07-003393GM Aileen C. Alexander And James Pearsall, As Co-Trustees Of The William Alexander, Jr. Irrevocable Trust vs. City Of New Smyrna Beach Status: Closed Recommended Order on Tuesday, September 11, 2007.

Summary: The petition challenging the small scale comprehensive plan amendment was untimely because it was filed 33 days after the amendment was adopted and equitable tolling did not apply. Recommend dismissal of the petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AILEEN C. ALEXANDER and JAMES )

PEARSALL, AS CO - TRUSTEES OF THE )

WILLIAM ALEXANDER, JR. )

IRREVOCABLE TRUST, )

)

Petitioners, )

)

vs. ) Case No. 07 - 3393GM

)

CITY OF NEW SMYRNA BEACH, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This case came before Administrative Law Judge T. Kent

Wetherell, II, based upon the Motion to Dismiss filed by

Respondent on August 2, 2007 ; the response to the Orde r to Show

Cause filed by P etitioner s on August 28 , 2007 ; the amended

response to the Order to Show Cause filed by Petitioners on

August 29, 2007; and Respondent’s response t o Petitioner s ’

amended response, filed August 30, 2007 .

APPEARANCES

For Petitioner s: Wendy Shay Temple, Esquire

Dean, Mead, Egerton, Bloodworth

Capouano & Bozarth, P.A.

Post Office Box 2346

Orlando, Florida 32802 - 2346

For Respondent: Frank B. Gummey, Esquire

City Attorney Office

210 Sams Avenue

New Smyrna Be ach, Florida 32168 - 7040

ISSUE

The issue is whether Petitioners’ challenge t o the small

scale comprehensive plan amendment adopted by Respondent through

Ordinance No. 25 - 07 was timely filed.

PRELIMINARY STATEMENT

On July 23, 2007, Petitioners filed a Pet ition and Request

for Hearing (the petition) with the Division of Administrative

Hearings (DOAH). The petition was filed “pursuant to Sections

163.3187(3)(a), 120.569 and 120.57, Florida Statutes (2005),”

and challenged the small scale comprehensive plan amendment

adopted by the City of New Smyrna Beach (City) through Ordinance

No. 25 - 07 .

On August 2, 2007, the City timely filed a m otion to

d ismiss the petition . Among other thin gs, the motion argues

that the p etition should be dismissed because it was fi led more

than 30 days after the challenged plan amendment was adopted by

the City. 1 An Order to Show Cause was entered on August 7, 2007,

because it appeared from a review of the case file that the

petition was not timely filed, and Petitioners were direc ted to

“ show cause in writing as to why the petition should not be

dismissed.” The deadline for responding to the Order to Show

Cause was twice extended at Petitioners’ request.

Petitioners filed a Verified Response to Order to Show

Cause and Incorporated Memorandum of Law on August 28 , 2007 , and

an amended r esponse on August 29, 2007 . 2 The City and the

Department of Community Affairs ( Department) were given an

opportunity to file responses to Petitioners’ filing . The City

filed a response to Petitioners ’ amended response on August 30,

2007. The Department did not file a response.

The filings adequately set forth the parties’ respective

positions on the issue of law that is before the undersigned for

resolution . The filings have been given due considera tion . N o

hearing is necessary to rule on the motion to dismiss. See F la.

Admin. Code R. 28 - 106.204(1).

FINDINGS OF FACT 3

1. The City Commission passed Ordinance No. 25 - 07 by a

vote of four to zero at a public meeting held on June 20, 2007.

2. The o rdinance amends the City’ s comprehensive plan by

changing the future land use map (FLUM) des ignation of 6.923

acres of property f rom High Density Residentia l to Medium

Density Residential.

3. Petitioners own property that is subject to the FLUM

amendment . The effect of the amendment is to redu ce the

allowable density on Petitioners’ property.

4. Petitioners allege in the ir petition that the FLUM

amendment is not in compliance wit h Chapter 163, Florida

Statutes, for a variety of reasons.

