06-000182GM West Beaches Neighborhood Defense, Inc.; Leslie Pennel; Cornellia F. Hammond; And Estelle M. Hicks vs. Bay County And Department Of Community Affairs Status: Closed DOAH Final Order on Thursday, April 6, 2006.

Summary: The petition was dismissed because it was untimely filed and factors that would justify equitable tolling were not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST BEACHES NEIGHBORHOOD )

DEFENSE, INC.; LESLIE PENNEL; )

CORNELLIA F. HAMMOND; AND )

ESTELLE M. HICKS , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 0182GM

)

BAY COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS , )

)

Respondent s , )

)

and )

)

LEGACY BEACH, INC., )

)

Intervenor . )

)

FINAL ORDER OF DISMI SSAL

A hearing in this case was held on March 8, 2006, in

Tallahassee, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners:

Diane C. Brown, Qualified Representative

241 Twin Lakes Drive

Laguna Beach, Florida 32413

For Respondent Bay County:

Terrell K. Arline, Esquire

3205 Brentwood Way

Tallahassee, Florida 32309

For Respondent Department of Community Affairs (DCA)

Kelly A. Martinson, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Intervenor Legacy Beach, Inc.:

Gary K. Hunter, Esquire

Hopping, Green & Sams

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

PRELIMINARY STATEMENT

This case was initiated on January 17, 2006, when

Petitioners filed their "Petition C hallenging Bay County Land

Development Regulation and Request for Administrative Hearing"

with the Division of Administrative Hearings. The petition was

filed pursuant to Section 163.3213(5), Florida Statutes, 1/ which

provides that a substantially affecte d person may request a

hearing from DOAH to contest a determination by the Department

of Community Affairs that a local government land development

regulation is consistent with the local comprehensive plan. The

order of the Administrative Law Judge in su ch a proceeding is a

final order.

The petition in this case contested DCA's December 22,

2005, "Determination of Consistency of Land Development

Regulation" pertaining to Respondent Bay County's adoption of an

amendment to its land development regulation t hat defines the

term "Dwelling, or Dwelling Unit" (hereinafter referred to as

the DCA Determination).

Respondent Bay County moved to dismiss the petition,

asserting that it was untimely because it was not filed within

21 days of the DCA Determination. Pe titioners opposed the

motion to dismiss, arguing that the petition was timely because

it was filed within 21 days of Petitioners' receipt of written

notice of the DCA Determination. The undersigned dismissed the

petition, but granted leave to Petitioners to file an amended

petition that included allegations sufficient to demonstrate a

basis for equitable tolling.

Petitioners filed an amended petition in which they

alleged, among other facts, that they had been misled or lulled

into inaction by statements made by an employee of DOAH.

Respondent Bay County moved to dismiss the amended petition, but

the motion was denied because Petitioners' new allegations, if

proven, could establish a basis for the application of equitable

tolling. An evidentiary hearing was then scheduled to take

evidence solely on the issue of whether there was a factual

basis for equitable tolling of the filing deadline.

At the hearing, Petitioners presented the testimony of

Robert Williams, deputy clerk of DOAH, and Petitioner Diane

B rown. Petitioners' Exhibit 1 was admitted into evidence. No

witnesses or exhibits were presented by the other parties.

Following the filing of the hearing Transcript with DOAH, a

new motion to dismiss was jointly filed by Respondent Bay County

and Inter venor Legacy Beach, Inc., and joined in by Respondent

DCA. A response in opposition to dismissal was filed by

Petitioners.

FINDINGS OF FACT

1. The DCA Determination was issued by Respondent DCA on

December 22, 2005.

2. The DCA Determination included a "Notice of Rights"

which stated that any substantially affected person may request

a hearing from DOAH "within 21 days from the date of this

determination."

3. Twenty - one days from the date of the DCA Determination

was January 12, 2006.

4. In the origi nal petition, it was alleged that

Petitioners received notice by mail "on or about December 26,

2005." At the hearing, Petitioner Brown stated that she

received a copy of the DCA Determination on December 24, 2005,

two days after it was issued, but one of the Petitioners

(apparently Leslie Pennell) received notice on December 27

or 28, 2006.

