00-000218 Clarence Rowe vs. Sea Ray Boat Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, April 4, 2000.

Summary: The affected party who filed a petition for hearing 18 days late waives the right to a hearing. The filing requirement is not extended by doctrine of equitable tolling.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARENCE ROWE, )

)

Petitioner, )

)

vs. ) Case No. 00-0218

)

SEA RAY BOATS, INC., and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents, )

)

RECOMMENDED ORDER OF DISMISSAL

An evidentiary hear ing was conducted on March 2, 2000, in

Melbourne, Florida by Daniel Manry, Administrative Law Judge

(" ALJ"), Division of Administrative Hearings ("DOAH").

Petitioner, his witness, a court reporter, and members of the

public attended the hearing in Melbourne, Florida. Respondents,

another court reporter, two witnesses, and the ALJ participated

by videoconference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Clarence Rowe, pro se

418 Pennsylvania Avenue

Rockledge, Florida 32955

For Respondent W. Douglas Beason, Esquire

Department of Office of General Counsel

Environmental Florida Department of Environmental

Protection: Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2600

For Respondent Gary Hunter, Jr., Esquire

Sea Ray Boats, Angela R. Morrison, Esquire

Inc.: Hopping, Green, Sams and Smith, P.A.

Post Office Box 6526

123 South Calhoun Street (32301)

Tallahassee, Florida 32314

STATEMENT OF THE ISSUE

The issue for determination is whether the original and

amended petitions for hearing were filed late and should be

dismissed pursuant to Section 120.569(2)(c), Florida Statutes

(1997), and Florida Administrative Code Rule 62-110.106(3)(b).

(All statutory references are to Florida Statutes (1997) unless

otherwise stated. All references to rules are to those

promulgated in the Florida Administrative Code in effect on the

date of this Recommended Order.)

PRELIMINARY STATEMENT

On May 10, 1999, Respondent, Sea Ray Boats, Inc. ("Sea

Ray"), filed an application for an air construction permit with

Respondent, Department of Environmental Protection (the

"Department"). On October 7, 1999, the Department published its

Intent to Issue Air Construction Permit.

On November 15, 1999, Petitioner filed a letter with the

Department requesting an administrative hearing to contest the

proposed permit (the "original petition"). The Department

dismissed the original petition on December 15, 1999, and gave

Petitioner 15 days to file an amended petition. On January 6,

2000, Petitioner filed an amended petition. The Department

referred the matter to DOAH for assignment of an ALJ to conduct

the administrative hearing.

On January 24, 2000, DOAH issued an Initial Order to the

parties, and Sea Ray filed the Motion to Dismiss that is the

subject of this Recommended Order of Dismissal. The Department

supports the Motion to Dismiss.

The evidentiary hearing was originally scheduled for

February 29, 2000, but was rescheduled for March 2, 2000, with

the consent of the parties. At the hearing, Petitioner

testified, called one witness, and submitted four exhibits for

admission in evidence. Sea Ray called two witnesses and

submitted four exhibits for admission in evidence. The

Department cross-examined Petitioner and his witness, conducted

further direct examination of Sea Ray's two witnesses, and

submitted no exhibits for admission in evidence.

The identity of the witnesses and exhibits, and any

attendant rulings, are set forth in the Transcript of the hearing

filed on March 7, 2000. Sea Ray timely filed its proposed

recommended order ("PRO") on March 15, 2000. The Department did

not file a PRO.

Petitioner requested an extension of time to file his PRO,

which is hereby granted over objection by Sea Ray. Petitioner

timely filed his PRO on March 22, 2000.

FINDINGS OF FACT

1. On May 10, 1999, Sea Ray filed an application for an air

construction permit with the Department. The application seeks a

permit to construct a new fiberglass boat manufacturing facility

in Merritt Island, Brevard County, Florida.

2. On October 7, 1999, the Department issued an Intent to

Issue Air Construction Permit (the "Notice of Intent"). On the

same date, the Department mailed copies of the Notice of Intent,

a Public Notice of Intent to Issue Air Construction Permit (the

"Public Notice"), and a draft permit to interested persons

including Sea Ray.

