01-003109 Save The Manatee Club, Inc., vs. South Florida Water Management District And Hidden Harbor Land Development Status: Closed Recommended Order on Thursday, December 6, 2001.

Summary: Petitioner missed deadline to file. Equitable tolling did not apply because it was not reasonable for Petitioner to be misled or lulled by rules or anything else, petition was three weeks late, and applicant was prejudiced.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAVE THE MANATEE CLUB, INC., )

)

Petitioner, )

)

vs. ) Case No. 01 - 3109

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT and HIDDEN HARBOR LAND )

DEVELOPMENT, )

)

Respondents. )

__________________________________)

RECO MMENDED ORDER

On October 25, 2001, a preliminary administrative hearing

on jurisdiction was held in this case in Fort Myers, Florida,

before J. Lawrence Johnston, Administrative Law Judge,

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Martha M. Collins, Esquire

233 3rd Street North, Suite 100

St. Petersburg, Florida 33701

For Respondent District:

Keith W. Rizzardi, Esquire

Sout h Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3089

For Respondent Hidden Harbor:

Cindy L. Bartin, Esquire

Post Office Box 861118

St. Augustine, Florida 32086

STATEMENT OF THE ISSUES

The preliminary issue in this case is whether the South

Florida Water Management District (District) has jurisdiction

over the Petition for Formal Administrative Hearin g (Petition)

filed by the Save the Manatee Club (Club) -- i.e. , whether the

Petition was timely or, if not, if the District has

jurisdiction under principles of equitable tolling or

excusable neglect.

PRELIMINARY STATEMENT

On July 17, 2001, the Club filed the Petition to

challenge the District's issuance of a permit to Hidden Harbor

Land Development (Applicant or Hidden Harbor) to construct and

operate a surface water management system to serve a proposed

residential development in Lee County, Florida (Appl ication

No. 991011 - 13). The District referred the Petition to DOAH on

August 8, 2001, and an Initial Order was entered.

On August 31, 2001, Hidden Harbor filed a Motion to

Dismiss the Petition as untimely. The Club filed a response

in opposition, and t he parties filed responses to the Initial

Order, which included a request for a pre - hearing

teleconference. A pre - hearing scheduling teleconference was

held on September 14, 2001. Based on the matters discussed,

final hearing was bifurcated, with a preli minary hearing on

jurisdiction set for October 25, 2001, and final hearing on

the merits (if necessary) set for January 15 - 18, 2001, both in

Fort Myers, Florida. A Joint Pre - Hearing Stipulation for the

preliminary hearing was filed on October 23, 2001.

At the preliminary hearing, Hidden Harbor made a prima

facie case through the Joint Pre - Hearing Stipulation and

stipulated Exhibits A, B, D, E, and F, all of which were

admitted in evidence. The Club then called Laura Combs, its

Southwest Florida Regional Coordinator. During cross -

examination by the District, paragraphs 12 and 13 of Exhibit

H, a Sworn Affidavit of Laura Combs, also were admitted in

evidence; the Club's objections to the balance of Exhibit H

were sustained. Hidden Harbor called its Presid ent, Gerard

Gadigian. The District presented no additional evidence.

After presentation of evidence, Hidden Harbor requested a

transcript of the preliminary hearing, and the parties were

given ten days from the filing of the transcript in which to

file proposed orders. Also, Hidden Harbor's agreed motion ore

tenus to continue final hearing on the merits (and abate

discovery) pending the ruling on jurisdiction was granted.

The Transcript was filed on November 8, 2001. All

parties filed proposed recomm ended orders, which have been

considered.

FINDINGS OF FACT

1. O n October 11, 1999, Hidden Harbor filed with the

District an application for an Environmental Resource Permit

(ERP) to construct and operate a surface water management

system serving a pro posed residential development in Lee

County, Florida.