5. The petit ion states that it was filed pursuant to

Section 163.3187(3)(a), Florida Statutes.

6. The p etition was faxed to DOAH for fi ling on Friday,

July 20, 2007.

7. The fax header on the petition shows that its first

page was received by DOAH at 5:17 p.m. on Ju l y 20, 2007 , and

that its last page was received by DOAH at 5: 23 p.m . on that

date.

8. The p etition was preceded by 157 - page Appendix to

Petition an d Request for Hearing (the appendix) , which included

notices, excerpts from meeting transcripts, and some o f the

other documents referred to in the p etition. 4

9. The fax header on the appendix shows that its first

page was received by D OAH at 3:09 p.m. on July 20, 2007 , 5 and

that its last page was received by DOAH at 5 :08 p.m . on that

date.

10. The pe tition and the a ppendix were docketed as having

been filed with DOAH on Monday, July 23, 2007, which was the

next regular business day after July 20, 2007.

11. Petitioners’ attorney alleges in the amended response

to the Order to Show Cause that she m ade inquir y to the DOAH

clerk’s office on July 20, 2007, and was informed that she would

be “‘safe’ in ensuring timely filing” if transmission of the

petition and the appendix was started “by 3:00 p.m.” She does

not allege what point in the day she contacted the cl erk’s

office, nor does she identify who m she spoke with.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction to hear challenges to small

scale plan amendments pursuant to Section 163.3187(3), Florida

Statutes. (2007). 6

13. Section 163.3187(3)(a), Florida Statu tes, provides in

pertinent part:

Any affected person may file a petition with

the Division of Administrative Hearings

pursuant to ss. 120.569 and 120.57 to

request a hearing to challenge the

compliance of a small scale development

amendment with this act w ithin 30 days

following the local government's adoption of

the amendment . . . .

14. Florida Administrative Code Rule 28 - 106.104 provides

in pertinent part:

(1) In construing these rules or any

order of a presiding officer, filing shall

mean received by the office of the agency

clerk during normal business hours or by the

presiding officer during the course of a

hearing.

* * *

(3) Any document received by the office

of the agency clerk after 5:00 p.m. shall be

filed as of 8:00 a.m. on the nex t regular

business day.

* * *

(7) If an agency allows documents to be

filed by electronic mail or facsimile

transmission, the following paragraphs

apply:

* * *

(b) Any party who elects to file any

document by electronic mail or facsimile

transmission shall be r e sponsible for any

delay, disruption, or interruption of the

signals and accepts the full risk that the

document may not be properly filed with the

clerk as a result.

(c) The filing date for a document

transmitted by electronic m ail or facsimile

shall be the date the agency clerk receives

the complete document.

15. Petitioners’ p etition was not “ filed ” until July 23,

2007, because it w as received by DOAH after 5:00 p.m. on

July 20, 2007. Indeed, the petition was not even trans mitted to

DOAH until after 5:00 p.m. on July 20, 2007 .

16. The appendix does not meet the requirements of a

petition for administrative hearing ; it is not even close to

meeting the requirements in Florida Administrative Code Rule 28 -

106.201(2 ), as argued by Petitioners in their amended response

to the Order to Show Cause . See also § § 120.54(5) (b)4.,

120.569(2)(c), Fla. Stat. Moreover, even if the appendix could

somehow be considered the petition in this case, it was not

timely filed since its last page was not received by DOAH until

after 5:00 p.m. on July 20, 2007.

17. Petitioners do not contest the filing date of the

petition being July 23, 2007. Instead, they argue that the

petition was timely when it was filed on that date b ecause the

ch a llenged pl an amendment was not adopted by the City for

purposes of Section 163.3187(3)(a), Florida Statutes , until some

point after June 20, 2007 . Petitioners rely primarily on Payne

v. City of Miami , 913 So. 2d 1260 ( Fla. 3d DCA 2005), in support

of this argument .

