04-001905 City Of Daytona Beach vs. St. Johns River Water Management District Status: Closed Recommended Order on Wednesday, September 29, 2004.

Summary: Petitioner failed to timely file its petition for hearing and therefore waived its point of entry. Recommend that the petition be dismissed with prejudice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF DAYTONA BEACH, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1905

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was h eard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on August 4,

2004, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Howard K. Heims, Esquire

Littman, Sherlock & He ims, P.A.

Post Office Box 1197

Stuart, Florida 34995

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405 - 1443

For Respondent: Janice M. McLean, Esquire

William H. Congdon, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

ISSU E

The narrow issue is whether the City of Daytona Beach's

(City's) Petition for Administrative Hearing (Petition)

challenging certain special conditions in its water use permit

was timely.

BACKGROUND

This matter began on May 21, 2004, when the City file d its

Petition seeking to modify or delete conditions 2, 3, 6, 10, 12 -

14, 19, and 24 imposed by Respondent, St. Johns River Water

Management District (District), after the District renewed the

City's Consumptive Use Permit 2 - 127 - 0320. The Petition asserte d

that it was being filed in response to proposed agency action

issued by the District on April 29, 2004, and received by the

City on April 30, 2004.

The matter was forwarded to the Division of Administrative

Hearings (DOAH) on May 28, 2004, with a request that an

administrative law judge conduct a hearing.

On June 9, 2004, the District filed a Motion to Dismiss

(Motion) the Petition on the ground that the proposed agency

action approving the renewal of the permit was actually issued

on January 29, 2004; that notice of such action was received by

the City on January 30, 2004; and that the City waived its point

of entry by not filing its request for a hearing until May 21,

2004. Because the Motion raised matters dependent on facts not

yet proven, the Motio n was denied by Order dated June 25, 2004,

without prejudice to the District renewing its motion at a later

time. On July 1, 2004, a Renewed Motion to Dismiss (Renewed

Motion) was filed by the District raising essentially the same

grounds as in its first Motion.

By Order dated June 29, 2004, an evidentiary hearing was

scheduled on July 27, 2004, in Daytona Beach, Florida, on the

limited issue of whether the Petition was timely filed. At the

request of the City, the matter was rescheduled to August 4,

2004 , at the same location.

At the hearing, the City presented the testimony of Dennis

R. Colby, former City Manager of Water and Wastewater; Stan R.

Lemke, City Public Works Director; Dwight T. Jenkins, District

Director of the Division of Water Use Regulat ion; Gerhardt M.

Witt, a professional hydrogeologist; and James Thurrott, City

Assistant Manager of Water and Streets. Also, it offered City

Exhibits 1 - 12. All were received in evidence except Exhibit 11,

on which a ruling was reserved. That exhibit is hereby received

in evidence. The District presented the testimony of Dwight T.

Jenkins, Director of the Division of Water Use Regulation, and

James Hollingshead, Supervising Regulatory Hydrologist in its

Orlando District Office. Also, it offered District Exhibits 1

and 2, which were received in evidence. Finally, the

undersigned granted the District's Unopposed Motion for Official

Recognition of Sections 120.569 and 120.57, Florida Statutes

(2003); Florida Administrative Code Chapter 28 - 106 and Florida

A dministrative Code Rule 40C - 1.1007; the District's First

Request for Admissions; and the City's Response to the

District's First Request for Admissions. (The latter two items

have also been received in evidence as District Exhibits 1

and 2.)

At the con clusion of the hearing, the parties requested

that no action be taken on the Renewed Motion until the parties

submitted a status report on August 27, 2004, indicating whether

a settlement in the case had been reached. At the request of

the parties, this t ime period was extended to September 17,

2004. On September 23, 2004, a Status Report was filed by the

District indicating that the parties had not reached an

agreement.

A Transcript of the hearing was filed on August 15, 2004.

Proposed Findings of Fact and Conclusions of Law were filed by

the parties on August 24, 2004, and they have been considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of f act are made:

1. Permit Number 2 - 127 - 0320 (Permit) was issued by the

District on December 14, 1992, and was scheduled to expire on

December 14, 1999, seven years later. The Permit authorized the

City to withdraw 5,849 million gallons per year of groundwa ter

from the Floridan aquifer for household, water utility, and

essential uses. On August 28, 1998, the City filed an

application to renew the Permit. In May 2004, the District

approved the application, with certain modifications.

