 92, 111 S.

Ct. 453, 455 (1990), the Court held that the 30-day time limit

prescribed in 42 U.S.C. Section 2000e-16(c) is not

jurisdictional but creates a " rebuttable presumption of

equitable tolling." Irwin , 498 U.S. at 95-96, 111 S. Ct . at

457.

49. Florida courts have applied the doctrine of equitable

tolling to excuse an otherwise untimely request for an

administrative proceeding when four requirements are satisfied.

First, the time limit is not jurisdictional. Cf . Environmental

Resource Associates of Florida, Inc. v. State, Department of

General Services , 624 So. 2d 330 (Fla. 1st DCA 1993)(Judge

Zehmer dissenting, in relevant part, because the 21-day time

limit in that case was "not jurisdictional"); Castillo v.

Department of Administration, Division of Retirement , 593 So. 2d

1116 (Fla. 2d DCA 1992) (remanding the case for equitable

considerations related to the "not jurisdictional" 21-day period

for challenging agency action). Second, noncompliance with the

relevant time limit is a minor infraction. Stewart v.

Department of Corrections , 561 So. 2d 15 (Fla. 4th DCA

1990)(applying the doctrine to excuse a request for hearing that

was one day late) ; Environmental Resource , 624 So. at 332-333

(Judge Zehmer's dissenting opinion found that the delay was a

minor infraction). Third, noncompliance with the applicable

time limit does not result in prejudice to the other party.

Stewart , 561 So. 2d at 16. Fourth, noncompliance is caused by

the affected party's being misled or lulled into inaction, being

prevented in some extraordinary way from asserting his or her

rights, or having timely asserted his or her rights mistakenly

in the wrong forum. Machules v. Department of Administration ,

523 So. 2d 1132, 1133-1134 (Fla. 1988). See Burnaman, R.,

"Equitable Tolling in Florida Administrative Proceedings," 74

Fla. B.J. 60 (February 2000).

50. The first requirement for equitable tolling is

satisfied in this case. Neither the 14-day time limit in

Section 373.427(2)(c) nor the requirement in Section

120.569(2)(c) for a timely petition is a jurisdictional

prerequisite to the Petition filed in this proceeding. Irwin ,

498 U.S. at 92, 111 S. Ct. at 455 ; Milano , 703 So. 2d at 1094-

1095.

51. The second requirement for equitable tolling is not

satisfied in this case. Petitioner's noncompliance with the 14-

day time limit in Section 373.427(2)(c) was not a minor

infraction. Enforcement of the resulting delay would enlarge

the statutory 14-day time limit by five to seven days, or

approximately 36 to 50 percent. Compare the five-to-seven-day

enlargement sought by Petitioner with Vantage Healthcare

Corporation v. Agency for Health Care Administration , 687 So. 2d

306, 307 (Fla. 1st DCA 1997) (refusing to allow filing of

letters of intent one day late in certificate of need process);

and Environmental Resource , 624 So. 2d at 331 (court refused to

reverse a final order denying a hearing where the request for

hearing was four days late).

52. The third requirement of the doctrine of equitable

tolling is not satisfied in this case. The delay sought by

Petitioner would prejudice Whitley by denying Whitley a defense

based on a statutory bar of any petition that is filed after the

14-day time limit established by the legislature in Section

373.427(2)(c). Such a delay would also deny Whitley the

statutory right to dismiss the Petition pursuant to Section

120.569(2)(c).

53. The fourth requirement for the doctrine of equitable

tolling is more problematic than the first three. Petitioner

clearly showed that its noncompliance with the 14-day time limit

in Section 373.427(2)(c) was the result of being misled or

lulled into inaction by DEP. However, Petitioner did not show

that its noncompliance was the result of being misled or lulled

into inaction by Whitley.

54. The absence of culpability on the part of Whitley and

the relative interests of the parties in this proceeding are

significant factors that are properly considered in applying the

doctrine of equitable tolling. Whitley and Petitioner are the

only adversarial parties in this proceeding and the only parties

whose substantial interests will be affected by the outcome of

the proceeding (the "real parties in interest"). DEP is merely

a facilitating party because it has no stake in the outcome of

the proceeding.

