07-004611 Mel Bryant, Diane Bryant And Brent Mahieu vs. City Of Port St. Lucie And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, November 20, 2007.

Summary: Inaccurate statements by the applicant for a permit to Petitioners did not constitute a circumstance that would invoke equitable tolling. The Petition is dismissed as untimely.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEL AND DIANE BRYANT and )

BRENT MAHIEU, )

)

Petitioners, )

)

vs. ) Case No. 07-4611

)

CITY OF PORT ST. LUCIE and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER OF DISMISSAL

This matter came before the undersigned on Respondent City

of Port St. Lucie's (City's) Motion to Dismiss with Incorporated

Memorandum of Law (Motion) filed on October 26, 2007. A Notice

of Filing Case Law in Support of its Motion to Dismiss was also

filed by the City on November 7, 2007. By its Motion, the City

seeks to dismiss Petitioners' Amended Petition on the ground it

was untimely filed. It further argues that under the

circumstances presented here, the doctrine of equitable tolling,

upon which Petitioners rely, does not apply. (The doctrine of

equitable tolling may be used as a defense to the untimely

filing of a petition. See § 120.569(2)(c), Fla. Stat. (2006).)

A Response in opposition to the Motion was filed by Petitioners

on November 1, 2007. Respondent, Department of Environmental

Protection (Department), has not stated its position on the

Motion. However, in its Order Dismissing Petition with Leave to

Amend (Order) dated September 14, 2007, the Department dismissed

the initial Petition without prejudice to Petitioners' "filing

an amended petition which shows why the Petition dismissed in

this order should be considered timely." The basis for the

dismissal was that "the City published notice [on July 6, 2007]

in the Palm Beach Post, charging Petitioners with constructive

notice . . . , and establishing a deadline [July 20, 2007)] for

a Petition to be filed." Because the initial Petition was not

filed until July 27, 2007, or seven days after the deadline, it

was deemed to be untimely. For the reasons stated below, the

Motion should be granted and the Amended Petition dismissed,

with prejudice, on the ground the initial Petition was untimely

filed.

This case involves the proposed issuance by the Department

of two construction permits to the City, which generally

authorize the modification and expansion of the capacity of the

City's Westport Wastewater Treatment Plant from 3.93 million

gallons per day (mgd) to 6.24 mgd. (Each permit provides an

option for the City to expand its facility; the City may choose

either option.) Petitioners, who live near the plant, oppose

the expansion because of "odor emanating from the plant" in

violation of Florida Administrative Code Rule 62-600.400(2)(a).

The Order, Amended Petition, Motion, Response, and

attachments thereto reflect the following undisputed material

facts. On April 11, 2007, Petitioners met with certain City

officials, including the City Manager, who advised them that

"all permits for the expansion of the plant from its current

capacity of 3.93 mgd to the planned capacity of 6.24 mgd had

been approved and obtained and that the only permit still

required to be obtained was the operational permit which would

be obtained after construction was completed"; and "that there

was nothing that [Petitioners] could do to stop the expansion of

the plant to 6.24 mgd." Affidavits in support of this

allegation are attached to the Amended Petition. The City

denies these statements were made, but for purposes of its

Motion, has accepted this allegation as being true. On June 26,

2007, the Department issued its Notice of Intent to Issue Permit

(Notice). Although they had the right to do so, Petitioners did

not request that they receive separate written notice from the

Department when action on the City's applications was taken. On

July 6, 2007, the City published a copy of the Notice in the

Palm Beach Post , St. Lucie Edition . The Notice provided, inter

alia , that petitions challenging the issuance of the permits

must be filed within fourteen days from the date of the

publication, or by July 20, 2007; otherwise, a point of entry

would be waived. See Fla. Admin. Code R. 62-110.106(2).

Pursuant to a public records request, on July 13, 2007,

Petitioners and their counsel met with City representatives to

review certain City files relating to the facility in question.

Among the documents reviewed was a copy of the Department's

Notice dated June 26, 2007. On July 27, 2007, or fourteen days

later and seven days past the deadline in the published Notice,

Petitioners filed their initial Petition. An Amended Petition

was later filed on September 28, 2007, in response to the

Department's Order dismissing the initial pleading. The matter

was referred to the Division of Administrative Hearings on

October 8, 2007. The Motion was filed on October 26, 2007, and

Petitioners' Response thereto on November 1, 2007.

Petitioners acknowledge that their initial Petition was not

filed within fourteen days after the date of publication of the

Notice. They contend, however, that they were misled and lulled

into inaction by the statements made to them by the City Manager

on April 11, 2007. Without specifically saying so in their

Amended Petition and Response, Petitioners apparently contend

that the City Manager misled them by indicating that a

construction permit had already been issued in April 2007 when

in fact the City's applications were still pending before the

Department. They further contend that the statements made by

the City Manager create sufficient circumstances to invoke the

doctrine of equitable tolling, thereby excusing their untimely

filing. Therefore, they argue that the filing of a petition on

July 27, 2007, or fourteen days after they received actual

notice, was timely.

The doctrine of equitable tolling will be applied "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 mistakenly in the wrong forum."