5. Petitioner Brown read the Notice of Rights statement in

the DCA Determination, but she thought it was inaccurate because

she perceived it to be inconsistent with S ections 163.3213(5)

and 120.569(1), Florida Statutes. She researched other statutes

and rules to resolve this perceived inconsistency.

6. Petitioner Brown's research led her to Florida

Administrative Code Rule 28.106.111(2), 2/ which states: "Unless

other wise provided by law, persons seeking a hearing on an

agency decision . . . shall file a petition within 21 days of

receipt of written notice of the decision." Petitioner Brown

concluded that the petition could be filed 21 days from her

receipt of written notice of the DCA Determination.

7. On January 12, 2006, Petitioner Brown placed a

telephone call to DOAH "to ensure that [she] was interpreting

the rules correctly." She spoke to Robert Williams, deputy

clerk of DOAH. She claims that Mr. Williams conf irmed that the

deadline for filing the petition was 21 days from her receipt of

written notice, and she relied on Mr. Williams' statements in

filing the petition on January 17, 2006.

8. Twenty - one days from Petitioner Brown's receipt of

notice was January 14, 2006, but that was a Saturday and the

following Monday was a state holiday (Martin Luther King, Jr.

Day), so she filed the petition on Tuesday, January 17, 2006.

9. Mr. Williams had no recollection of having a telephone

conversation with Petitioner B rown on January 12, 2006.

Petitioner Brown produced her telephone bill for the month of

January which indicates she made a five - minute call to DOAH on

January 12, 2006. The telephone bill, of course, does not

indicate who she talked to at DOAH.

10. The f irst telephone conversation Mr. Williams can

recall having with Petitioner Brown was during a call he

initiated on January 17, 2006, to tell her she had filed the

petition in the wrong place. Mr. Williams thought the petition

should have been filed with t he DCA. Mr. Williams testified

that during his telephone conversation with Petitioner Brown on

January 17, 2006, he went on the DOAH website and read some of

"DOAH's rules" with her. He does not recall discussing the

issue of her filing deadline.

11. Mr. Williams stated that he never tells people when

they must file a petition. When asked such a question, he

always refers the person to the agency that issued the order.

12. Mr. Williams expressed confidence that he never told

Petitioner Brown when she had to file her petition with DOAH.

Mr. William's testimony is credible and is consistent with the

fact that, on January 12, 2006, he still thought any petition to

challenge a decision made by the DCA had to be filed with the

DCA, not with DOAH. Furthermore , it is unlikely that

Mr. Williams would have forgotten a conversation with Petitioner

Brown on January 12, 2006, if, on that date, he had deviated

from his consistent practice not to tell people when their

petitions must be filed.

13. Petitioner Brown nev er described precisely the

statements allegedly made by Mr. Williams on January 12, 2006,

upon which she relied. His statements were simply characterized

as having "confirmed" that the petition could be filed 21 days

from Petitioners' receipt of notice. Petitioners did not allege

or prove that Mr. Williams understood or addressed the specific

procedural issue of whether the filing deadline indicated in

Section 163.3213(5), Florida Statutes, and stated in the DCA

Determination, was controlling, or, whether the filing deadline

was governed by Rule 28 - 106.111(2).

14. Because Petitioner Brown had already concluded that

she could file the petition 21 days from her receipt of notice

of the DCA determination, it is likely that she interpreted

Mr. Williams' statem ents as confirming that conclusion, even

though Mr. Williams did not understand the premises of her

conclusion, did not intend to confirm her conclusion, and, in

fact, did not confirm her conclusion.

15. Petitioners did not allege there were circumstances

that made filing their petition on January 12, 2006, impossible

or unreasonably burdensome.

16. Petitioners' decision to file their petition on

January 17, 2006, was based on simple error and was not for the

purpose of delaying the proceedings or to ot herwise prejudice

any party.

17. The record contains no evidence that the untimely

filing of the petition in this case has prejudiced Respondents.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties and the subject

matter of this case pursuant t o Sections 120.569, 120.57, and

163.3213, Florida Statutes.