55. The doctrine of equitable tolling was originally

limited to cases in which one party was lulled into inaction or

prevented from asserting his or her rights by the acts or

omissions of the adversarial party. In Irwin , for example, the

Court explained that the doctrine of equitable tolling generally

was limited to situations where a complainant was induced or

tricked by an adversary's misconduct into allowing a filing

deadline to pass. Irwin , 498 U.S. at 96, 111 S. Ct . at 455.

Like Irwin , Machules involved a dispute between an employer and

employee who were adversarial parties. In Machules , however,

the employer was a state agency.

56. The Florida Supreme Court has not limited the doctrine

of equitable tolling to cases in which a party is tricked or

induced by the misconduct of an adversary into allowing a time

limit to pass. The Florida Supreme Court has expanded the

doctrine to reach cases where a party allows a time limit to

pass through the party's own inadvertence or mistake of law. In

cases cited by the parties in this proceeding, however, courts

have limited the Machules doctrine to cases in which the state

agency is an adversarial party with a stake in the outcome of

the case.

57. In Machules , 523 So. 2d at 1132, a discharged agency

employee chose to pursue a claim through union grievance and

thereby allowed the time limits for requesting a hearing to

lapse. The court held that the employee did not waive the right

to a hearing.

58. The state agency and employee in Machules were

adversaries and the real parties in interest. Florida appellate

courts have generally constrained the doctrine of equitable

tolling to cases in which the state agency is an adversary and a

real party in interest. See , e.g. , Mathis v. Florida Department

of Corrections , 726 So. 2d 389 (Fla. 1st DCA 1999), the court

applied (state agency was adversary in claim for back pay by

agency's employee) ; Avante, Inc. v. Agency for Health Care

Administration , 722 So. 2d 965 (Fla. 1st DCA 1998)(state agency

was adversary in action to recover Medicaid payments) ; Unimed

Laboratory, Inc. v. Agency for Health Care Administration , 715

So. 2d 1036 (Fla. 3d DCA 1998)(state agency was adversary in

action to recover Medicaid payments); Haynes v. Public Employees

Relations Commission , 694 So. 2d 821 (Fla. 4th DCA 1997)(state

agency was adversary in employee dismissal action) ; Phillip v.

University of Florida , 680 So. 2d 508 (Fla. 1st DCA 1996)(state

agency was adversary in employee dismissal action) ; Abusalameh

v. Department of Business Regulation , 627 So. 2d 560 (Fla. 4th

DCA 1993)(state agency was adversary in license revocation

proceeding) ; Environmental Resource , 624 So. 2d at 331 (state

agency that was adversary in contract termination case did

nothing to cause four-day delay in filing request for hearing) ;

Castillo , 593 So. 2d at 1117 (state agency was adversary in

beneficiary's claim for retirement benefits) ; Department of

Environmental Regulation v. Puckett Oil Co. , 577 So. 2d 988

(Fla. 1st DCA 1991)(state agency was adversary in action seeking

reimbursement of cleanup costs); Stewart , 561

So. 2d 15 (state agency was adversary in employee dismissal

action).

59. Florida courts have been less inclined to apply the

doctrine of equitable tolling to cases in which a state agency

is only a facilitating party rather than an adversary and real

party in interest. In Vantage Healthcare , 687 So. 2d at 307, a

state agency awarded a certificate of need to an applicant after

allowing the applicant to file its letter of intent one day

late. The agency applied the doctrine of equitable tolling to

extend the applicable time limit by one day. The court held

that the doctrine of equitable tolling does not apply to the

certificate of need application process because the application

process:

is not comparable to . . . judicial or

quasi-judicial proceedings. We have found

no authority extending the doctrine of

equitable tolling to facts such as in the

present case.

Cf . Perdue v. TJ Palm Associates, Ltd. , 755 So. 2d 660 (Fla. 4th

DCA, 1999)(refusing to apply the doctrine of equitable tolling

to extend the time limit for challenging a notice of intent to

issue a conceptual permit approving overall master project

design).