3. On October 11, 1999, Petitioner telephoned the

Department's Bureau of Air Regulation and requested a copy of

correspondence between Sea Ray and the Department. Petitioner

also requested that the Department place Petitioner on the list

of interested persons.

4. On October 11, 1999, the Department mailed Petitioner,

by certified mail return receipt requested, copies of the Notice

of Intent, the Public Notice, and the draft permit. Petitioner

received the documents from the Department on October 14, 1999,

and executed the return receipt on the same date.

5. Both the Notice of Intent and the Public Notice included

a notice of rights to substantially affected parties. In

relevant part, the notice of rights stated:

A person whose substantial interests are

affected by the proposed permitting . . . may

petition for an administrative proceeding

(hearing) under Sections 120.569 and 120.57

of the Florida Statutes. The petition must

contain the information set forth below and

must be filed (received) in the Office of

General Counsel of the Department at 3900

Commonwealth Boulevard, Mail Station #35,

Tallahassee, Florida, 32399-3000. . . .

Petitions filed by any persons other than

those entitled to written notice under

Section 120.60(3) . . . must be filed within

fourteen days of publication of the public

notice or within fourteen days of receipt of

this notice of intent, whichever occurs

first . . . . The failure of any person to

file a petition within the appropriate time

period shall constitute a waiver of that

person's right to request an administrative

determination (hearing) under Sections

120.569 and 120.57, or to intervene in this

proceeding and participate as a party to it

. . . . (emphasis supplied)

6. Petitioner incorrectly concluded that the 14-day filing

requirement did not begin to run when he received the Notice of

Intent on October 14, 1999, but began to run on a future date

when the Department published the Public Notice in the newspaper.

In reaching that conclusion, Petitioner did not rely on any

representations by any agent or employee of the Department or Sea

Ray. Neither Respondent made any representations to Petitioner.

7. On October 31, 1999, the Department published its P ublic

Notice in The Florida Today . No substantive differences exist

between the Public Notice published on October 31, 1999, and the

Notice of Intent received by Petitioner on October 14, 1999.

8. Petitioner had 14 days from October 14, 1999, or until

October 28, 1999, to file his original petition for hearing.

Petitioner filed his original petition on November 15, 1999. The

original petition was filed 18 days late.

9. On December 15, 1999, the Department dismissed the

original petition on the grounds that the petition failed to

provide the information required in Section 120.569(2)(c) and the

rules incorporated therein. The dismissal was without prejudice

as to the grounds for dismissal as required by Section

120.569(2)(c). The dismissal gave Petitioner 15 days from

December 21, 1999, the date in the certificate of service, to

file an amended petition curing the informational defects in the

original petition.

10. The dismissal gave Petitioner until January 5, 2000, to

file an amended petition for hearing. Petitioner filed the

amended petition one day late on January 6, 2000. Even if the

original petition were deemed timely filed on November 15, 1999,

the 14th day after publication of the Public Notice on

October 31, 1999, the amended petition was not timely filed.

CONCLUSIONS OF LAW

11. Division of Administrative Hearings has jurisdiction

over the parties and the subject matter in this proceeding. The

parties received adequate notice of the evidentiary hearing.

Section 120.57(1).

12. On October 14, 1999, Petitioner received adequate

notice of his right to request an administrative hearing. The

Notice of Intent and Public Notice clearly stated the proposed

agency action, the right to file a petition for hearing, and the

requirement that any petition for hearing must be filed within 14

days of the earlier of: (1) receipt of the Notice of Intent; or

(2) publication of the Public Notice.

13. Petitioner had 14 days from October 14, 1999, or until

October 28, 1999, to file a petition for hearing with the

Department. The notice clearly stated that a petition was not

filed until the Department received it. Use of the term "filed,"

rather than "served," unambiguously advised Petitioner that a

petition for hearing must be received by the Department within

the 14-day time limit. See Environmental Resource Associates of

Florida, Inc. v. Department of General Services , 624 So. 2d 330,

332 (Fla. 1st DCA 1993) (Judge Ervin concurring), reh. denied .