19. Section 163.3213, Florida Statutes, establishes the

procedures for the review of local government land development

regulations to assure that they implement and are consistent

with the local comprehensive plan. Section 163.3213(5)(a),

Florida Statutes, provides in pertinent part:

If the state land planning agency determines

that the regulation is consistent with the

local comprehensive plan, the substantially

affected person who filed the ori ginal

petition with the local government may,

within 21 days, request a hearing from the

Division of Administrative Hearings, and

. . . the order of the administrative law

judge shall be a final order and shall be

appealable pursuant to s. 120.68.

20. Se ction 120.569(1), Florida Statutes, requires

agencies to notify each party or the party's attorney of any

order that affects the substantial interests of the party. The

notice is required to inform the party of any administrative

hearing that is available , the procedure that must be followed

to obtain the hearing, and the time limits that apply.

21. In this case, the DCA Determination contained the

following "Notice of Rights":

Pursuant to Section 163.3213(5)(a), Florida

Statutes, within 21 days after the date of

this determination, any substantially

affected person who filed an original

petition with a local government may request

a hearing from the Division of

Administrative Hearings, the Desoto

Building, 1230 Apalachee Parkway,

Tallahassee, Florida 3239 9 - 3060.

22. This notice informed Petitioners of the availability

of an administrative hearing at DOAH and DOAH's address for

filing a request for hearing. The notice also informed

Petitioners of the time limit that was applicable -- "21 days

after the date of this determination."

23. Deference is to be accorded an agency 's interpretation

of a statute th e agency administers and the interpretation

should be upheld when it is within the range of permissible

interpretations. Public Employees Relations Comm'n v . Dade

County Police Benevolent Ass'n. , 467 So. 2d 987 (Fla. 1985) ;

Board of Podiatric Medicine v. Florida Medical Association , 779

So. 2d 658 (Fla. 1st DCA 2001). The DCA's interpretation of

Section 163.3213(5)(a), Florida Statutes, as requiring a hearin g

to be requested within 21 days of a DCA determination, is a

permissible interpretation of the statute.

24. Petitioners knew that Section 120.569(1), Florida

Statutes, required the DCA to inform them of the applicable time

limit for filing their petition , and they admit they were

informed by the DCA that the applicable time limit was 21 days

from the date of the DCA Determination.

25. Twenty - one days from the DCA Determination at issue in

this case was January 12, 2006. Therefore, Petitioners' r equest

for a hearing filed with DOAH on January 17, 2006, was untimely.

26. The doctrine of equitable tolling has been applied to

cure an otherwise untimely petition for administrative hearing

under certain circumstances. The leading case on equitable

to lling is Machules v. Department of Administration , 523 So. 2d

1132 (Fla. 1988), which held that the doctrine applies when a

plaintiff has been misled or lulled into inaction, has in some

extraordinary way been prevented from asserting his rights, or

has ti mely filed in the wrong forum. Id. at 1134.

27. Petitioners do not claim, and there are no facts in

the record to support a claim, that Petitioners have in some

extraordinary way been prevented from asserting their rights, or

that they timely filed their petition in the wrong forum.

Equitable tolling, if applicable at all in this case, must be

based on Petitioners' having been misled or lulled into inaction

by the statements made to Petitioner Brown by Mr. Williams.

28. Respondents argue that the doctri ne of equitable

tolling is not applicable when the prospective petitioner was

not misled or lulled into inaction by an adversarial party, but

by a "facilitating agency" such as DOAH. This argument is not

persuasive, because it was explained in Machules th at the

doctrine focuses on the plaintiff's excusable ignorance and the

lack of prejudice to defendant. Id. The doctrine does not

focus on the misconduct of the defendant. Furthermore,

Respondents' argument is contradicted by the applicability of

equitab le tolling when a petition is timely filed in the wrong

forum, which involves no fault of an adversarial party.

29. The court in Machules ruled that lack of prejudice to

the defendant is an important consideration in determining

whether the doctrine of equ itable tolling should be applied.

Id. No cognizable prejudice was shown by Respondents in this

case. The prejudice that Respondents claim they would suffer if

the untimeliness of the petition were excused -- the time and

expense of litigating issues raise d in the petition -- is not the

kind of prejudice that can defeat equitable tolling, because

litigating a case that would otherwise be dismissed is the

natural result of every application of equitable tolling.