2. To place this phase of the controversy in proper

perspective, a review of the District's application review

process is helpful. After an application for a consumptive

water use permit is filed by an applicant, the District's

Division of Water Use Regulation (Division) under takes a

preliminary review. If further information is needed to resolve

the Division's concerns, the applicant is requested to submit

additional information. A determination is then made as to

whether the additional information provided by the applicant is

deemed to be "sufficient" so as to render the application

complete; if not, the Division staff (staff) often collects

additional information on its own initiative to resolve any

outstanding concerns. Once an application is deemed complete

through respo nses from an applicant, or after additional

information is obtained by the staff, the staff prepares and

issues a document known as a Technical Staff Report (TSR), which

represents the staff recommendation and the District's notice of

intent to grant or de ny the application. In some cases,

however, a draft TSR, which contains the staff's preliminary

recommendation, may be issued before the final TSR is prepared.

3. After the TSR is prepared, the Division notifies the

District's Division of Permit Data Ser vices (Data Services) that

a package of documents (known as the noticing package)

consisting of the TSR, Written Notice of Intended Decision, and

Notice of Rights should be sent to the applicant and other

interested parties. This noticing package is gener ated through

an automated system maintained by Data Services and offers

substantially affected persons a point of entry to contest the

proposed agency action.

4. More than one TSR can be issued by the District while

an application is pending. However, only one noticing package

(which includes a point of entry) is sent to the applicant and

interested persons. After a point of entry is offered, the TSR

is placed on the agenda of the District's Governing Board, which

may approve, approve with modification , or deny the application.

In the rare case when the Governing Board reaches a decision

which "substantially differs from the notice of District

decision," a new point of entry is offered.

5. After a TSR is issued, and a point of entry offered,

but befor e the Governing Board considers the matter, an

applicant may still submit new information to the staff in an

effort to resolve any outstanding issues raised in the TSR.

Indeed, in some cases, a "revised" TSR may be prepared, which

reflects any changes bro ught about by the submission of new

information, but a new point of entry is not offered (unless the

changes in the revised TSR are substantial). When a revised TSR

is prepared, it typically contains strike - throughs and

underlines to reflect any changes m ade.

6. In this case, a number of contentious issues arose

between the City and the staff during the review process,

particularly involving impacts to wetlands. Consequently,

between December 1998 and September 2000, at least four requests

for additiona l information were made by the staff. However,

this information never fully resolved the issues to the staff's

satisfaction. On July 11, 2003, the staff issued a draft TSR

containing its preliminary conclusions, including one regarding

the wetland impact s issue. Because the TSR was a "draft," it

was not accompanied by a Written Notice of Intended Decision or

Notice of Rights.

7. At the request of the City, on October 3, 2003, a

"primarily technical" meeting was held in Daytona Beach for the

purpose of allowing the staff to give a presentation concerning

its findings in the draft TSR. Several City staffers attended

the meeting. No attorneys for either party were present.

8. Mr. Dennis R. Colby, then the City's Manager of Water

and Wastewater Utilitie s, and the person who signed the City's

application, recalled that at the meeting Mr. Dwight T. Jenkins,

Division Director and an attendee at the meeting, advised him

that the City would "have its day in court" after the Governing

Board voted on the permit application. Mr. Colby, who is not an

attorney, says he understood this to mean that the City could

request a hearing after the Governing Board voted on the City's

application. He did not confirm this understanding with any

other person, including anyon e at the District or in the City

Attorney's Office, nor did he raise the issue again.

9. Another City staffer, Stan R. Lemke, City Public Works

Director, attended the same meeting and recalled a slightly

different version of events in which Mr. Jenkins allegedly said

words to the effect that "if [the City] got to the Governing

Board and [the City] didn't like the outcome," that it could

then file a petition for a hearing.

10. Mr. Jenkins "very clearly" recalled that he did not

offer any procedural adv ice at that meeting and that all of his

comments were directed to technical issues. Another District

employee, James Hollingshead, who also attended the meeting,

could not recall Mr. Jenkins giving any procedural advice of the

type described by Mr. Colby or Mr. Lemke. The testimony of

Mr. Jenkins is accepted as being the most credible on this issue

because Mr. Jenkins is also an attorney and he "fully

underst[ood] the ramifications that are associated with advising

somebody regarding their legal rights ."