2. In January 2001, the Club sent an email to the

Florida Wildlife Conservation Commission (FWCC) stating that

it was concerned about Hidden Harbor's Application No. 991011 -

13, as it might impact an area the Club would like to see as a

manatee sanctuary, and was requesting copies of all FWCC

documents relating to the permit. FWCC forwarded a copy of

this email to the District on January 19, 2001. At the time,

the Club's internet website gave the add ress of its main

office in Maitland, Florida, as the Club's official mailing

address.

3. On April 9, 2001, the Club opened a Southwest Florida

regional satellite office in Estero, Florida, and installed

Laura Combs as Regional Coordinator in charge of t hat office.

Responsibility for monitoring the Hidden Harbor application

was delegated to Combs and the satellite office. Nonetheless,

the Club's website continued to give the address of its main

office in Maitland, Florida, as the Club's official mailing

address.

4. Combs's prior work experience with the Club was as

assistant director of governmental relations in Tallahassee,

Florida. In that position, she tracked legislation and

actions of the Governor and Cabinet that were of interest to

the Club. She had no role in the filing of petitions for

administrative hearings on actions of governmental agencies.

Combs's education included a bachelor's degree in English and

a master's degree in urban and regional planning. She did not

have specific legal e ducation in the filing of petitions for

administrative hearings on actions of state governmental

agencies.

5. On May 30, 2001, the District mailed to the Club at

its Maitland office address a letter enclosing the "District's

staff report covering the [H idden Harbor] permit application

[No. 991011 - 13]" and notifying the Club that the

"recommendations as stated in the staff report [to grant the

attached draft permit] will be presented to our Governing

Board for consideration on June 14, 2001." The Club al so was

advised:

Should you wish to object to the staff

recommendation or file a petition, please

provide written objections, petitions

and/or waivers (refer to the attached

"Notice of Rights") to [the District's

deputy clerk]. The "Notice of Rights"

add resses the procedures to be followed if

you desire a public hearing or other review

of the proposed agency action. You are

advised, however, to be prepared to defend

your position regarding the permit

application when it is considered by the

Governing Boa rd for final agency action,

even if you agree with the staff

recommendation, as the Governing Board may

take final agency action which differs

materially from the proposed agency action.

6. The Notice of Rights stated that it was intended to

conform to t he requirement of Section 120.569(1), Florida

Statutes, to "inform the recipient of any administrative

hearing or judicial review that is available under this

section [120.569(1)], s. 120.57 or s. 120.68." It cautioned:

Please note that this Notice of R ights is

not intended to provide legal advice. Not

all the legal proceedings detailed below

may be an applicable or appropriate remedy.

You may wish to consult an attorney

regarding your legal rights.

7. The Notice of Rights included a section entitled

"Petition for Administrative Proceedings," which stated in

pertinent part:

1. A person whose substantial

interests are affected by the South Florida

Water Management District's (SFWMD) action

has the right to request an administrative

hearing on that ac tion. The affected

person may request either a formal or an

informal hearing, as set forth below. A

point of entry into administrative

proceedings is governed by Rules 28 - 106.111

and 40E - 1.511, Fla. Admin. Code, (also

published as an exception to the Uni form

Rules of Procedure as Rule 40E - 0.109), as

set forth below . . ..

a. Formal Administrative Hearing: If

a genuine issue(s) of material fact is in

dispute, the affected person seeking a

formal hearing on a SFWMD decision which

does or may determi ne their substantial

interests shall file a petition for hearing

pursuant to Sections 120.569 and 120.57(1),

Fla. Stat. or for mediation pursuant to

Section 120.573, Fla. Stat. within 21 days

. . . of either written notice through mail

or posting or public ation of notice that

the SFWMD has or intends to take final

agency action.

Pertinent to this case, the Notice of Rights included a

verbatim reproduction of Florida Administrative Code Rule 28 -

106.201, addressing required contents of a petition to

initiat e proceedings involving disputed issues of material

fact. Rules 28 - 106.111, 40E - 1.5111, and 40E - 0.109 were not

reproduced in the Notice of Rights.

8. It is not clear from the evidence when the letter

dated May 30, 2001, with attachments (the Notice

Cor respondence), was received in the Club's Maitland office.