See also Rule 62-110.106(2) (defining receipt of notice from the

agency as the earlier of receipt of written notice or publication

in the newspaper).

14. Petitioner filed the original petition for hearing 18

days late on November 15, 1999. Section 120.569(2)(c) requires

dismissal of a petition that is not timely filed. In relevant

part, Section 120.569(2)(c) provides:

A petition shall be dismissed if it is not in

substantial 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

. . . . (emphasis supplied)

15. The amended petition did not cure the late-filing

defect in the original petition. Even if the original petition

were deemed timely because it was filed within 14 days of

publication of the Public Notice, the amended petition was filed

late in violation of Section 120.569(2)(c).

Statutory Authority

16. Section 120.569(2)(c) requires the Department to

dismiss an untimely petition for hearing. Agencies, including

the Department and DOAH, cannot enlarge, modify, or contravene

the plain and unambiguous terms of a statute. Sections

120.52(8)(c) and 120.58(7)(3)4.

17. Neither the Department nor DOAH has authority to adopt

an interpretation of Section 120.569(2)(c) that enlarges,

modifies, or contravenes the terms of the statute. See , e.g.

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, 362 (Fla. 1st DCA 1984) (agency action that ignores

some statutory criteria and emphasizes others is arbitrary and

capricious). Nor can administrative convenience or expediency

dictate the terms of a statute. Cleveland Clinic Florida

Hospital v. Agency for Health Care Administration , 679 So. 2d

1237, 1241 (Fla. 1st DCA 1996) reh. denied ; Buffa v. Singletary ,

652 So. 2d 885, 886 (Fla. 1st DCA 1995) reh. denied ; Flamingo

Lake RV Resort, Inc. v. Department of Transportation , 599 So. 2d

732, 732 (Fla. 1st DCA 1992).

18. Rule 62-110.106(3)(b) provides that the failure to

timely file a petition for hearing waives any right to request a

hearing. Neither the Department nor DOAH can 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).

19. Neither the Department nor DOAH can construe Rule 62-

110.106(3)(b) to enlarge, modify, or contravene the requirement

for dismissal in Section 120.569(2)(c). A rule cannot impose a

requirement not found in a statute or otherwise enlarge, modify,

or contravene the terms of a statute. See , e.g. , DeMario , 648

So. 2d at 213-214 (agency lacked authority to impose time

requirement not found in statute); 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, 685 (Fla.

3d DCA 1998); Johnson v. Department of Highway Safety & Motore

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. denied ; Florida Department of

Revenue v. A. Duda & Sons, Inc. , 608 So. 2d 881, 884 (Fla. 5th

DCA 1992), reh. 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.

20. The Department has previously construed applicable

statutes and rules to require dismissal of untimely petitions for

hearing. See e.g. Dunn v. Phelps , 19 FALR 2595 (Department of

Environmental Protection 1997)(filing requires receipt rather

than mailing); Gardner v. The Psalms 2100 Ocean Boulevard, Ltd. ,

19 FALR 2712 (Department of Environmental Protection

1997)(dismissing petition for hearing as untimely when filed

beyond 14 days of publication but within 14 days of receipt of

written notice); Pettit v. Department of Environmental

Protection , ER FALR 97:037 (Department of Environmental

Protection 1996)(dismissing as untimely petition for hearing that

was five days late). Administrative stare decisis requires the

Department to follow its earlier decisions that involve similar

facts and law. Gessler v. Department of Business and

Professional Regulation , 627 So. 2d 501, 504 (Fla. 4th DCA 1993),

reh. denied , dismissed , 634 So. 2d 624 (Fla. 1994). Compare

Nordheim v. Department of Environmental Protection , 719 So. 2d

1212, 1214 (Fla. 3d DCA 1998) (agency refusal to consider its

prior decision is abuse of discretion) with Caserta v. Department

of Business and Professional Regulation , 686 So. 2d 651, 653

(Fla. 5th DCA 1996) (Section 120.53 requirement for subject

matter index begins on effective date of 1992 amendment).

