05-003209 James Adley vs. St. Johns River Water Management District And Frances Morro Status: Closed Recommended Order on Monday, July 10, 2006.

Summary: Equitable tolling did not operate to excuse late filing of the request for hearing. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES ADLEY, )

)

Petitioner , )

)

vs. ) Case No. 05 - 3209

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT and )

FRANCES MORRO, )

)

Respondents. )

________________________________)

RECOMMENDED ORDE R OF DISMISSAL

This cause came before the undersigned on a Second Motion

to Dismiss (Motion) filed by Respondent, St. Johns River Water

Management District (District). By the Motion, the District

seeks to dismiss the Amended Petition for Administrative H earing

(Amended Petition) filed by Petitioner, Jam es Adley, on the

ground the original request for a hearing was not timely filed.

A Response in opposition to the Motion has been filed by

Petitioner. R espondent, Frances Morro (Applicant), has not

filed h er position on the Motion.

In lieu of an evidentiary hearing on the timeliness issue,

Petitioner and the District have submitted a Statement of

Stipulated Facts (Stipulation) , which was filed on June 16,

2006 , together with Exhibits A through R , which were filed on

June 19, 2006. The exhibits are drawn primarily from District

files p ertaining to two applications filed by Ms. Morro . In

addition, at the undersigned 's request , on June 26, 2006, the

parties supplemented the record by filing a letter (marked a s

Exhibit S ). The parties did not file memoranda of law with the

Stipulation; however, the M otion and Response contain limited

argument regarding the issues raised herein and that argument

has been considered by the undersigned. ( To date, n o papers

have been filed in this case by Ms. Morro, who is not

represented by counsel . ) Because the Motion is dispositive of

this matter, it is unnecessary to reach the merits of the

application.

The issue in this case is whether the Petition for

Administrative Hearing (as later amended) filed by Petitioner on

August 15, 2005, is timely.

FINDINGS OF FACT

Based on the Stipulation of counsel, the exhibits, and the

pleadings filed herein, the following findings of fact are made:

1. On December 11, 1998, Ms. Morro, who is the wife of

Michael J. Morro, the developer of the property, filed her

application with the District for an Environmental Resource

Permit (ERP) , which would authorize the construction of a

surface water management system ( including one wet - detention

pond) to serve a 12 - lot, single - family residential subdivision

known as Tranquility on Lake Brantley in Seminole County,

Florida. In more specific geographic terms, the project is

located on the south side of Wekiva Springs Road, on Cutler

Road, and on the nort h side of Lake Brantley near the City of

Longwood. The application was assigned number 40 - 117 - 0567A - ERP.

The exhibits filed herein suggest that Ms. Morro, and not

Mr. Morro, owns the subject property.

2. After determining that the Applicant provided

reasonable assurance that the proposed activities met the

conditions for issuance of a permit and the system was

consistent with its review criteria, on July 14, 1999, the

District approved the applica tion and issued Permit Number 40 -

117 - 51722 - 1 (1999 Per mit). However, the Permit did not

authorize the construction of a retaining wall on Lot 10 of the

Applicant's property. There is no record of any third party

challenging the issuance of the 1999 Permit.

3. On February 19, 2002, the Applicant submitted " as built

drawings" to the District, as required by C ondition 10 of the

1999 Permit , to enable the District to verify that the work was

completed in compliance with the approved plans and

specifications. These as - built drawings did not reflect a

retaining wall on Lot 10.

4. Mr. Adley resides and owns property at 880 Lake

Brantley Drive, Longwood, Florida, which is "next to" the Morro

pro perty . It is fair to say that a less - than - harmonious

relationship exists between the two neighbors. Indeed, the

exhibit s reflect that Mr. Adley, the Applicant, and the

Applicant's surveyor "have been involved in several causes of

action between them over details of development on this

property , " and that over the years Mr. Adley has filed numerous

complaints with the Distr ict regarding alleged violations by the

Applicant while she performed work under the 1999 Permit.