18. In Payne , the court reversed the Department’s final

order dismissing a challenge to a small scale plan amendment

adopted by the City of Miami . Id. at 1261 . The court held that

because the City of Miami ’s charter authorized the mayor to

review and veto ordinances adopted by the city commission, an

o rdinance is not adopted by the C ity of Miami until after the

expiration of the mayor’s veto period. Id. Accordingly, the

court held that 30 - day period for challenging the plan amendment

at issue in Payn e commenced upon the expiration of the mayor’s

veto period, not the passage of the amendment by the city

commission. Id.

19. Petitioner’s reliance on Payne in this case is

misplaced because, as Petitioners concede in their resp onse s to

the Order to Show Cause (at page 5) , the City’s charter and code

of ordinances do not give the City’s mayor the right to review

or veto ordinances passed by the City Commission. T he only

thing that is r equired for an ordinance to be adopted by the

City is the affirmative v ote of three members of the City

Commission. See City Code § 2 - 54 (“The affirmative vote of

three members of the city commission shall be necessary to adopt

any ordinance or resolution or motion.”). As a result, the date

that the City Commission passes t he ordinance amending the

comprehensive plan is the date that the amendment is adopted by

the City for purposes of Section 163 .3187(3)(a), Florida

Statutes.

20. Petitioners argue that i n order for an ordinance to be

adopted by the City, the ordinance must not only be passed by

the requisite vote of the City Commission but also that the vote

must be “entered upon the minutes.” In support of this

argumen t, Petitioners cite language from City Code Section 2 - 54,

which provides that “[t] he passage of all ordin ances,

resolutions and motions shall be taken by a ‘Yes’ or ‘No’ and

entered upon the minutes .” 7 This language does not establish a

condition precedent for adoption of an ordinance by the City ; it

simply describes how the passage of an ordinance is to be

memorialized in the City’s records .

21. The failure to comply with the requirements of City

Code Section 2 - 54 may render an ordinance in valid or

unenforceable . See B.M.Z. Corp. v. City of Oakland Park , 404

So. 2d 133 (Fla. 4th DCA 1981 ). However, it doe s not change the

date that the ordinance was adopted by the City. Indeed, in a

subsequent decision, it was held that the failure to properly

record the passage of an ordinance in the minutes was a

deficiency that could be corrected nunc pro tunc to the da te of

the ordinance’s adoption. 8 See B.M.Z. Corp. v. City of O akland

Park , 715 So. 2d 735, 736 n.1 (Fla. 4th DCA 1982).

22. In sum , and as a matter of law , t he challenged plan

amendment was adopted by the City for purposes of Section

163.3187(3)(a), Flor ida Statutes, on June 20, 2007, w hen the

City Commission passed Ordinance No. 25 - 07 .

23. Petitioners’ p etition was untimely because it was

filed 33 days after the date that the challenged plan amendment

was adopted by the City. See § 163.3187(3)(a), Fla. Stat.

24. Section 120.569(2)(c), Florida Statutes, provides that

a petition “shall be dismi ssed if . . . it has been untim ely

filed.” See also Whiting v. Dept. of Law Enforcement , 849

So. 2d 1149, 1151 (Fla. 5th DCA 2003) ( “Late filing is presumed

to c onstitute a waiver of rights.”).

25. The decision to wait until the afternoon of the last

day of the filing period to fax - file the petition and the

decision to fax the lengthy appendix before the petition may

constitute excusable neglect; however, it is settled that

excusable neglect does not save an untimely petition for

hearing. See Aleong v. Dept. of Business & Professional Reg. ,

2007 Fla. App. LEXIS 11414, at *4 (Fla. 4th DCA July 25, 2007);

Patz v. Dept. of Health , 864 So. 2d 79 (Fla. 3d DCA 2003);

Whiting , 849 So . 2d at 1151 ; Cann v. Dept. of Children & Family

Servs. , 813 So. 2d 237 , 239 (Fla. 2d DCA 2002).