Clear Point of Entry

21. The clear point of entry d octrine is a judicial

doctrine that requires state agencies to provide affected parties

with a clear point of entry to proceedings authorized in Sections

120.569 and 120.57. A state agency provides an affected party

with a clear point of entry by satisfying several fundamental

requirements. First, the agency must notify the affected party

of the proposed agency action. Second, the notice must inform

the affected party of the right to petition for an administrative

hearing pursuant to Sections 120.569 and 120.57. Third, the

notice must inform the affected party of the time limits within

which the party must file a petition for hearing. Section

120.569(1). If the agency's notice satisfies the requirements of

a clear point of entry and the affected party fails to file a

petition for hearing within the time prescribed in the clear

point of entry, the affected party waives his or her right to a

hearing, and the petition must be dismissed. See e.g.

Environmental Resource , 624 So. 2d at 331-332.

22. The cle ar 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, Florida courts

have consistently applied the doctrine. See e.g. Environmental

Resource , 624 So. 2d at 331-332 (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).

23. The clear point of entry doctrine requires a state

agency to provide adequate notice of proposed agency action

regardless of the party-status of the agency. Courts have

applied the clear point of entry doctrine to cases in which the

state agency is a party litigant. See e.g. Florida League of

Cities , 586 So. 2d at 413(agency attempting to impose sanctions,

including the withholding of state funds, to the affected party);

Lamar Advertising , 523 So. 2d at 712 (agency denied of sign

permit); Henry , 431 So. 2d at 680 (agency denied retirement

benefits); Sterman v. Florida State University Board of Regents ,

414 So. 2d 1102 (Fla. 1st DCA 1982) (agency denied degree to a

student).

24. Courts have also applied the clear point of entry

doctrine to cases in which the state agency is a nominal party

rather than a real party in interest. Capital Copy , 526 So. 2d

at 988 (agency reviewing bids); City of St. Cloud , 490 So. 2d at

1358 (agency reviewing application for approval of wastewater

system); Manasota 88, Inc. v. Department of Environmental

Regulation , 417 So. 2d 846 (Fla. 1st DCA 1982) (agency reviewing

revised operating permit for a crude oil splitter).

25. When an agency is a nominal party in a case involving

two private party litigants, courts have applied the clear point

of entry doctrine strictly. In a certificate of need case, for

example, one court held that failure of the state agency to

provide notice to competing hospitals disclosing the submission

of a revised application by the original applicant denied

competing hospitals of a clear point of entry. NME Hospitals,

Inc. v. Department of Health and Rehabilitative Services , 492

So. 2d 379, 384-385 (Fla. 1st DCA 1986) (opinion on Motion for

rehearing), reh. denied . In another certificate of need case,

the court refused to extend the time limits for filing a letter

of intent. Vantage Healthcare Corporation v. Agency for Health

Care Administration , 687 So. 2d 306, 307 (Fla. 1st DCA 1997)

(letters of intent filed one day late in certificate of need

process are untimely and cannot be extended by equitable

tolling).

26. At least one case has applied the clear point of entry

doctrine where the state agency was neither a party litigant nor

a nominal party. In a proceeding between a fruit dealer and a

grower, the court held that the failure of the dealer to request

a hearing within the time limit prescribed in a statutorily

required agency notice waived the dealer's right to a de novo

hearing. Southeast Grove Management, Inc. v. McKiness , 578 So.

2d 883, 886 (Fla. 1st DCA 1991).

27. The evidence in this case shows that the Department

provided Petitioner with a clear point of entry on October 14,

1999. The written notice received by Petitioner provided

adequate notice of the proposed agency action, the right to

request a hearing, and the 14-day filing requirement for

requesting a hearing.

Jurisdiction

28. No statutes, rules, or cases expressly state whether

Petitioner's failure to comply with the filing requirement in a

clear point of entry, such as that provided to Petitioner in the

Notice of Intent, is a jurisdictional prerequisite to

Petitioner's right to a hearing or a waiver by Petitioner that is

subject to equitable tolling under certain circumstances. Rule

62-110.106(3)(b) states that an affected party who fails to

timely file a petition for hearing waives his right to request a

hearing.