11. On January 26, 2004, the Division finalized its TSR on

the City's application and alerted Data Services that a noticing

package should be sent to the City and other interested persons.

On January 29, 2004, Data Services issued a computer - generated

package consisting of the TSR, Notice of Intended District

Decision, and Notice of Rights. The TSR recommended approval of

Permit Application 8834 subject, however, to twenty - four special

conditions, of which nine are opposed by the City. The Notice

of Rights specifically advised the City that it was required to

file a petition for administrative hearing, or a request for an

extension of time to file a petition under Florida

Administrative Code Rule 28 - 106.111(3), by February 26, 2004.

The noticing pack age also indicated that the Governing Board

would take final action on the application at a meeting to be

held on February 10, 2004.

12. Although the City has in - house counsel, and later

hired outside counsel to represent it in this action, on its

applica tion filed with the District, the City listed Mr. Colby

as its designated representative. (The City never advised the

District that notices and other papers should be sent to anyone

other than Mr. Colby.) Consistent with its practice of sending

all notic ing packages to the designated representative on an

application, Data Services sent the noticing package to

Mr. Colby by certified mail. The receipt (green card) indicates

that the Notice of Rights (and other documents) was received by

the City on J anuary 30, 2004, as acknowledged by the signature

of another City employee, Francis X. Bell, who is authorized by

the City to sign the return receipt green cards. It is fair to

infer from the evidence that Mr. Colby did not alert the City

Attorney about t he deadline provided in the Notice of Rights or

seek legal advice on what steps the City should take. In fact,

the evidence shows that it was not until at least March or more

likely April 2004 that an attorney for the City became involved

in this matter. 1

13. On February 1, 2004, the District published a notice

in The News Journal , a newspaper of general circulation in

Volusia County, advising that a notice of intent regarding the

City's application had been issued and that all petitions for

administrativ e hearings must be filed within 21 days after

publication of the notice, or within 26 days of the District

depositing the Notice of Intent in the mail for those persons

who receive actual notice.

14. At the City's request, on February 3, 2004, City

repr esentatives again met with staff to discuss the pending

case.

15. Because the City was aware that the Governing Board

intended to take final action on the City's application at its

February 10 meeting, on February 4, 2004, Mr. Lemke sent a

letter to Mr . Jenkins requesting that the District defer

consideration of the application until a later date. More

specifically, the letter stated in relevant part that

I understand we are on the February 10, 2004

Agenda for discussion of our consumptive use

permit. We believe additional discussion is

warranted prior to proceeding. Please

accept this as a formal request for an

extension.

* * *

Our consultant recently hired a biologist to

assist in the review of the wetlands

information. His analysis res ulted in a

report on the wetland condition dated

January 28, 2004. A copy of this report is

enclosed for your review.

It is our opinion following your review of

the information presented our respective

staffs should meet one more time to resolve

our tech nical differences. Following this

meeting, I believe we will be prepared to go

before the Board for issuance of our

consumptive use permit. We would like to

request we be placed on the April Agenda to

allow adequate time for comments.

16. The letter di d not request a hearing, request an

extension of time to file a request for a hearing, or otherwise

directly or indirectly respond to the Notice of Rights

previously received by the City on January 30, 2004. Although

the City suggests otherwise, a fair co nstruction of the letter

is that Mr. Lemke was simply asking that the City's application

be placed on the April 2004 agenda, so that the staff could

review the biologist's report prepared a few days earlier. In

accordance with Mr. Lemke's request, Mr. Jen kins asked that the

item be removed from the February 10, 2004, agenda and that it

be rescheduled to the April 2004 meeting.

17. On February 5, 2004, Mr. Witt, a hydrogeologist

employed by the City since August 2003 as an outside consultant,

also sent a letter to Mr. Jenkins labeled as a "Time Extension

Request" in which, among other things, he requested

on behalf of the City that the [District]

postpone by two (2) months (i.e., time

extension) their submittal of the staff

report and permit for the gove rning board

for approval. It is the City's desire to

avoid having to file for an administrative

hearing in order to have an impartial

review.