26. The doctrine of equitable tolling can save an untimely

petition for hearing. See § 120.569(2)(c), Fla. Stat.; Cann ,

813 So. 2d at 239 .

27. The doctrine of e quitable tolling has been applied in

at least one prior case under Section 163.3187(3)(a), Florida

Statutes. See P arker v. The Estuaries Limited Liability

Company , 2002 Fla. Div. Adm. Hear. LEXIS 1465, at ¶ 101 (DOAH

Dec. 17, 2002), ado pted , Final Order No. DCA03 - GM - 012, at * 4 - 5

(DCA Feb. 27, 2003) .

28. The doctrine of e quitable tolling only applies “when

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

some extraordinary way been prevented from asserting his rights,

or has timely asserted his rights in the wrong forum.” Machules

v. Dept. of Administration , 523 So. 2d 1132, 1134 (Fla. 1988).

29. The untimely filing of a petition for hearing by

counsel is not an extraordinary circumstance that justifies the

application of the doctrine of equitable tolling. See Aleong ,

2007 Fla. App. LEXIS 11414, at *3 - 4 (citing cases).

30. This case is strikingly similar to Whiting . In that

case, the petitioner attempted to fax - file his petition for

hearing on the last day of the filing period but his attempts

were unsuccessful and he completed the fax on the following day.

See Whiting , 849 So. 2d at 1151. The court affirmed the

agency’s dismissal of the petition as untimely. Id. The court

held that the petitioner’s “mistaken belief a s to when the time

period ended” and the fact that the agency’s fax “was not

available to him at the time he wanted to fax his [petition]”

did not support a claim of equitable tolling. Id.

3 1 . Petitioners argue that they did not “elect to wait or

sit on [their] rights” and that the completion of their attempt

to fax - file the petition on July 20, 2007, distinguishes this

case from Whiting because in that case the petitioner “elected”

to fax his petition for filing on the day after the deadline

when his att empts to fax it to the agency on the day of the

deadline were unsuccessful. A similar argument -- that

equitable tolling should apply simply because the “preparation

and mailing of a petition for hearing within the 21 - day period

evidences [the petitioner’ s] intent not to waive its right to

hearing -- was expressly rejected in Environmental Resource

Associates of Florida, Inc. v. Department of General Services ,

624 So. 2d 330 (Fla. 1st DCA 1993). T he following comments made

by the court in that case are eq ually applicable here: “There

is nothing extraordinary in the failure to timely file in this

case. Quite to the contrary , the problem in this case is the

too ordinary occurrence of a party's attorney failing to meet a

filing deadline.” Id.

32 . Petitio ners’ responses to the Order to Show Cause do

not offer an explanation that, if proven, would implicate the

doctrine of equitable tolling and excuse the late - filed

p etition. Indeed, e ven if as Petitioners allege in the amended

response to the Order to Sho w Cause, Petitioners’ attorney was

told by someone in the DOAH clerk’s office that she would be

“safe” if she started transmission of the petition and appendix

“by 3:00 p.m. , ” the incontrovertible facts on the face of the

petition and the appendix show tha t the transmission of the

appendix did not start until after 3:00 p.m. and that the

transmission of the petition did not start until after 5:00 p.m.

3 3 . Where, as here, a petition is not timely filed and the

doctrine of equitable tolling does not apply , t he petition must

be dismissed. See § 120.569(2) ( c), Fla. Stat.; Whiting , supra .

3 4 . Dismissal of a petition is without prejudice “unless

it conclusively appears from the face of the petition that the

defect cannot be cured.” § 120.569(2)(c), Fla. Stat.

3 5 . The untimely filing of the petition cannot be cured

and, therefore, granting Petitioners leave to file an amend ed

p etition would serve no purpose . Cf . Kalmanson v. Lockett , 848

So. 2d 374, 381 (Fla. 5th DCA 2003) (plaintiff need not be given

an oppor tunity to amend complaint if amendment would be futile).