Mr. Adley is familiar with ERPs and the process for obtaining

one, having had ownership interests in businesses that have

obtained ERPs from the District, and having participated in the

activity undertaken to obtain the permits and then implement the

activities authorized by the permits.

5. On May 16, 2003, Mr. Adley sent a letter to Kirby A.

Green, III, Executive Director of the District, citing seven

iss ues regarding Ms. Morro's proposed subdivision and asking

that he be notified, in writing, "of any modifications to the

permit, request for modifications of the permit, notice of

violations, change to the approved plan, changes to the

Covenants and Article s of Incorporation, an y other changes to

the proposed construction activities and any public notices that

would effect [sic] [his] right to file for an administrative

hearing." Mr. Adley also indicated that he had scheduled a

meeting with William E. Carli e, Jr., District Compliance

Manager, to be held on May 19, 2003, "to discuss these issues

with him in person."

6. On May 29, 2003, Mr. Adley sent a letter to Duane

Ottenstroe r , then Chairman of the District 's Governing Board ,

regarding "the subdivision being constructed next to [his]

home." In his letter, he voiced concerns about the recorded

conservation easement on the Morro property being significantly

different from the easement approved by the 1999 Permit. He

also complained that the Applicant had submitted false

information with an application submitted to the District in

1991. Finally, he enclosed a copy of the letter previously sent

to Mr. Green.

7. On June 6, 2003, Mr. Adley sent a second letter to

Mr. Carlie advising that the Applicant w as violating the

conditions in the 1999 Permit in five respects. The letter

confirmed that Mr. Adley would again meet with District staff

concerning this matter on June 11, 2003.

8. After conducting an investigation regarding Mr. Adley's

allegations of violations by the Applicant, on September 12,

2003, K. Wilford Causseaux, an engineer in the Department of

Water Resources, sent a letter to the Applicant's surveyor,

Michael W. Solitro (who Mr. Adley says is the former Seminole

County S urveyor who loaned the Applicant money in April 1998 to

develop the land and then purchased a discounted lot from the

Applicant in return for "development services" ), affirming the

staff's finding that the "construction on [Morro's] residential

property on Brantley Drive ha s encroached on the 100 - year flood

plain in the rear yard of Lot 11." Also, the l etter identif ied

the remedial steps that must be undertaken to correct three

"issues associated with [the] residential construction."

Finally, the letter noted that Mr. Morr o had agreed to remove

fill on Lot 7 that violated the "limits of construction" and

return the rear - lot grading to its pre - development condition.

9. On September 29, 2003, Mr. Adley sent a third letter to

Mr. Carlie confirming that the District had not a llowed the

Applicant to construct a retaining wall in lieu of a swale on

Lot 11 and that if the Applicant wished to construct a wall, she

must apply for a modification to the 1999 Permit. The letter

also noted that Mr. Carlie agreed to notify Mr. Adley "i n

writing of any modification to the permit , " including "minor"

modifications. Finally, Mr. Adley requested the status of the

incorrect conservation easement recorded on the property.

10. Apparently in response to that letter, by email dated

October 10, 2003, Mr. Carlie notified District counsel that

Mr. Adley "has submitted a written request for actual notice of

any proposed modification of this permit, will likely object,

and potentially will challenge any agency action in this regard

to a 120 hearin g."

1 1. On October 24, 2003, Mr. Carlie responded to

Mr. Adley 's letter of September 29, 2005, and advised him that

the staff had determined that " portions of the fill placed for

development of [Lot 11] are waterward of the limits of

constructio n" and that this action "is a violation of the permit

subject to enforcement action." The letter confirmed that the

District understood Mr. Adley's "request to be noticed of any

modifications of the reference permit" and promised that "actual

notice (mail ed notice to your residence) of any action this

agency undertakes in this regard" would be given. Mr. Carlie

further explained that some m odifications to a permit could be

issued by letter, while other modifications required an

application, fee, and forma l agency action. He indicated that

the remedial steps outlined in his letter dated September 12,

2003, to Mr. Solitro "may qualify for a permit modification by

letter under the provisions of section 40C - 4.331 F.A.C."