30. As the parties asserting the applicability o f

equitable tolling to overcome the waiver of their right to a

hearing, Petitioners have the burden to prove by a preponderance

of the evidence the existence of factors that justify

application of the doctrine. See , e.g. , Department of

Environmental R egul ation 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); Patz v.

Department of Health , 864 So. 2d 79 (Fla. 3d DCA 2003).

31. In order to meet their burden of proof, Petitioners

must show that Mr. Williams' statements to Petitioner Brown

would have misled or lulled a reasonable person into inaction.

In this case, Petitioners never described precisely the

statements made by Mr. Williams upon which they relied.

Petitioner Brown stated that she called DOAH to "ensure that

[she] was interpreting the rules correctly." If she asked

Mr. Williams whether she was interpreting Rule 28 - 106.111(2)

correctly as requiring, unless otherwise provided by law, that a

request fo r hearing be filed within 21 days of receipt of

written notice of the agency decision, his confirmation of that

interpretation would not have been misleading.

32. Petitioners did not allege that Mr. Williams made an

unambiguously misleading statement to Petitioner Brown such as,

"Under Section 163.3213(5)(a), Florida Statutes, a hearing can

be requested within 21 days of your receipt of written notice of

the DCA determination"; or, "The Notice of Rights in the DCA

determination is inaccurate because Rule 28 - 106.111(2) allows

you to file the petition with DOAH within 21 days of your

receipt of written notice of the DCA determination."

33. Petitioners failed to meet their burden of proof

because they did not prove that Mr. Williams made statements

that would have misled a reasonable person to file a petition

after the deadline indicated in the applicable statute and

stated in the agency order.

34. Petitioners argue that excusable neglect, in addition

to the three factors articulated in Machules , also justifie s the

tolling of the filing deadline. However, after Section

120.569(2)(c), Florida Statutes, was amended in 1998 to state,

"A petition shall be dismissed if it . . . has been untimely

filed," excusable neglect is no longer sufficient to toll a

filing dea dline for a point of entry into an administrative

proceeding. See Patz , supra ; Whiting v. Florida Department of

Law Enforcement , 849 So. 2d 1149 (Fla. 5th DCA 2003); Cann v.

Department of Children and Family Services , 813 So. 2d 237 (Fla.

2d DCA 2002); Ja ncyn Mfg. Corp. v. Department of Health , 742

So. 2d 473 (Fla. 1st DCA 1999).

35. Moreover, the facts of this case do not demonstrate

that the untimely filing of the petition was based on reasonable

error. The DCA Determination notified Petitioners t hat they had

to request a hearing "within 21 days after the date of this

determination" and it was dated December 22, 2006. Petitioners

knowingly ignored the deadline stated in the agency decision

they intended to challenge. They knew that the date they filed

the petition was after the deadline stated in the DCA

Determination.

36. In Machules , it was stated that the doctrine of

equitable tolling protects the "reasonably prudent" plaintiff.

523 So. 2d at 1134. In this case Petitioners did not exhibit

re asonable prudence when they requested a hearing on a date they

knew was later than the deadline set forth in the Notice of

Rights in the DCA order they intended to challenge.

ORDER

Because the petition in this case was untimely filed and

the factors that could justify equitable tolling were not

proven, it is

ORDERED that the petition is hereby dismissed and DOAH's

file is closed.

DONE AND ORDERED this 6th day of April , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 April , 2006 .

ENDNOTES

1/ All references to the Florida Statutes are to Florida

Statutes (2005).

2/ All references hereafter to a "Rule" are to a current rule of

the Florida Administrative Co de.

COPIES FURNISHED :

Terrell K. Arline, Esquire

Terry K. Arline, Attorney at Law

3205 Brentwood Way

Tallahassee, Florida 32309

Diane C. Brown

241 Twin Lakes Drive

Laguna Beach, Florida 32413

Kelly A. Martinson, Esquire

Department of Community Aff airs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Gary K. Hunter, Jr., Esquire

Hopping, Green & Sams

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard , Suite 100

Tallahassee, Florida 32399 - 2100

David Jordon, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard , Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by th is Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agenc y Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The not ice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.