18. At hearing, Mr. Witt explained that he had been

authorized by Mr. Lemke to send the letter. Also, while the

letter did not specifically say so, Mr. Witt stated that it was

intended to serve as a request for an extension of time to file

a request for a hearing, and not simply to request a

postponement of a decision by the Governing Board.

19. Before drafti ng his letter, Mr. Witt did not consult

with an attorney or read the Notice of Rights, the District's

procedural rules, or the Uniform Rules of Procedure. According

to Mr. Colby, Mr. Witt was authorized to "evaluate documents,

report back to the [C]ity, a nd have communications with St.

Johns, ask questions from St. Johns, [and] look at documents."

It seems unlikely, however, that the City had authorized

Mr. Witt, a hydrogeologist, to protect its legal rights, and it

never advised the District that Mr . Witt was authorized to seek

that type of relief. In any event, because Mr. Witt was in the

process of preparing a report on wetlands impacts (which was

completed on February 27, 2004), a fair construction of the

letter is that Mr. Witt was merely second ing Mr. Lemke's request

that the Governing Board take up the City's application at a

later date so that the staff could consider the newly - prepared

consultants' reports prior to a final decision being made.

20. Mr. Jenkins did not treat either letter as a formal

request for an extension of time to file a request for a hearing

under Florida Administrative Code Rule 28 - 106.111(3) and

therefore did not forward them to the District's Office of the

General Counsel. Instead, he treated them as requests to def er

consideration of the application by the Governing Board until a

later date. This action was consistent with the language in the

two letters. It also comports with testimony by Mr. Colby and

Mr. Lemke that they were under the impression, albeit incorre ct,

that it was not necessary to file a request for a hearing until

after the Governing Board voted on the City's application.

Finally, although it would seem logical to do so if the two

letters were intended to be requests for an extension of time to

fil e a petition, neither Mr. Lemke or Mr. Witt made any follow -

up inquiry to determine if their "requests" for an extension of

time had been granted, and if so, the new date for filing a

petition.

21. On March 3, 2004, Mr. Lemke sent a letter to a

District h ydrologist, James Hollingshead, in which he indicated

that the City agreed with all twenty - four conditions in the

Permit except conditions 2, 3, 6, 10, 12 - 14, 19, and 24. As to

those conditions, Mr. Lemke proposed suggested changes. The

letter did not re quest a hearing, but did indicate that the City

looked "forward to a meeting with the District staff prior to

the April Board meeting." The letter also included Mr. Witt's

report completed a few days earlier.

22. After receiving Mr. Witt's report (and th e earlier

report by the City's biologist), the staff undertook another

review of the application in light of the new information in the

reports. On March 25, 2004, Mr. Hollingshead telephoned

Mr. Lemke and advised that the staff had conducted an addi tional

field investigation and that its analysis would not be completed

for two more weeks. As a consequence, the staff was requesting

that the TSR dated January 26, 2004, be taken up at the

Governing Board's May 2004 meeting, and not in April, as

origin ally planned.

23. On April 14, 2004, Mr. Hollingshead e - mailed Mr. Lemke

and advised him that the staff had completed its review of

Mr. Witt's report and that except for certain "date changes" in

the permit conditions, it did not intend to change its

recommended agency action.

24. At the request of the City, on April 20, 2004, another

meeting was held with the staff. Mr. James Thurrott, who is the

City's Assistant Manager for Water and Streets, attended the

meeting and says he recalled Mr. Jenkins a dvising that the City

could either mediate the dispute or have "an administrative

hearing once the governing board took an action." Mr. Witt, who

also attended that meeting, recalled that Mr. Jenkins described

the point of entry process and that the Gover ning Board

"preferred it be done before the [B]oard meeting, but it could

be done after the [B]oard meeting." (Mr. Witt's recollection of

this conversation was somewhat confusing, for he first indicated

that the meeting occurred in October 2003 and then l ater stated

it was February 2004. More than likely, however, Mr. Witt was

referring to the meeting held on April 20, 2004, since Mr. Witt

recalled that the City's outside counsel was also present at the

meeting.)