Finally, Mr. Carlie stated that the " District continues to

understand your concern about this project and request to be

noticed of any modifications of the reference permit. You will

be provided actual notice (mailed notice to your residence) of

any action this agency undertakes in this rega rd."

1 2 . Also o n October 23, 2003, Mr. Carlie sent a second

letter to Mr. Adley outlining in detail the results of the

District's investigation of Mr. Adley's co ncerns expressed in

various letters and at least two meetings with staff .

1 3 . On May 3 , 200 4, Frank J. Meeker, the District's

Ombudsman, sent Mr. Adley a letter regarding a Verified

Complaint dated April 1, 2004, that Mr. Adley had filed wi th the

Executive Director. (The Verified Complaint was not included in

the exhibits which accompanied the Stipulation, but a copy is

attached to the Motion.) The letter responded to " six specific

objections " Mr. Adley had raised concerning work on the Morro

property . It also instructed the District staff to prepare ,

within thirty days, a letter of modificati on to the 1999 Permit

which addressed the conservation easement, monuments, and 100 -

year flood elevation issues, together with a recommendation for

approval or denial, and to submit the modified conservation

easement to the Executive Director for a pproval or denial.

Finally, the letter noted that Mr. Adley would receive "written

notice of these actions" and an opportunity to object to these

modifications. The record is unclear whether Mr. Meeker's

instructions to staff resulted in a letter of modification to

the 1999 Permit without further action by the Applicant , or

whether it triggered a n application by the Applicant to modify

her 1999 Permit based upon the staff recommendation s . More than

likely, the latter occurred .

1 4 . On May 26, 2004, Mr. Meeker p rovided a follow - up

letter to Mr. Adley in which he confirmed that Mr. Adley had

been given a copy of the project plans dated June 17, 1999, used

by Ms. Morro in securing the 1999 Permit. He further advised

that until he received a staff survey "to determ ine the size of

the dock [for purposes of determining if a permit was required]

and the location of the red wall and retaining wall , " no

disposition of those issues could be made. Finally, he advised

that no formal request for modification of the 1999 Per mit had

been filed, but if and when one was filed, he was "directing

staff to supply you with a copy of such application."

1 5 . On July 6, 2004, Ms. Morro filed an application with

the District seeking to modify her 1999 Permit. (The

application noted tha t Mr. Morro would serve as Ms. Morro's

authorized agent to secure the permit.) In the application,

Ms. Morrow described the proposed activity as follows:

"Alteration of permitted conservation easement[,] to remove

easement from lot 11 [,] and provide rese rved rights for

construction of 2 single family docks." This application was

assigned n umber 10 - 117 - 51722 - 2. As noted above, t he application

did not include a provision for a retaining wall on Lot 10.

However, sometime between the time the application w as filed in

July 2004 and January 21, 2005, the Applicant amended her

application to add a request for a retaining wall.

16. By email dated July 12, 2004, counsel for the District

notified the reviewer of the application, Anthony Miller, that

"I told Mr. Adley to call PDS [Permit Data Services] . Who

should I contact there to see what notice was sent? Mr. Adley

is going to challenge this so we need to make sure everything is

done right." Mr. Miller emailed back the following response:

"I have no idea. I assume it was noticed as usual through PDS

to those listed to receive notices. Should we do anything more,

like contacting Mr. Adley directly?"

1 7 . By letter dated July 15, 2004, Mr. Carlie forwarded a

"complete copy" of Ms. Morro's application to Mr . Adley. The

letter noted that Mr. Adley's receipt of the l e tter, attached

materials, and notice of rights "shall serve [as] the notice you

requested for the purposes of timeframes under Chapter 120,

F.S." (A copy of Notice of Rights was enclosed; it set out in

detail the process by which Mr. Adley could request a formal

hearing.) The e nclosed construction drawings did not indicate

the inclusion of a retaining wall.