Machules v. Department of Administration , 523 So. 2d 1132, 1134

(Fla. 1988). Virtually every reported administrative decision

involving this doctrine, and particularly those where affected

persons have relied on the first circumstance, has arisen out of

a claim that the agency, as opposed to another party in the

case, has misled or lulled the affected person into not filing a

request for a hearing in a timely fashion. In this case, there

is no assertion that the Department engaged in this type of

conduct; rather, Petitioners assert that the permit applicant

(the City) made the misleading statements. Without deciding the

issue, for purposes of resolving the Motion, the undersigned has

assumed that, if appropriate circumstances are present, the

doctrine can still be invoked under this unusual scenario. (In

their filings, the parties have not addressed this issue.)

When there are disputed facts concerning the applicability

of the doctrine, an evidentiary hearing on that narrow issue is

required. See , e.g. , Brown v. Department of Financial Services ,

899 So. 2d 1296 (Fla. 4th DCA 2005). Because the parties have

raised no disputed issues of material fact that require

resolution, the matter can be resolved based on the parties'

filings. (As noted above, although the City denies that the

statements were made by the City Manager, for purposes of its

Motion, it accepts them as being true.)

Assuming that the City Manager made the alleged statements,

they occurred almost three months before the Department actually

proposed to issue a permit and a notice was published by the

City in a local newspaper. Significantly, the statements did

not prevent Petitioners (or their counsel) from receiving

constructive notice of the agency's action through the

publication of the Notice on July 7, 2007. ("Receipt of notice

of agency action" means "publication of the notice in a

newspaper of general circulation in the county . . . in which

the activity will take place." Fla. Admin. Code R. 62-

110.106(2).) Nor did it bar them from contacting the Department

to request an enlargement of time to file a petition after they

received actual notice of the issuance of the permit on July 13,

2007. Fla. Admin. Code R. 62-110.106(4). Indeed, except for

the unilateral filing of the initial Petition on July 27, 2007,

nothing in the parties' filings indicate that Petitioners ever

contacted the Department for any advice regarding the pending

applications or when a petition should be filed. Given these

undisputed facts, none of the three circumstances described in

Machules exist, and as a matter of law, the doctrine of

equitable tolling does not apply. Because Petitioners received

constructive notice of the Department's action on July 7, 2007,

and were required to file their petition within fourteen days

thereafter, or by July 21, 2007, the initial Petition was

untimely filed. Fla. Admin. Code R. 62-110.106(3)(b).

Therefore, the City's Motion to Dismiss should be granted and

the Amended Petition dismissed. Because Petitioners have been

given one opportunity to amend their pleadings as to this issue,

the dismissal should be with prejudice.

In both their Response and Amended Petition, Petitioners

point out that the City's notice was published in a newspaper

(Palm Beach Post , Port St. Lucie Edition ) having a smaller

circulation than the local newspaper (Port St. Lucie News ).

They also point out that the City chose to publish only the

Department's Notice in the Palm Beach Post , while it published

numerous other City notices during that same time period in the

Port St. Lucie News , which has a much wider circulation in the

City. While Section 403.815, Florida Statutes (2006), requires

that such notices be published in a newspaper of general

circulation, there is no assertion here that the Palm Beach

Post , St. Lucie Edition is not a newspaper of general

circulation as defined by Sections 50.011 and 50.031, Florida

Statutes (2006). Therefore, while somewhat unusual, the fact

that the City chose to use one newspaper of general circulation

for one notice, and another newspaper of general circulation for

a number of other notices, does not render the notice here

insufficient or raise a factual issue requiring an evidentiary

hearing. See , e.g. , Thomas v. Department of Environmental

Protection et al. , Case No. 94-2800 (DOAH May 4, 1995, DEP June

16, 1995) 1995 Fla. ENV LEXIS 50 at *27 (there is no obligation

on the permittee to determine the "best" publication for its

notice).

Finally, Petitioners' only concern in challenging the

permit is a contention that since it began operations several

years ago, the existing plant has been emanating odors in

violation of Florida Administrative Code Rule 62-600.400(2)(a),

and that issuance of the new permit will only compound the

existing problem. (For example, the last sentence of their

Amended Petition requests that besides denying the applications

"the Department enforce compliance with [the rule].") For the

benefit of Petitioners, they are reminded that requests for

enforcement action (such as requiring a licensee to comply with

a rule) must be directed to the Department through a separate

filing, rather than raised as an issue in a licensing case.

See , e.g. , Associated Home Health Agency, Inc. v. State

Department of Health and Rehabilitative Services et al. , 453 So.

2d 104, 106 (Fla. 1st DCA 1984). The dismissal of their Amended

Petition does not bar such a filing.

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order granting the City's Motion to Dismiss and

dismissing, with prejudice, the Petitioners' Amended Petition on

the ground it was untimely filed.

DONE AND RECOMMENDED this 20th day of November, 2007, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of November, 2007.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Mel and Diane Bryant

356 Southwest Panther Trace

Port St. Lucie, Florida 34953-8201

Brent Mahieu

352 Southwest Panther Trace

Port St. Lucie, Florida 34953-8201

Theresa J. Fontana, Esquire

Assistant City Attorney

121 Southwest Port St. Lucie Boulevard

Port St. Lucie, Florida 34984-5042

Ronald W. Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order of Dismissal.

Any exceptions to this Recommended Order of Dismissal should be

filed with the agency that will render a final order in this

matter.