25. Again, Mr. Jenkins denied giving p rocedural, as

opposed to technical, advice to the City and says he referred

any legal questions to the City's outside counsel, who by then

was participating in the case and attended this meeting. This

version of the events is accepted as being more credib le,

particularly since counsel for the City was present.

26. On April 26, 2004, the Division prepared another TSR

incorporating certain changes to the conditions suggested by the

City. Due to inadvertence and miscommunication, Data Services

generated a second noticing package on April 29, 2004,

containing not only the new TSR, but also another Notice of

Intended Decision (Second Notice) and Notice of Rights. While

no changes were made to conditions 2, 3, 6, 10, and 19, certain

changes (presumably sugge sted by the City) were made to the

other disputed conditions. These changes, however, were not so

substantial as to warrant the issuance of another point of entry

(even though one was erroneously sent by Data Services).

27. The second package was sent by certified mail to

Mr. Colby and was received by the City on April 30, 2004. The

return receipt indicates that Francis X. Bell again signed the

green card on behalf of the City.

28. At the City's request, on May 3, 2004, the City and

staff held ano ther meeting to discuss the proposed permit

conditions and wetlands mitigation projects.

29. On May 5, 2004, Mr. Lemke sent a letter to Mr. Jenkins

in which he indicated that, based on discussions at the May 3

meeting, the City was offering additional sug gestions regarding

conditions 3, 6, and 14. He also discussed several points of

agreement that were reached at the meeting on other issues.

30. On May 6, 2004, the Division issued a Revised TSR

which incorporated the changes previously made in the April 26,

2004, TSR. (The Revised TSR contains strike - throughs and

underlines reflecting the changes made in the April 26, 2004,

TSR. Whether further changes were made as a result of

Mr. Lemke's letter of May 3 is not of record.) Because the

changes we re not substantial, a new point of entry was not

offered the City.

31. On May 11, 2004, the Governing Board approved the

issuance of the Permit, as recommended in the Revised TSR.

32. On May 21, 2004, the City filed its Petition

requesting a formal h earing and asking that the District modify

the Permit issued on May 11, 2004, "as proposed in [its letters

dated] March 3, 2004, and May 5, 2004." Thus, the City was

challenging special conditions 2, 3, 6, 10, 12 - 14, 19, and 24.

The Petition indicated th at it was being filed in response to

the point of entry received by the City on April 30, 2004. Not

surprisingly, it made no reference to the first point of entry

received by the City on January 30, 2004. After the Petition

was referred to DOAH, the Dist rict filed its Renewed Motion.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57, Florida Statutes (2003).

34. The narrow issue here is whether the District's

Renew ed Motion should be granted on the ground that the City's

Petition was untimely. Pertinent to this dispute is Florida

Administrative Code Rule 28 - 106.111, which provides in relevant

part as follows:

(1) The notice of agency decision shall

contain informa tion required by Section

120.569(1), F.S. The notice shall also

advise whether mediation under Section

120.573, F.S., is available as an

alternative remedy, and if available, that

pursuit of mediation will not adversely

affect the right to administrative

proceedings in the event mediation does not

result in a settlement.

(2) Unless otherwise provided by law,

persons seeking a hearing on an agency

decision which does or may determine their

substantial interests shall file a petition

for hearing with the a gency within 21 days

of receipt of written notice of the

decision.

(3) An agency may, for good cause shown,

grant a request for an extension of time for

filing an initial pleading. Requests for

extension of time must be filed with the

agency prior to th e applicable deadline.

Such requests for extensions of time shall

contain a certificate that the moving party

has consulted with all other parties, if

any, concerning the extension and that the

agency and any other parties agree to said

extension. A time ly request for extension

of time shall toll the running of the time

period for filing a petition until the

request is acted upon.

(4) Any person who receives written notice

of an agency decision and who fails to file

a written request for a hearing withi n 21

days waives the right to request a hearing

on such matters.

35. Florida Administrative Code Rule 40C - 1.1007 provides

in relevant part as follows:

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

District decision" as set forth in Rule 28 -

106.111, F.A.C., mea ns receipt of either

written notice that the District intends to

take or has taken final agency action, or

publication of notice that the District

intends to take or has taken final agency

action. If the District's Governing Board

takes action which subst antially differs

from a written notice of the District's

decision describing intended action, persons

who may be substantially affected shall have

21 days, or for consolidated notice of

intent under section 373.427, F.S., an

additional 14 days, from the da te of receipt

of notice of said action to request an

administrative hearing, but this request for

administrative hearing shall only address

the substantial deviation.