29. The conclusion that failure to comply with the filing

requirements prescribed in an agency's clear point of entry

results in a waiver rather than a jurisdictional bar is

consistent with analogous cases in other areas of the law that

have addressed the failure to comply with statutory filing

requirements. Florida courts have generally held that the

failure to comply with a statutory filing requirement is not

jurisdictional but admits a defense analogous to a statute of

limitations. Joshua v. City of Gainesville , 734 So. 2d 1068,

1069-1071 (Fla. 1st DCA 1999) (question certified to the Florida

Supreme Court) rev. granted 735 So. 2d 1285 (Fla. 1999); Adams v.

Wellington Regional Medical Center, Inc. , 727 So. 2d 1139 (Fla.

4th DCA 1999) (question certified to the Florida Supreme Court);

Daugherty v. City of Kissimmee , 722 So. 2d 288 (Fla. 5th DCA

1998); Crumbie v. Leon County School Board , 721 So. 2d 1211 (Fla.

1st DCA 1998); Kalkai v. Emergency One , 717 So. 2d 626 (Fla. 5th

DCA 1998); Milano v. Moldmaster, Inc. , 703 So. 2d 1093, 1094-1095

(Fla. 4th DCA 1998). See also Sasser M. and Stafford S.,

"Defining the Hourglass: When Is a Claim Under the Florida Civil

Rights Act Time Barred?", 73 Fla. B.J. 68 (Dec. 1999).

30. Florida courts that have held statutory filing

requirements to be jurisdictional have generally done so based on

specific statutory language. Relying on language in Section

194.171(6), for example, the Florida Supreme Court has 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)).

31. Federal courts generally view statutory filing

requirements in discrimination cases as statutes of limitations

rather than as jurisdictional prerequisites to filing suit. For

example, 42 U.S.C. Section 2000e-5(f)(1) requires an aggrieved

party to file suit within 90 days after receipt of a right to sue

letter from the Equal Employment Opportunity Commission (" EEOC").

In Espinoza v. Missouri Pacific Railroad Co. , 754 F.2d 1247, 1250

(5th Cir. 1985), 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.

32. The Supreme Court has adopted a similar construction of

the requirement in 42 U.S.C. Section 2000e-16(c) for an aggrieved

party to file suit within 30 days after receipt of a right to sue

letter from the EEOC. In Irwin v. Department of Veterans

Affairs , 498 U.S. 89, 92, 111 S. Ct. 453, 455 (1990), the Court

resolved a conflict between federal appellate courts over whether

a late-filed claim deprived federal courts of jurisdiction. The

Fifth Circuit Court of Appeals had held that federal courts

lacked jurisdiction over claims filed more than 30 days after

receipt of a right to sue letter. Irwin v. Department of

Veterans Affairs , 874 F.2d 1092 (5th Cir 1989). The holding by

the Fifth Circuit was in direct conflict with decisions in four

other Courts of Appeals. Boddy v. Dean , 821 F.2d 346, 350 (6th

Cir. 1987); Martinez v. Orr , 738 F.2d 1107, 1109 (10th Cir.

1984); Milam v. United States Postal Service , 674 F.2d 860, 862

(11th Cir. 1982); Saltz v. Lehman , 672 F.2d 207, 209 (D.C. Cir.

1982). The Supreme Court held that the 30-day filing requirement

is not jurisdictional but creates a " rebuttable presumption of

equitable tolling." Irwin , 498 U.S. at 95-96, 111 S. Ct. at 457.

Equitable Tolling

33. Florida courts have applied the doctrine o f equitable

tolling to excuse an otherwise untimely initiation of an

administrative proceeding when four requirements are satisfied.

First, the filing requirement is not jurisdictional. Cf .

Environmental Resource , 624 So. 2d at 332-333 (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, the delay is a minor infraction of the

filing requirement. 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, the delay

does not result in prejudice to the other party. Stewart , 561

So. 2d at 16. Fourth, the delay is caused by the affected party

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).