1 8 . During the staff's review process of the application,

t wo Requests for Additional Information (RAI) were sent by the

District to M r . Morro on August 3, 2004, and January 21, 2005.

Significantly, item 4 on page 2 of the RAI dated January 21,

2005, noted that " [t]he plans indicate that a retaining wall is

proposed . Please provide detail ed calculations, and a revised

wall detail as necessary, to demonstrate that this portion of

the surface water management system will function as intended."

(Emphasis added) Copies of both RAIs were sent to Mr. Adley.

1 9 . On February 28, 2005, the Appli cant filed a letter and

attachments in response to the January 21, 2005 RAI, which

included, among other things, plans and details prepared by a

professional engineer for a retaining wall to be located

landward of the 100 - year floodplain, the limit of cons truction.

The Stipulation and exhibits do not indicate whether these

documents were ever provided to Mr. Adley at that time . 1

However, on March 9, 2005, they were provided to his counsel for

review . See Finding of Fact 21, infra .

20 . By letter dated January 21, 2005, Mr. Adley's former

counsel (Timothy A. Smith, Esquire) made a public records

request for inspection of "the d istrict files relating to p ermit

n umber s 40 - 117 - 51722 , 40 - 117 - 0567, and any other district

permits or applications for such permi ts relating to the

property owned by Frances and Michael Morro o n Brantley Drive

along the northern shore of Lake Brantley . " (The letter

indicates that Mr. Smith would meet District counsel in Palatka

on January 25, 2005, to review this part of the record s

request.) The letter also requested that Mr. Smith be allowed

to review all files of eleven District employees which related

to the various iterations of the Morro project in 1990 - 1991,

1997 - 1998, and 1999 to present. The records pertaining to the

seco nd part of the request were apparently located in another

office and were to be inspected at a later time.

2 1. According to the Stipulation, i n response to the

public records request, o n March 9, 2005, Mr. Smith reviewed all

requested files in the Distric t's main office in Palatka and the

District's field office in Altamonte Springs. (As noted above,

part of the records were inspected on January 25, 2005, in

Palatka.) It is fair to infer that on March 9, 2005, Mr. Smith

would have had the opportunity to review the Applicant's plans

and details for a retaining wall filed with the District on

February 28, 2005. By this time, then, Mr. Adley should have

been on notice that the Applicant had modified her application

and now sought to build a retaining wall.

2 2 . On March 30, 2005, the District , through its Altamonte

Springs field office, approved Ms. Morro's application and

issued Permit No. 40 - 117 - 51722 - 2 (2005 Permit). The 2005 Permit

authorized the modification of the 1999 Permit "to include the

construct ion of a retaining wall along the rear of Lots 6, 7, 8,

9, and 10 and the 'lot split' lot, and to amend the easement on

Lots 9 and 10, to allow selective clearing and trimming of the

conservation easement in accordance with a District approved

landscape pl an, and to exclude lands no longer under the

applicant's control."

2 3 . On April 10, 2005, n otice of the issuance of the 2005

Permit was published by M s . Morro in the Sanford Herald , a

newspaper of general circulation in Seminole County. See Fla.

Admin. C ode R. 40C - 1.1007(1). The Notice provided that

"[p]etitions for administrative hearing on the above application

must be filed within twenty - one (21) days of publication of this

notice or within twenty - eight (28) days of the District

depositing notice of t his intent in the mail for those person to

whom the District made actual notice. Failure to file a

petition within this time period shall constitute a waiver of

any right(s) such person(s) may have to request an

administrative determination (hearing) unde r sections 120.569

and 120.57, F.S. concerning the subject permit." Therefore, if

notice was received by publication, petitions objecting to the

issuance of a permit were due no later than May 1, 2005 , or if

written notice was given, petitions were due no later than

May 8, 2005 .