It was not date - stamped, as time - sensitive correspondence

normally would be. Apparently, it was decided to forward the

Notice Correspondence to the new satellite office in Estero

for handling. Co mbs received the forwarded Notice

Correspondence in early June 2001. This was the "first time

[Combs] had been through this type of process."

9. Combs reviewed the Notice Correspondence, eventually

focusing on paragraph 1.a. of the "Petition for Admini strative

Proceedings" section of the Notice of Rights. She did not

read any of the cited statutes and rules except for the rules

reproduced verbatim as part of the Notice of Rights.

10. Combs made conflicting statements regarding her

understanding of the District's administrative process.

However, it appears that she understood that the Club could

file a petition within 21 days of receipt of the Notice

Correspondence, or within 21 days of the "final" action of the

District's Governing Board. She tes tified that, because the

Notice Correspondence did not bear a date - stamp, it was

unclear when the first 21 - day time period began or ended; as a

result, she decided to wait until the District's Governing

Board took "final" action and file a petition within the

second 21 - day time period.

11. Combs appeared at the meeting of the District's

Governing Board on June 14, 2001, and spoke in opposition to

issuance of the draft permit. Notwithstanding the Club's

opposition, the Governing Board decided to issue th e draft

permit.

12. Combs does not have authority to file petitions for

administrative hearings on District actions. She consulted

with her supervisor, Patricia Thompson, and they made a

recommendation to the Club's governing board, which has

ultimate authority to file petitions.

13. Prior to Combs's involvement in the Hidden Harbor

application, the Club had staff legal counsel, who could be

consulted with respect to the filing of petitions and would

advise the Club's governing board. However, the C lub did not

have staff legal counsel at the time of Combs's involvement

and through the time of filing of this petition. (The Club

now again has staff legal counsel.) Neither Combs nor

Thompson saw any need to consult an attorney.

14. It is not clear when the recommendation of Combs and

Thompson was presented to the Club's governing board or when

the Club's governing board made its decision to file the

Petition. Neither Thompson nor any member of the Club's

governing board (nor anyone else who may have participated in

the decision to file the Petition) testified.

15. Several (according to Combs, approximately 12) times

after the District's Governing Board's meeting on June 14,

2001, Combs telephoned the District's offices to obtain a copy

of the Dist rict's Governing Board's "final" action when it was

reduced to writing. It is not clear from the evidence why

several telephone calls were required. Eventually, on

June 26, 2001, Combs received a copy of the permit issued to

Hidden Harbor; there was no N otice of Rights attached.

16. On July 17, 2001, the Club filed its Petition

challenging the permit issued to Hidden Harbor. In the

meantime, Hidden Harbor had obtained a final development order

from Lee County in reliance on the Club's failure to petit ion

for an administrative hearing.

17. The Club is not a newcomer to Florida's

administrative process. It can be officially recognized that

the Club has participated in numerous proceedings before DOAH.

At least one of those cases involved issues simil ar to those

presented for determination in this case. See Conclusion of

Law 32, infra .

CONCLUSIONS OF LAW

A. Clear Point of Entry and Deadline to File Petition

18. A clear point of entry is described as the time

during which an agency action may be ch allenged. The "clear

point of entry" concept was articulated by the First District

in Capeletti Bros. v. Department of Transportation , 362 So. 2d

346, 348 (Fla. 1st DCA 1978), in which the court held that:

an agency's rules must clearly signal when

the ag ency's free - form decisional process

is completed or at a point when it is

appropriate for an affected party to

request formal proceedings . . .. In other

words, an agency must grant affected

parties a clear point of entry, within a

specified time after so me recognizable

intended agency action to formal or

informal administrative proceedings.

Notice of agency action that fails to inform a party of its

right to seek administrative review and the relevant time

limits is inadequate to trigger commencement of the

administrative process. See Florida League of Cities, Inc. v.

Administration Commission , 586 So. 2d 397 (Fla. 1st DCA 1991);

Henry v. Department of Administration , 431 So. 2d 677 (Fla.