3 6 . In light of this ruling, it is not necessary to

address the City’s altern a tive argument s in its motion to

dismiss.

3 7 . A final order of dismissal will need to be issued by

the Department to d ispose of this case because DOAH does not

have fin al order authority in proceedings under Section

163.3187, Florida Statutes. See § 163.3187(3) (b) , Fla. Stat.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law , it is

RECOMME NDED that the Department issue a fina l order

dismissing with prejudice Petitioners’ untimely challenge to the

small scale comprehensive plan amendment adopted by the City

through Ordinance No. 25 - 07.

DONE AND ENTERED this 11th day of September , 2007, in

T allahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 2 78 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September, 2007 .

ENDNOT ES

1 / The motion also argue s that the petition should be dismissed

because it was filed by an attorney who, at the time, was not

eligible to practice law in Florida and because Petitioners

“made their election of remedies” by initiating three circuit

court proceedings related to the matters at issue in this cas e.

2 / The amended response was e - filed with DOAH on August 29,

2007 , and t he original document was also mailed to DOAH. The

original was received by DOAH and f iled on September 6, 2007.

The City filed a motion to strike the amended response that was

fi led on September 6, 2007. The motion is denied because that

document is merely a copy of the previously - filed amended

response.

3 / These “findings” are based upon the allegations in the

petition, as supplemented by the Petitioners’ response s to the

Orde r to Show Cause. All of the relevant, well - pled factual

allegations in those documents must be accepted as true at this

stage of the proceeding. See St. Francis Parkside Lodge of

Tampa Bay v. Dept. of Health & Rehabilitative Servs. , 486 So.

32, 34 (Fla. 1st DCA 1986).

4 / The a ppendix does not include a copy of the challenged plan

amendment or Ordinance No. 25 - 07 through which the amendment was

adopted, and those documents were not attached as exhibits to

the petition as alleged in the petition. The app endix does

include a copy of Ordinance No. 26 - 07, but that is a rezoning

ordinance not an amendment to the City’s comprehensive plan.

5 / Petitioners allege in the ir amended response to the Order to

S how C ause that “Petitioners began transmission of its [ sic]

Appendix and Request for Hearing prior to 3:00 p.m.” That

allegation need not be accepted as true because it is

conclusively shown to be false based upon the information

reflected on the face of first page of the appendix.

Specifically, that page co ntains fax headers showing that it was

transmitted from “Dean Mead Orlando” at 3:05 p.m. and that it

was received by DOAH at 3:09 p.m.

6 / A ll statutory references in this Recommended Order of

Dismissal are to the 2007 version of the Florida Statutes unle ss

otherwise indicated.

7 / Similar language is included in Section 166.041(4) and (5),

Florida Statutes, which provide in pertinent part :

(4) A majority of the members of the

governing body shall constitute a quorum. An

affirmative vote of a majority of a quorum

present is necessary to enact any ordinance

or adopt any resolution . . . . On final

passage, the vote of each member of the

governing body voting shall be entered on

the official re cord of the meeting . . . .

(5) Every ordinance or resolu tion shall,

upon its final passage, be recorded in a

book kept for that purpose and shall be

signed by the presiding officer and the

clerk of the governing body.

8 / In this case, it is undisputed that the City memorialized the

passage of Ordinance No. 25 - 07 in its records pursuant to City

Code Section 2 - 54 , but Petitioners allege that the City did not

do so until some point after June 20, 2007.

COPIES FURNISHED :

Thomas Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 10 0

Tallahassee, Florida 32399 - 2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Frank B. Gummey, Esquire

City Attorney Office

210 Sams Avenue

New Smyrna Beach, Florida 32168 - 7040

Wendy Shay Temple, Esquire

Dean, Mead, Egerton, Bloodworth

Capouano & Bozarth, P.A.

Post Office Box 2346

Orlando, Florida 32802 - 2346

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.