60. When a state agency is an adversarial party, it is

appropriate to apply the doctrine of equitable tolling in a

manner that prevents the agency from benefiting from any act or

omission that misleads or lulls its adversary into noncompliance

with the applicable time limits for filing a petition for

administrative hearing. An agency that misleads or lulls its

adversary into noncompliance with a time limit is properly

deemed to have waived the time limit.

61. The rationale and equitable justification for the

doctrine of equitable tolling may be less compelling in cases

where an agency is merely a facilitating party and two or more

other parties are the adversarial parties and the real parties

in interest. If the agency misleads or lulls one of the

adversarial parties into noncompliance with an applicable time

limit, it is neither reasonable nor equitable to apply the

doctrine of equitable tolling in a manner that prejudices the

other adversarial party who did not cause the noncompliance by a

culpable act, omission, or similar misconduct. A facilitating

agency that misleads or lulls one party into noncompliance with

a time limit does not have the authority or capacity to waive a

statutory defense on behalf of the party's adversary who did not

cause the noncompliance.

62. If the doctrine of equitable tolling were applied in

this case to allow an untimely Petition, the result would

frustrate the equitable purpose of the doctrine. The result

would prejudice Whitley by waiving statutory defenses available

to Whitley in Sections 373.427(2((c) and 120.569(2)(c); even

though Whitley did not mislead Petitioner or lull Petitioner

into noncompliance with the 14-day statutory time limit

established by the Legislature in Section 373.427(2)(c). The

doctrine of equitable tolling is not intended to prejudice

innocent parties who are not state agencies and do not mislead

or lull their adversaries into noncompliance with a time limit.

63. Many of the cases cited in this Recomm ended Order

involve rule challenges conducted pursuant to Section 120.56

rather than Section 120.57(1). The rule challenge cases

nevertheless provide relevant standards for deciding this case.

64. No agency, including DEP and DOAH, should formulate

proposed agency action or interpret agency rules in a manner

that modifies, enlarges, or contravenes the underlying statutory

authority. Section 120.52(8). A determination of the statutory

authority for proposed agency action and related rules is

essential to fairness in an administrative proceeding even

though a particular proceeding may not involve a rule-challenge

and there may be no jurisdiction to invalidate a particular

rule. Proposed agency action and related rules should be

enforced in a manner that preserves the statutory validity of

each in much the same manner that an ALJ without jurisdiction to

determine the constitutionality of a statute must construe the

statute, whenever possible, in a manner that preserves the

constitutional validity of the statute. Sections 120.52(8),

120.56, and 120.57(1)(e). See , e.g. , Myers v. Hawkins , 362 So.

2d 926, 930 (Fla. 1978) ; State v. McDonald , 357 So. 2d 405, 407

(Fla. 1978) ; Novo v. Scott , 438 So. 2d 477, 478 (Fla. 3d DCA

1983)(doubts concerning legislative intent for a statute should

be resolved in favor of its constitutionality).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that DEP enter a final order dismissing the

Petition for noncompliance with the 14-day time limit in Section

373.427(2)(c) and for noncompliance with the requirement for a

timely petition in Section 120.569(2)(c).

DONE AND ENTERED this 4th day of April, 2001, in

Tallahassee, Leon County, Florida.

______________________________ _____

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-3060

(850) 488- 9675 SUNCOM 298-9675

Fax filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April, 2001.

COPIES FURNISHED :

M. B. Adelson, IV, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Robert Goodwin, Esquire

Save the Manatee Club, Inc.

500 North Maitland Avenue, Suite 210

Maitland, Florida 32751

Scott M. Price, Esquire

J.A. Jurgens , P.A.

505 Wekiva Springs Road, Suite 500

Longwood, Florida 32779

William E. "Ted" Guy, Esquire

John S. Yudin, Esquire

Guy and Yudin , P.A.

55 East Ocean Boulevard

Stuart, Florida 34995-3386

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy C. Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

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 must be filed with the agency that

will issue the final order in this cause.