2 4 . The District did not send Mr. Adley written notice of

its intent to issue the 2005 Permit. There is no indication in

the Stipulation , exhibits , or Motion as to why notice was not

sent, particularly since Mr. Adley had ma de numerous requests

for written notice of any District action on the property , and

he had been promised such notices by various District personnel

since at least October 2003.

2 5 . On April 25, 2005, Ms. Morro began construction of the

retaining wall auth orized by the 2005 Permit and construction

continued over the next thirty calendar days. It is fair to

assume that the wall was completed on or about May 25, 2005.

26. Also o n April 25, 200 5 , or the day construction began,

at Mr. Adley's direction, Mr. S mith (his former counsel)

telephoned Mr. Carlie to inform him that construction activity

on Lot 10 was taking place. Therefore, it is clear that on that

date, Mr. Adley had observed that construction on the Morro

property had begun.

2 7 . In response to Mr . Smith's telephone call, Mr. Carlie

then requested that two District employees, Mr. Casseaux and

David Eunice, investigate what was occurring on the Morro

property.

2 8 . On the same date that Mr. Smith telephoned Mr. Carlie,

Casseaux and Eunice inspected the Morro property and observed

that a retaining wall authorized by the 2005 Permit was under

construction. It is fair to infer from the stipulated facts

that Mr. Carlie reported these findings to Mr. Smith within a

short period of time.

2 9 . On an undisc losed date, but presumably within a day or

so , Mr. Smith reported to Mr. Adley that he had spoken with

Mr. Carlie and was told the construction was in conformance with

" the Permit " but that Mr. Carlie did not specifically refer to

either the 1999 Permit or the 2005 Permit as authorizing the

work. The Stipulation and exhibits do not indicate whether

Mr. Carlie advised counsel that the 2005 Permit had been

approved . However, given the history of this dispute, it would

be highly unusual for counsel not t o make inquiry about the

disposition of the application, or for Mr. Carlie not to provide

this information during the course of their telephone

conversations , particularly since M r. Carlie was well aware of

Mr. Adley's long - standing interest in the Morro p roject.

30 . Mr. Adley could not tell from his view of the property

whether the exact location of the construction was lakeward of

the limits of construction, which was the 100 - year floodplain,

and therefore could only rely on the District staff.

3 1 . Mr. Adley asserts that he did not learn of the 2005

Permit modification until July 25, 2005, through a conversation

with an unidentified neighbor. Whether Mr. Adley (or his

counsel) then called the District to verify the accuracy of the

neighbor's informatio n is not of record. (The initial Petition

for Administrative Hearing simply alleges that "petitioner

received notice of the District's action on July 25, 2005,

through a conversation with a neighbor.")

3 2 . On August 15, 2005, or twenty - one days later, th rough

counsel, Mr. Adley filed his initial Petition for Administrative

Hearing with the District challenging the issuance of the 2005

Permit. ( The Amended Petition was later filed on October 12,

2005 , as a result of the striking of certain allegations in the

first filing. ) The District 's Motion was then filed on

November 16, 2005. ( Action on the Motion has been delayed

b ecause of substitution of Petitioner's counsel, and delays by

the parties in taking discovery and preparing the S tipulation .)

CONCLUSIO NS OF LAW

3 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this action pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2005) 2 .

3 4 . Section 373.413, Florida Statutes, governs the notice

requirements fo r the issuance of permits to construct or alter a

stormwater management system. Subsection (3) provides in

relevant part that "[a]fter the receipt of an application for a

permit, the governing board . . . shall publish notice of the

application by sending a notice to any persons who have filed a

written request for notification of any pending applications

affecting the particular designated area. Such notice shall be

sent by regular mail." Subsection (4) further provides in

relevant part that "[i]n addit ion to the notice required by

subsection (3), the governing board . . . may publish, or

require an applicant to publish at the applicant's expense, in a

newspaper of general circulation within the affected area, a

notice of receipt of the application and a notice of intended

agency action . . . . The governing board . . . shall also

provide notice of this intended agency action to the applicant

and to persons who have requested a copy of the intended agency

action for that specific application."