1st DCA 1983); Wahlquist v. School Board of Liberty County ,

423 So . 2d 471 (Fla. 1st DCA 1982). The concept of a "clear

point of entry" was further defined in Latin Express Service,

Inc. v. Department of Revenue , 660 So. 2d 1059 (Fla. 1st DCA

1995). The Latin Express court mandated that Florida state

agencies inform a n affected person of the full range of

administrative and judicial remedies available under the law,

as well as the time limits which apply.

19. Consistent with these cases, Section 120.569(1),

Florida Statutes, provides that: parties shall be notified of

any order, including a final order; each notice shall inform

the recipient of any administrative hearing or judicial review

that is available under Sections 120.569, 120.57, or 120.68,

Florida Statutes; the notice shall indicate the procedure

which must be followed to obtain the hearing or judicial

review; and the notice shall state the time limits that apply.

20. Florida Administrative Code Rule 28 - 106.111 (the

Uniform Rules of Procedure) states in pertinent part:

(1) The notice of agency decision shall

contain the information required by Section

120.569(1), F.S. . . ..

* * *

(4) Any person who receives written notice

of an agency decision and who fails to file

a written request for hearing or mediation

within 21 days waives the right to r equest

a hearing or mediation on such matters.

21. The District also has two nearly identical rules

addressing points of entry into agency actions: Rule 40E -

0.109, published as an exception to the Uniform Rules of

Procedure, states:

Point of Entry Int o Proceedings and

Mediation. Point of entry into proceedings

determining substantial interests are

governed by Rule 28 - 106.111, F.A.C., and

this section.

(1) (a) "Receipt of written notice of

agency decision" as set forth in Rule 28 -

106.111, F.A.C., mean s receipt of either

written notice through mail or posting that

the District has or intends to take final

agency action, or publication of notice

that the District has or intends to take

final agency action.

(b) If notice is published pursuant to

this cha pter, publication shall constitute

constructive notice to all persons. Until

notice is published, the point of entry to

request a formal or informal administrative

proceeding shall remain open unless actual

notice is received.

(2) If the Board takes acti on which

substantially differs from the notice of

intended agency decision, the applicant or

persons who may be substantially affected

shall have an additional point of entry

pursuant to Section 28 - 106.111, F.A.C.,

unless otherwise provided by law. The

Bo ard action is considered to substantially

differ from the notice of intended agency

decision when the potential impact on water

resources has changed.

(3) Notwithstanding Rule 28 - 106.111,

intended agency decisions or agency

decisions regarding consolidate d

applications for Environmental Resource

Permits and Use of Sovereign Submerged

Lands pursuant to Section 373.427, F.S.,

shall provide a 14 day point of entry to

file petitions for administrative hearing

under Rule 28 - 106.111, F.A.C.

Rule 40E - 1.511 state s:

Procedures regarding point of entry into

proceedings determining substantial

interests and mediation are set forth in

the Uniform Rules of Procedure Section 28 -

106.111, F.A.C. The following exceptions

are applied in combination with the

applicable Un iform Rules of Procedure.

(1) (a) "Receipt of written notice of

agency decision" as set forth in Rule 28 -

106.111, F.A.C., means receipt of either

written notice through mail or posting that

the District has or intends to take final

agency action, or publi cation of notice

that the District has or intends to take

final agency action.

(b) If notice is published pursuant to

this chapter, publication shall constitute

constructive notice to all persons. Until

notice is published, the point of entry to

request a formal or informal administrative

proceeding shall remain open unless actual

notice is received.

(2) If the Board takes action which

substantially differs from the notice of

intended agency decision, the applicant or

persons who may be substantially aff ected

shall have an additional point of entry

pursuant to Section 28 - 106.111, F.A.C.,

unless otherwise provided by law. The

Board action is considered to substantially

differ from the notice of intended agency

decision when the potential impact on water

r esources has changed.

(3) Notwithstanding the timeline in Rule

28 - 106.111, F.A.C., intended agency

decisions or agency decisions regarding

consolidated applications for Environmental

Resource Permits and Use of Sovereign

Submerged Lands pursuant to Sectio n

373.427, F.S. shall provide a 14 day point

of entry to file petitions for

administrative hearing.