34. The first requirement for equitable tolling is

satisfied in this case. The 14-day filing requirement in the

notice of rights received by Petitioner on October 14, 1999, is

not a jurisdictional prerequisite to Petitioner's claim. Irwin ,

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

1095.

35. The second requ irement for equitable tolling is not

satisfied in this case. The 18-day delay caused by Petitioner's

failure to timely file a request for hearing was not a minor

infraction. See e.g. Vantage Healthcare , 687 So. 2d at 307

(refusing to allow filing of letters of intent one day late in

certificate of need process); 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).

36. The third requirement of the doctrin e of equitable

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

Petitioner would prejudice the interests of a private party by

requiring Sea Ray to incur the expense and delay caused by

disregard of the mandatory dismissal language in Section

120.569(2)(c) and the mandatory waiver language in Rule 62-

110.106(3)(b).

37. Petitioner submitted no evidence that the fourth

requirement of the doctrine of equitable tolling was satisfied in

this case. Petitioner failed to show that the delay in filing

his original and amended petitions was the result of being misled

or lulled into inaction, of being prevented in some extraordinary

way from asserting his rights, or of having timely asserted his

rights mistakenly in the wrong forum. See e.g. Perdue v. TJ Palm

Associates, Ltd. , 24 Fla. L. Weekly D1399 (Fla. 4th DCA June 16,

1999) (refusing to remand a denial of a request for hearing where

the recommended order contained findings of fact and conclusions

of law supporting the denial of an untimely request for hearing).

38. The evidence shows that Petitioner relied on his own

belief that the 14-day filing requirement did not begin to run

until publication of the Public Notice. Although Petitioner is

experienced in administrative proceedings authorized by Sections

120.569 and 120.57, Petitioner has repeatedly asked throughout

this proceeding that his inaction be excused, in part, because he

is not an attorney. The lack of legal representation does not

excuse inaction that results in an untimely petition for hearing.

Jancyn Manufacturing Corporation v. Florida Department of Health ,

24 Fla. L. Weekly D2232, 2233 (Fla. 1st DCA 1999).

39. Petitioner is not subject to a lesser standard of

conduct, as distinguished from legal competence, than a licensed

attorney. A contrary rule would insulate a party from applicable

time limits by choosing lay representation. Cf. Burke v. Harbor

Estate Associates, Inc. , 591 So. 2d 1034, 1037-1038 (Fla. 1st DCA

1991) (a party cannot avoid fees and costs in frivolous actions

by choosing lay representation). Accord Dolphins Plus v.

Residents of Key Largo Ocean Shores , 598 So. 2d 324 (Fla. 3d DCA

1992).

40. Petitioner failed to show that he was lulled into

inaction by a party to this proceeding. The doctrine of

equitable tolling generally has been limited to cases in which

one party has been lulled into inaction or prevented from

asserting his or her rights by the acts or omissions of the

party's adversary. In Irwin , for example, the Court held that

the doctrine of equitable tolling applied to an action brought by

a discharged government employee against the government. The

Court noted 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.

41. The Florida Supreme Court has not limited the doctrine

of equitable tolling to cases where a party is tricked or induced

by the misconduct of an adversary into allowing a filing deadline

to pass. The Florida court has expanded the doctrine to reach

cases where a party allows a filing deadline to pass through

inadvertence or mistake of law. See e.g. Machules , 523 So. 2d at

1132 (discharged agency employee who chose union grievance

instead of requesting hearing did not waive his right to a

hearing). However, the court's expansion of equitable tolling to

inadvertence and mistake of law in Machules involved a state

agency that was both a named party and an adversary, or party

litigant, to the discharged agency employee. The decision did

not involve a state agency that was a nominal party in a case

such as this in which two or more other parties who are

adversaries and who are the real parties in interest. Machules ,

523 So. 2d at 1132. See e.g. Section 120.569(2)(a) (using the

term "party litigant").