36. Finally, Section 120.569(2), Florida Statutes (2003),

provides in part:

(c) Unless otherwise provided by law, a

petition or request for hearing shall

include those items required by the uniform

rules adopted pursuant to s. 120.54(5)(b)4.

Upon the receipt of a petition or request

for hearing, the agency shall carefully

review the petiti on to determine if it

contains all of the required information. 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, unless it conclusively appears from

the face of the petition that the defect

cannot be cured. The agency shall promptly

give written notice to all parties of the

action taken on the peti tion, shall state

with particularity its reasons if the

petition is not granted, and shall state the

deadline for filing an amended petition if

applicable.

(d) The agency may refer a petition to the

division for the assignment of an

administrative law ju dge only if the

petition is in substantial compliance with

the requirements of paragraph (c).

37. The City argues that its Petition should be accepted

as being timely for three reasons. First, it contends that the

doctrine of equitable tolling applies under the facts presented

here. Second, under Section 120.569(2)(c), Florida Statutes

(2003), if an initial filing is found to be deficient, an agency

is required to dismiss the petition before it is referred to

DOAH. Brookwood Extended Care Center of H omestead, LLP v.

Agency for Health Care Administration , 870 So. 2d 834 (Fla. 3d

DCA 2003). Because the District failed to dismiss the Petition

during its preliminary review, the City argues that the District

is now estopped from asserting that the filing is untimely.

(This contention has been previously rejected. See Order dated

July 26, 2004. The City later filed a Motion for

Reconsideration of that Order which, although not authorized by

the Uniform Rules of Procedure, still remains pending. The

Moti on for Reconsideration is hereby denied.) Finally, the City

argues that the letters filed by Mr. Lemke and Mr. Witt on

February 4 and 5, 2004, respectively, constituted requests for

an extension of time to request a hearing under Florida

Administrative Co de Rule 28 - 106.111(3). These issues will be

dealt with separately below.

38. In order for the doctrine of equitable tolling to

apply, the City must show that it "was misled or lulled into

inaction, that [it] was in some extraordinary way prevented from

a sserting [its] rights, or that [it] mistakenly asserted [its]

rights in the wrong forum." Machules v. Dept. of Admin. , 523

So. 2d 1132, 1134 (Fla. 1988). The latter two circumstances are

not relied upon by the City.

39. The City argues that based on Mr. Jenkins' statements

to City representatives on two occasions (October 3, 2003, and

April 20, 2004), it was misled or lulled into inaction. That

is, Mr. Jenkins' alleged statements led the City to believe that

it could file a request for a hearing after t he Governing Board

voted on its application.

40. As previously found, the more credible evidence

supports a conclusion that Mr. Jenkins did not make any

representations that misled the City or lulled it into failing

to file a request for a hearing. Fur ther, at no point in the

process, until at least March or more likely April 2004, did

City representatives seek legal advice from their own counsel

regarding their legal rights in this proceeding. If any

misunderstanding or false impressions arose, it was wholly due

to inattention or mistakes on the part of the City and not

through representations by the District. Where a party's

inaction is due to its own inattention or mistake, the doctrine

of equitable tolling does not apply. See , e.g. , Jancyn

Manufac turing Corp. v. State, Dep't of Health , 742 So. 2d 473

(Fla. 1st DCA 1999); Patz v. Dep't of Health , 864 So. 2d 79

(Fla. 3d DCA 2003). Therefore, under the facts of this case,

the doctrine of equitable tolling does not apply.

41. The City next contends that the District is now

estopped from seeking dismissal of its Petition because it

failed to comply with the requirements of Section 120.569(2)(c),

Florida Statutes (2003). That statute provides that before a

petition may be forwarded by an agency to DO AH, the agency

"shall carefully review the [initial] petition to determine if

it contains all of the required information," and "if it is not

in substantial compliance, or has been untimely filed," the

agency shall dismiss the petition. The statute goes o n to

provide that an agency shall refer a petition to DOAH "only if

the petition is in substantial compliance with the [above]

requirements."