22. The Club contends that the District's rules provide

for two points of entry: the first being notice of the

agency's intended action; and the secon d being notice of final

agency action. The Club concedes that the Notice

Correspondence was clear as to the District's intention to

issue the draft permit to Hidden Harbor. The Club contends

that a second clear point of entry was required to give notice

of the District's final agency action. The Club contends that

no such second clear point of entry was given prior to filing

of the Club's Petition because no Notice of Rights accompanied

the permit received by Combs on June 26, 2001; in the

alternative, t he Club argues that the Petition was filed

within 21 days of June 26, 2001.

23. It is concluded that the District was not required

to provide a second clear point of entry. The one given

through the Notice Correspondence mailed to the Club on

May 30, 2 001, and received in early June 2001, was sufficient.

First, Rules 40E - 0.109(1)(a) and 40E - 1.511(1)(a) are written

in the disjunctive. Second, a requirement for two clear

points of entry through use of the conjunctive in those rules

would not make sense; if two clear points of entry were

required, only the second would be necessary. Third, Rules

40E - 0.109(2) and 40E - 1.511(2) state that "an additional point

of entry" only is required if the District's Governing Board

"takes action which substantially diff ers from the notice of

intended agency decision." Fourth, Florida Administrative

Code Rules 40E - 0.105 and 40E - 1.6065 state that notice of final

agency action only is required when the District's Governing

Board takes final agency action which materially d iffers from

the intended agency decision. In this case, the District's

Governing Board approved and issued the draft permit without

any changes.

B. Equitable Tolling

24. T he time for filing petitions for administrative

proceedings is "not jurisdiction al in the sense that failure

to comply is an absolute bar to appeal but is more analogous

to statute[s] of limitations which are subject to equitable

considerations such as tolling." Machules v. Dept. of Admin. ,

523 So. 2d 1132, 1133, n. 2 (Fla. 1988). S ee also Abusalameh

v. Dept. of Bus. Reg. , 627 So. 2d 560 (Fla. 4th DCA 1993);

Castillo v. Dept. of Admin., Div. of Retirement , 593 So. 2d

1116 (Fla. 2nd DCA 1992); Stewart v. Dept. of Corrections , 561

So. 2d 15 (Fla. 4th DCA 1990); General Motors Corp., et c., v.

Gus Machado Buick - GMC, Inc., et al. , 581 So. 2d 637 (Fla. 1st

DCA 1991); Robinson v. Fla. Unemployment Appeals Comm'n , 526

So. 2d 198 (Fla. 4th DCA 1988); Rothblatt v. Dept. of Health,

etc. , 520 So. 2d 644 (Fla. 4th DCA 1988). The Club next

argues that, even if late, its Petition should be accepted so

as to invoke jurisdiction under the doctrine of equitable

tolling.

25. As explained in Machules :

The tolling doctrine is used in the

interests of justice to accommodate both a

defendant's right not to be called upon to

defend a stale claim and a plaintiff's

right to assert a meritorious claim when

equitable circumstances have prevented a

timely filing. Equitable tolling is a type

of equitable modification which "'focuses

on the plaintiff's excusable ignorance of

the limitations period and on [the] lack of

prejudice to the defendant.'" Cocke v.

Merrill Lynch & Co. , 817 F. 2d 1559, 1561

(11th Cir. 1987) (quoting Naton v. Bank of

California , 649 F. 2d 691, 696 (9th Cir.

1981)). Contrary to the analysi s of the

majority below, equitable tolling, unlike

estoppel, does not require active deception

or employer misconduct, but focuses rather

on the employee with a reasonably prudent

regard for his rights.

In that case, instead of timely filing a petition f or an

administrative proceeding, Machules timely pursued a grievance

appeal. As the Court noted, it was "not a case of mere

inaction in the face of petitioner's mistake." Id. at 1134.

In addition, the state agency that employed Machules

"countenanced an d acquiesced in the error by participating in

the grievance process until after the appeal period had run."