3 5 . Und er the foregoing statutory scheme, when an

application has been filed, the District must send notice of the

filing of that application to any persons who have filed a

written request for notification of any pending application.

Likewise, o nce a decision h as been made to issue a permit, the

District must provide notice of that decision to any person who

has requested a copy of the intended agency action.

3 6 . The District provided Mr. Adley with a copy of the

application for the 2005 Permit, as required by S ubs ection (3).

How ever, it concedes that (for reasons not given ) it failed to

send Mr. Adley written notice of its intended agency action

issued on April 10, 2005 , as required by S ubs ection (4) . Even

so, it contends that under the rationale in Wentworth v. State,

Department of Environmental Protection et al. , 771 So. 2d 1279

(Fla. 4th DCA 2000), Mr. Adley received actual notice of

approval of the application on April 25, 2005 , when he observed

the construction authorized by the 2005 Permit , and he was

ob liged to thereafter file his request for a hearing in a timely

manner . Although the Motion does not state the time limitation

for filing a petition under these circumstances, the parties

appear to agree that once actual notice is provided, a twenty -

one da y time period would apply.

3 7 . In his Response to the District's Motion, Mr. Adley

does not address the Wentworth decision or its rationale.

(Similarly, the District's Motion does not address the legal

ground advanced by Mr. Adley in his Response .) Al so, he

concedes that his request for a hearing was not filed within the

twenty - one day window after publication of the notice on

April 10, 2005, or even after he observed the construction on

April 25, 2005. However, he points out that in his Amended

Pe tition , there are allegations , which must be accepted as true

for purposes of ruling on the Motion , that he made repeated

requests for written notice of any District action regarding the

Morro property, including the issuance of the 2005 Permit, and

that h e reasonably relied on numerous representations by

District employees that he would be given written notice of any

such action. Given these allegations, he argues that under the

holding in Avante, Inc. et al. v. Agency for Health Care

Admin istration , 722 So. 2d 965 (Fla. 1st DCA 1998), an

evidentiary hearing must be held on the limited issue of whether

equitable tolling operates to excuse the late filing of his

petition. Because the parties have submitted a Stipulation and

exhibits and waived their right to an evidentiary hearing, the

existing record will be used to adjudicate that issue. Finally,

Mr. Adley contends that the issue of timeliness itself was not

timely raised, as it should have been asserted as an affirmative

defense in the District's answer to the original Petition for

Administrative Hearing, rather than by a motion to dismiss. As

to this latter contention, the Uniform Rules of Procedure do not

require that a respondent file an answer to a petition. See

Fla. Admin. Code R. 28 - 106.203 ("[a] respondent may file an

answer to a petition") . Thus, in order to preserve the issue,

the District was not required to raise this ground by way of an

affirmative defense in an answer to the original Petition.

Moreover, it is noted that this ground for di smissal was

initially raised by the District in its first Motion to Dismiss

dated August 31, 2005, s ee Paragraphs 3 and 4, Motion to

Dismiss, and later renewed in its Second Motion to Dismiss. The

argument is therefore rejected.

3 8 . Contrary to the Distr ict's assertion, W entworth did

not hold that a point of entry is automatically triggered when a

third party first sees construction activity; it only held that

a request for administrative hearing filed promptly after

knowledge of a project is timely. 3 Te rwilliger et al. v. South

Florida Water Management District et al. , DOAH Case No. 01 - 1504

(DOAH Feb. 27, 2002; SFWMD April 15, 2002) 2002 Fla. Div. Adm.

Hear. LEXIS 149 at *72. In order to trigger a point of entry,

actual notice must also include "knowled ge of the hearing rights

flowing from agency action, not just knowledge of the project's

existence, or even knowledge of an agency's permitting activity

in conjunction with the project." Id. at * 73.