42. The Petition filed on May 21, 2004, makes no mention

of the first point of entry offered on January 30, 200 4, nor

does it indicate whether the City even received a copy of that

notice. Instead, it alleges that the Petition was filed in

response to the (erroneously issued) second point of entry

received on April 30, 2004. On its face, then, the Petition

appear s to be timely and in substantial compliance since it was

filed on the twenty - first day after the City alleges it received

notice of the District's intended decision on April 30, 2004.

Under these circumstances, it was not improper for the District

to ref er the Petition to DOAH, rather than assuming at that

time, without a proper record basis, that the City had actually

received the first Notice of Rights and had waived its point of

entry. Even assuming arguendo that the District should have

made a prelim inary determination that the Petition was untimely,

the City has cited no authority for the proposition that once a

case is referred to DOAH an agency can no longer assert that a

petition is deficient. Therefore, the undersigned concludes

that Section 120 .569(2)(c), Florida Statutes (2003), does not

bar the District from filing its Renewed Motion. In so ruling,

the undersigned notes that Brookwood , supra , simply confirms

what the statute says: that before a petition is forwarded to

DOAH, an agency must d etermine whether it is in substantial

compliance with the requirements of Section 120.569(2)(c),

Florida Statutes, or has been timely filed. It does not address

the issue of estoppel.

43. The City also contends that the letters filed by

Mr. Lemke and Mr. Witt on February 4 and 5, 2004, constituted

requests for extension of time to file a petition for a hearing

under Florida Administrative Code Rule 28.106.111(3). (By

making this argument, the City implicitly concedes that it was

not misled into believ ing that a petition for a hearing did not

have to be filed until after the Governing Board had voted on

its application; otherwise, it would not have filed papers

allegedly requesting an extension of time to request a hearing.)

44. As previously found, a fair construction of the two

letters is that they were filed for the purpose of requesting a

delay in consideration of the application by the Governing Board

until the staff had time to consider two reports prepared by its

outside consultants, and not to request an extension of time to

file a petition under Florida Administrative Code Rule 28 -

106.111(3). Therefore, the District correctly assumed that the

City was simply asking that its application be taken up at a

later meeting of the Governing Board.

45. Finally, because it was issued in error, the second

Notice of Rights does not provide the City an additional point

of entry to challenge the permit conditions. See Wieler v.

Horse's Head, LTD, et al. and Town of Indian River Shores v.

Horse's Head, LTD, et al. , Case Nos. 99 - 1179 and 99 - 1180, 1999

WL 1486533 at *7 (DOAH June 7, 1999, SJRWMD July 15, 1999)(a

clerical error does not provide a point of entry). Even

assuming arguendo that the April notice constituted a second

point of entry, by failing to ti mely file a challenge after the

January point of entry, the City would retain the right to

challenge only those permit conditions that were changed so

significantly from the January notice as to affect its

substantial interests.

46. In summary, because the Petition was not timely filed,

the District's Renewed Motion should be granted and the Petition

dismissed, with prejudice. See Fla. Admin. Code R. 28 -

106.111(4) and 40C - 1.1007(2)(a). The final hearing now

scheduled on December 7 - 10, 2004, is hereby c ancelled.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the St. Johns River Water Management

District enter a final order dismissing the City of Daytona

Beach's Petition as being untimely.

DONE AND R ECOMMENDED this 29th day of September, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September, 2004.

ENDNOTE

1/ On August 28, 2003, Mr. Lemke copied the City Attorney with

a letter sent to the District's Executive Director thanking the

Executive Director for "facilitating [a] meeting which was

recently held." (City Exhibit 1) Other than that

correspondence, however, there is no evidence that the City

Attorney's Office was involved in, or even aware of, this matter

until at least the spring of 2004.

COPIES FURNISHED:

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405 - 1443

Howard K. Heims, Esquire

Littman, Sherlock & Heims, P.A.

Post O ffice Box 1197

Stuart, Florida 34995 - 1197

Janice M. McLean, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

Kirby Green, Executive Director

St. Johns River Water Management District

Post Office Box 1 429

Palatka, Florida 32178 - 1429

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency t hat

will render a final order in this matter.