Id. The agency scheduled the grievance hearing and

participated in that process. The Court found that the

agency's conduct, while not deceptive o r misconduct,

sufficiently misled Machules so as to excuse his failure to

timely file his petition for an administrative proceeding.

26. In this case, the Club did not contend, and there

was no evidence, that the Club was in some extraordinary way

preven ted from filing a timely petition or that it mistakenly

filed a timely petition in the wrong forum. Instead, the

Club's argument was limited to the ground that the language in

the Notice of Rights misled or lulled the Club into thinking

there would be a s econd clear point of entry. But the Club

failed to prove that either the District or Hidden Harbor took

any action to mislead the Club or to lull the Club into

thinking there would be a second clear point of entry. (The

Club also did not contend, and the re was no evidence, that the

Club was misled or lulled into thinking that the District's

staff report did not constitute notice of intended agency

action -- in any event, a contention that would not have been

able to overcome the clear provisions of Florida

Administrative Code Rules 40E - 0.105 and 40E - 1.6065 to the

contrary. )

27. In the first place, the evidence was that the Club

did not delegate to Combs the task of advising the Club as to

the correct time frames for challenging agency action.

Combs's sup ervisor, Patricia Thompson, also was involved in

the decision, as were the members of the Club's governing

board. None of them testified, and it was not proven that any

of them were misled or lulled by the language in the Notice of

Rights into thinking th ere would be a second clear point of

entry.

28. Secondly, it was not reasonable for Combs to

conclude from the language in the Notice of Rights (and

accompanying correspondence) that there would be a second

clear point of entry. The language was reason ably clear that

notice of intended District action would be the only point of

entry if final agency action of the District's Governing Board

was to adopt its staff's report.

29. Combs admitted that she did not read the rules or

the statutes cited in the Notice of Rights. She assumed

incorrectly that all pertinent statutes and rules were

reproduced verbatim in the Notice of Rights. In addition,

although Combs made numerous calls to the District to obtain a

copy of the permit, there is no evidence that s he made any

attempt to discuss or confirm with anyone at the District her

interpretation of the point of entry language.

30. Combs was aware of her lack of education and

experience in determining deadlines and in the Chapter 120

administrative process i n general. Lacking such education

experience, a reasonably prudent person would not ignore the

waiver language in the Notice of Rights, would not fail to

read the statutes and the rules cited in the Notice of Rights,

and would not fail to solicit the advi ce of others having the

pertinent education or experience. For these reasons, Combs's

actions were not those of a reasonably prudent person.

31. It also was not reasonably prudent for the Club to

rely on Combs to determine the deadlines for filing. As the

Club knew, Combs was hired to direct the Estero office just

two months before receipt of the Notice Correspondence. She

had no prior education or experience in the Chapter 120

administrative process.

32. Meanwhile, the Club itself had ample prior

experience in the Chapter 120 administrative process. Indeed,

in Save the Manatee Club v. Whitley and Dept. of Environmental

Protection , 2001 WL 1190934 (Fla. Dept. Env. Prot.), the Club

unsuccessfully litigated a clear point of entry issue. In

Whitley , the Club's petition was dismissed as untimely where

the Club allowed the agency's 14 - day deadline to file a

petition to pass after an agency attorney incorrectly

confirmed the misunderstanding of counsel for the Club that

the Club had 21 days to file. In light of these experiences,

it would not be reasonable or prudent for the Club to delegate

the determination of deadlines to a new employee without

pertinent education, experience, or training.

33. Under facts similar to those in this case, courts

have r ejected the application of equitable tolling post -

Machules . See Environmental Resource Associates of Florida,

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

1st DCA 1993)(declining to apply equitable tolling, the court

found nothing extraord inary in the applicant's failure to

timely file a petition which was received by the agency four

days late); Vantage Healthcare Corp. v. Agency for Health Care

Administration , 687 So. 2d 306 (Fla. 1st DCA 1997)(the court

found nothing extraordinary in the untimely filing where the

applicant relied on overnight mail carrier to timely deliver

the document, and there were no official misrepresentations

made to the applicant); Jancyn Manufacturing Corp. v.