42. Florida appellate decisions have generally been limited

to facts involving state agencies with a party status analogous

to that of the state agency in Machules . These decisions have

generally applied the doctrine of equitable tolling in cases

where the state agency is a party litigant rather than a nominal

party. See e.g. Mathis v. Florida Department of Corrections , 726

So. 2d 389 (Fla. 1st DCA 1999)(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).

43. Florida courts have been reluctant to extend the

doctrine of equitable tolling to administrative proceedings in

which a state agency is only a nominal party rather than a party

litigant. 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 filing deadline 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 , 1999 WL 393464 (Fla. 4th DCA 1999) (refusing, as a

factual matter, to apply the doctrine of equitable tolling to

extend the deadline for challenging a notice of intent to issue a

conceptual permit approving overall master project design).

44. Like the state agency in Vantage Healthcare , the

Department is a nominal party in this proceeding rather than a

party litigant. The Department is proposing approval of an

application and is required by law to construe applicable

statutes and rules, including those pertaining to the timeliness

of the petition for hearing. The equitable tolling doctrine may

not apply to the application process involved in this case.

Vantage Healthcare , 687 So. 2d at 307. Alternatively, the

equitable tolling doctrine may not be apply where a party fails

to file a petition within the time period provided in a clear

point of entry. Environmental Resource , 624 So. 2d 331. See

also Section 120.569(2)(c).

45. Eight years after the decision in Machules , the

legislature enacted the mandatory dismissal language in Section

120.569(2)(c). The 1996 mandatory dismissal language was not

present in the statutes construed by earlier courts that applied

the doctrine of equitable tolling to suspend the filing

requirements prescribed in an agency's clear point of entry. The

enactment of Section 120.569(2)(c) distinguishes this case from

earlier cases on the basis of the controlling statutory language.

Equitable Estoppel

46. The doctrine of equitable tolling is distinguishable

from the doctrine of equitable estoppel. The former doctrine is

concerned with the point at which a limitations period begins to

run and with the circumstances in which the running of the

limitations period may be suspended. Morsani v. Major League

Baseball , 739 So. 2d 610, 614-615 (Fla. 2d DCA 1999). Equitable

estoppel comes into play only after the limitations period has

run and addresses the circumstances in which a party is estopped

from asserting the statute of limitations as a defense to an

admittedly untimely action. Id. See also Ovadia v. Bloom , 2000

WL 227961 (Fla. 3d DCA March 1, 2000).

47. Like equitable tolling, equitable estoppel can be

applied to a state agency. However, most cases involve a state

agency that is a party litigant rather than a nominal party.

Tri-State Systems, Inc. v. Department of Transportation , 500

So. 2d 212, 215 (Fla. 1st DCA 1986).

48. A party must specifically plead equ itable estoppel in

administrative cases. University Community Hospital v.

Department of Health and Rehabilitative Services , 610 So. 2d

1342, 1346 (Fla. 1st DCA 1992). Petitioner did not specifically

plead equitable estoppel in this case.

49. Unlike e quitable tolling, equitable estoppel does not

apply in cases where the delay is caused by a mistake of law.

Council Brothers, Inc. v. City of Tallahassee , 634 So. 2d 264,

266 (Fla. 1st DCA 1994); Dolphin Outdoor Advertising v.

Department of Transportation , 582 So. 2d 709, 710 (Fla. 1st DCA

1991); Tri-State , 500 So. 2d 216. Petitioner's mistaken belief

that the 14-day filing requirement in the notice of rights did

not begin to run until publication of the Public Notice was a

mistake of law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order

dismissing the original and amended petitions as untimely filed.

DONE AND ENTERED this 4th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSo to Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 -3060

(850) 488 -9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April, 2000.

COPIES FURNISHED:

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Clarence Rowe

418 Pennsylvania Avenue

Rockledge, Florida 32955

Gary Hunter, Jr., Esquire

Angela R. Morrison, Esquire

Hopping, Green, Sams and Smith, P.A.

Post Office Box 6526

123 South Calhoun Street (32301)

Tallahassee, Florida 32314

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the final order in this case.