39 . Equitable tolling is generally applied in an

adm inistrative proceeding when a person has been misled or

lulled into inaction, has in some extraordinary way been

prevented from asserting his rights, or has timely asserted his

rights mistakenly in the wrong forum. See Machules v.

Department of Administra tion , 523 So. 2d 1132, 1134 (Fla. 19 8 8).

(In his Response, Mr. Adley asserts that he was lulled or misled

into inaction because he relied upon the District's

representations that written notice would be provided when the

application was approved; he does not assert that in some

extraordinary way he was prevented from requesting a hearing, or

that he mistakenly filed his request in the wrong forum . ) The

application of the doctrine to allow the prosecution of an

untimely administrative proceeding is depende nt, in part, upon a

showing that the litigant has not slept on its rights. Machules

at 1135. Th us, th e doctrine is designed to protect the

"reasonably prudent" litigant. Id. While t he facts presented

here differ from the facts presented in Machules 4 , t h e broad

principles enunciated in that decision still apply. Finally, as

the party asserting the applicability of equitable tolling to

overcome the waiver of his right to a hearing, Mr. Adley has the

burden of proving by a preponderance of the evidence th e

existence of factors that justify application of the doctrine.

See , e.g. , Dept. of Envir. Reg. v. Puckett Oil Co. , 577 So. 2d

988 (Fla. 1st DCA 1991)(late filing presumed to be a waiver of

rights but may be rebutted at an evidentiary hearing).

4 0 . Ev en though Mr. Adley may have been initially misled

or lulled into inaction by District promises of written notice ,

t he totality of the evidence shows that by April 25, 2005,

Mr. Adley knew, or should have known , that the application had

been approved an d a permit issued. In other words, by that

date, not only had Mr. Adley observ ed construction activity on

the site , but he also had gathered other information during the

preceding months, which coupled with his understanding of the

ERP process, should hav e provided him with knowledge of the

hearing rights flowing from the agency action. Terwilliger ,

supra . This is because (a) s hortly after January 21, 2005, he

was put on notice that the Applicant had modified her

application by seeking authority to build a retaining wall , s ee

Exhibit O, page 2, item 4 ("The plans indicate that a retaining

wall is proposed.") ; (b) on March 9, 2005, his counsel reviewed

all documentation relating to the "various iterations of this

project," see Exhibits P and S and Stipulat ion, paragraph 22,

which would have included the plans and details regarding the

retaining wall which were attached to the Applicant's letter

dated February 28, 2005; (c) on April 25, 2005, Mr. Adley

actually observed the Applicant begin constructi ng a ret aining

wall on her property (presumably in the manner and location

described in the plans and application) and instructed his

attorney to call Mr. Carlie to inform him about the work , s ee

Stipulation, paragraph 26 ; and ( d ) Mr. Adley was well aware that

the 1999 Permit did not authorize a retaining wall, see Findings

of Fact 2 and 9, while the 2005 Permit, once issued, would

authorize one . At the same time, Mr. Adley is familiar with the

ERP process, having participated in the securing of various ERPS

over the years , s ee Finding of Fact 4. For example, he

obviously knew that a petition must be filed no later than

twenty - one days after receiving actual notice since he filed his

petition exactly twenty - one days after speaking with his

neighbor. See Finding o f Fact 32.

4 1 . In light of these facts and circumstances, it is

concluded that after April 25, 2005, the doctrine of equitable

tolling did not excuse Mr. Adley's failure to file a petition.

This is because, at a minimum, given the information at hand, a

reasonably prudent person would have made inquiry about the

status of the Morro application. Machules at 1135. By failing

to make any type of inquiry, or take any affirmative steps to

protect his interests until August 15, 2005, Mr. Adley did not

exhib it reasonable prudence and essentially slept on his rights.

Id. Even if Mr. Adley did not understand the significance of

the construction until the entire wall was completed around

May 25, 2005, the facts and circumstances support a conclusion

that a c lear point of entry would have arisen no later than that

date , and he should have filed his petition within twenty - one

days thereafter. The filing of his request for a hearing is

therefore untimely and should be dismissed, with prejudice.