Department of Health , 742 So. 2d 473 (Fla. 1st DCA 1999 )(the

court refused to toll the time for filing, finding Jancyn was

not unsophisticated concerning the administrative process, and

the court refused to find the withdrawal of Jancyn's attorney

an extraordinary circumstance sufficient to require

application of the equitable tolling doctrine).

34. The equitable tolling defense also has been rejected

in recent administrative decisions. In addition to the

Whitley case cited in Conclusion of Law 32, supra , an

equitable tolling defense was rejected in Rowe v. S ea Ray

Boats, Inc. and Department of Environmental Protection , 1999

WL 33116652 (Fla. Dept. Env. Prot.). In that case, Rowe

received a copy of a notice of intent, public notice, and

draft permit, including Notice of Rights. Rowe incorrectly

concluded tha t the timeframe for filing a petition, as

described in the Notice of Rights, did not begin to run until

the agency published the public notice in the newspaper. As a

result, Rowe failed to file a petition until 32 days after

receipt of the Notice of Right s. Like Combs in this case,

Rowe did not rely on any representations made by the agency or

by the applicant, Sea Ray Boats.

35. It is recognized that the court in Stewart v. Dept.

of Corrections , supra , cited Machules and applied equitable

tolling in a decision citing no factors other than that the

petition was just one day late and that there was no

prejudice. But equitable tolling was subsequently rejected in

Environmental Resource Associates of Florida, Inc. v.

Department of General Services , supra , where the petition was

filed four days late, and there was no prejudice

(notwithstanding Judge Zehmer's dissent that three additional

days late was insufficient to distinguish the case from

Stewart ).

36. Even if equitable tolling is applicable without any

evidence that a petitioner was misled, equitable tolling

should not be applied in this case, where the petition was

approximately three weeks late, and Hidden Harbor obtained a

final development order from Lee County in reliance on the

Club's failure t o petition within the rule deadlines.

C. Excusable Neglect

37. The Club also invokes the doctrine of excusable

neglect. To establish excusable neglect, a petitioner must

prove that an excusable error or negligent act occurred and

resulted in the party 's failure to meet a deadline. In this

case, the Club based its assertion of excusable neglect on

personnel additions, a new office opening, and changes in

interoffice routing and date - stamping procedures.

38. In all of the cases involving excusable ne glect, the

failure to file was directly related to the negligent act.

See , e.g. , Electric Engineering Company, Inc. v. General

Electric Canada, Inc. , 610 So. 2d 51 (Fla. 3rd DCA

1992)(registered agency misdirected a complaint to the

defendant, who had mov ed offices); Trans - World Realty v.

Realty World , 507 So. 2d 1201 (Fla. 4th DCA 1987)(a secretary

failed to follow instructions to have another attorney sign

and file responsive pleading); Rothblatt v. Department of

Health & Rehabilitative Services , 520 So. 2d 644 (Fla. 4th DCA

1988)(excusable neglect found where an attorney failed to file

an administrative hearing due to a secretarial mistake, which

resulted in the secretary's dismissal). In this case, the

Notice Correspondence was clearly dated May 30, 20 01, and was

received by the Club and by Combs in early June 2001. It is

concluded that personnel additions, a new office opening, and

changes in interoffice routing and date - stamping procedures

are not legal excuses for waiting until July 17, 2001, to fil e

the Club's Petition.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the South Florida Water Management

District enter a final order dismissing the Petition.

DONE AND ENTERED this 6th day of December, 2001, in

Tallahassee, Leon County, Florida.

_________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December, 2001.

COPIES FURNISHED:

Cindy L. Bartin, Esquire

Post Offi ce Box 861118

St. Augustine, Florida 32086

Martha M. Collins, Esquire

233 3rd Street North, Suite 100

St. Petersburg, Florida 33701

Keith W. Rizzardi, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406 - 30 89

Frank R. Finch, Executive Director

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e 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.