Based on the f oregoing Findings of Fact and Conclusion of

Law, it is

RECOMMENDED that the St. Johns River Water Management

District enter a final order granting the District's Second

Motion to Dismiss and dismissing, with prejudice, the Amended

Petition for Administrat ive Hearing.

DONE AND ENTERED this 10th day of July , 200 6 , in

T allahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(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 10th day of July , 200 6 .

ENDNOTE S

1 / The parties were requested by the undersigned to stipulate

whether or not the February 28, 2005 letter and attachments were

provided to Mr. Adley. A stipulation was never filed.

(District counsel filed a letter on July 6, 2006, stating that

opposing counsel had not responded to their inquiries.)

2/ All references are to the 2005 version of the Florida

Statutes.

3 / In Wentworth , the applicant sought permission from the

Department of Environmental Protection (Department) to build a

single - family dock structure over sovereign submerged lands with

a noticed general perm it. After the Department notified the

applicant that he met the requirements for a noticed general

permit, Mr. Wentworth began construction of the dock structure.

He also declined to publish notice of the agency action, as

suggested by the Department, an d the Department did not send

written notice of this action to his neighbors (since none had

been requested). When the neighbors actually saw the

construction taking place, they first contacted the applicant

objecting to the size of the dock and then file d a request for

an administrative hearing challenging the ongoing dock

construction. In its Amended Final Order, the Department

rejected an argument by the applicant that the neighbors lacked

standing to file their challenge. In doing so, the Department

concluded that because no written notice had been given, and the

applicant declined to publish notice in a newspaper, the agency

action did not become final, and the neighbors were not given a

point of entry into the proceeding until they actually observed

construction on the applicant's property. Vogel v. Wentworth et

al. , DOAH Case Nos. 99 - 0289 and 99 - 0290 (DOAH Aug. 25, 1999; DEP

Oct. 28, 1999) 1999 Fla. ENV LEXIS 287 at *19. On appeal, the

Court affirmed the Department's decision and held that "[s]inc e

the [neighbors] were not sent written notice of the agency

action and Wentworth did not publish such notice, Wentworth's

neighbors were denied 'a clear point of entry' until they

actually saw the construction taking place." Wentworth at 1281.

4 / In Ma chules , a Department of Insurance (DOI) employee was

terminated for misconduct and was given written notice that he

had the right to appeal that decision to the Department of

Administration (DOA) within twenty days. The employee took the

notice to his uni on, who then filed a contractual grievance on

his behalf with DOI, rather than filing an appeal with DOA. A

DOI hearing on the grievance was held, but the grievance was

later denied on the ground it was not cognizable under the union

contract and that his only appeal was to DOA. However, because

the time for filing an appeal with DOA had expired one day

before the grievance hearing was held, DOA held that the appeal

was untimely. This decision was later affirmed by the First

District Court of Appeal. Ma chules v. Department of

Administration , 502 So. 2d 437 (Fla. 1st DCA 1986). The matter

was then certified to the Supreme Court, which quashed the

decision of the district court and held that the doctrine of

equitable tolling applied because the employee, a lay person,

was misled or lulled into inaction by his employer, given the

DOI's agreement to hold the grievance hearing one day after the

twenty - day appeal period had expired, and its failure to warn

the employee that he was pursuing the wrong remedy. M achules at

1134.

COPIES FURNISHED:

Kirby A. Green III, Executive Director

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177 - 2529

J. A. Jurgens, Esquire

J. A. Jurgens, P.A.

505 Wekiva Springs Road, Suite 100

Longwood, Florida 32779 - 6192

Vance W. Kidder, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka , Florida 32177 - 2529

Frances Morro

885 Cutler Road

Longwood, Florida 32779 - 3525

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the ri ght 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 that

will render a final order in this matter.