09-001588 Conservation Alliance Of St. Lucie County, Inc., And Elaine Romano vs. Fort Pierce Utilities Authority And Department Of Environmental Protection Status: Closed Recommended Order on Friday, May 24, 2013.

Summary: The Petition for Formal Proceeding was not timely filed and Petitioners failed to prove that they had standing as substantially affected persons. Although, Conservation Alliance proved standing under section 403.412(6), the Petitions should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C ONSERVATION ALLIANCE OF )

ST. LUCIE COUNTY, INC., and )

ELAINE ROMANO, )

)

Petitioners, ) Case No. 09 - 1588

)

vs. )

)

FORT PIERCE UTILITIES AUTHORITY )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondents , )

)

and )

)

ALLIED NEW TECHNOLOGIES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a hearing was held in this case on

J anuary 23, 2013 , in Fort Pierce , Florida, before E. Gary Early,

the Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Robert N. Hartsel l , Esquire

Megan Renea Hodson , Esquire

Ro bert N. Hartsell, P.A.

Federal Tower Office Building, Suite 921

1600 South Federal Highway

Pompano Beach , Florida 33 062

For Respondent Fort Pierce Utilities Authority :

C. Anthony Cleveland , Esquire

Timothy Atkinson, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

For Respondent Department of Environmental Protection :

W. Douglas Beason, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Intervenor Allied New Technologies, Inc.:

Daniel K. Bandklayder, Esquire

Daniel K. Bandklayder, P.A.

9350 South Dixie Highway

Miami, Florida 33156

STATEMENT OF THE ISSUE

The issue to be determined by this Order is whether the

Petition for Formal Proceedings filed with the Department of

Environmental Protection (D EP ) on February 4, 2009 , was timely 1/

and, if so, whether Petitioners have standing to challenge the

D EP Ós issuance of the Minor Modification to FDEP Operation

Permit 171331 - 002 - UO for IW - 1 under 171331 - 003 - UC (the Permit

Modification ) .

PRELIMINARY STATEMENT

This case arose upon the issuance of the Permit

Modification by the D EP to Respondent, Fort Pierce Utilities

Authority ( FPUA) for the disposal of a brine waste - stream

generated by Intervenor, Allied New Technologies ( Allied ) into

FPUAÓs existing Class I industrial injection well . The Permit

Modification was issued on December 30, 2008 . Notice of the

permit issuance was published in the Fort Pierce Tribune

newspaper on January 9, 2009.

On February 4, 2009, Petitioners, Conservation Alliance of

St. Lucie County, Inc. ( C onservation Alliance) and Elsa Mill ard

filed their Petition for Formal Proc eedings with the DEP. The

Petition was amended on February 12, 2009 , to add Marion Scherer

and Elaine Romano as Petitioners. On March 4, 2009, the

Petition and Amended Petition were dismissed by the D EP , with

leave to amend. A Second Amended Petition for Formal

Proceedings was filed within the time allotted by the DEP , and

was thence forwarded to the Division of Administrative Hearings.

The proceeding was held in abeyance for a lengthy period as

issues related to the disqualification of various lawyers , law

firms , and the initial ly assigned Administrative Law Judge were

resolved. The procedural history leading to the assignment of

th is case to the undersigned and its return to active status may

be determined by re viewing the docket.

It was agreed upon by the parties that a preliminary

bifurcated hearing on the standing of the Petitioners and the

timeliness of the Petition would allow for a more efficient

utilization of effort, with there being no need for a hearin g on

the merits if it was determined that Petitioners lacked

standing, or that the Petition was not timely filed. Pursuant

to notice, a hearing to address those issues was scheduled for

January 23, 2013, in Fort Pierce, Florida.

On December 28, 2012, a N otice of Deceased Petitioner was

filed indicating that Marion Scherer had died, and that her

estate declined to proceed as a party to the litigation. On

January 7, 2013, Ms. Scherer was dismissed as a party to this

proceeding.

On January 23, 2013, Elsa M illard filed a Notice of

Voluntary Dismissal without Prejudice. Based thereon,

Ms. Millard was dismissed as a party at the commencement of the

hearing, an order that was memorialized on May 7, 2013 .

On January 21, 2013, the parties filed their Prehearing

Stipulations. Stipulations of fact have been incorporated

herein.

The preliminary hearing was held on January 23, 2013, as

scheduled. At the preliminary hearing, the parties submitted

Joint Exhibits 1 - 5, which were received in evidence .

Petitioners called as witnesses Anthony Brady, president of

the C onservation Alliance; Kevin Stin n ette, 2/ a member of the

Board of Directors of the Conservation Alliance; George Jones,

a n officer member of the Board of Directors of the Conservation

Alliance during the period of 2008 - 2009; and Elaine Tronick

Souza , formerly known as Elaine Romano . Though Ms. Souza no

longer goes by the name Elaine Romano, she will be referred to

as Elaine Romano for purposes of this Recommended Order of

Dismissal. P etitionersÓ Exhibits 1 - 4, 6, 8, 37, and 38 were

received in evidence. PetitionersÓ Exhibit 3 8 is the deposition

testimony of Lucinda Sparkman who was, at all times pertinent to

this proceeding, a paralegal for the Ruden McClosky law firm

(Ruden McClosky) . Ms. SparkmanÓs deposition transcript has been

accepted and considered as though the witness testified in

person.

FPUA called as its witness Dr. Robert Maliva , who was

accepted as an expert in hydrogeology, sedimentary geology, and

underground injection control (UIC) operations . Respondent Ós

Exhibits 2, 3, 10B, and 21 were received in evidence.

RespondentÓs Exhibit 21 is the deposition testimony of Ronald H.

Noble who was, at all times pertinent to this proceeding, a n

attorney with the Fowler, White, Bog gs l aw firm. M r. NobleÓs

deposition transcript has been accepted and considered as though

the witness testified in person.

Allied presented its case in conjunction with that of FPUA,

and did not independently call any witnesses or move any

exhibits into evidence .

The D EP did not call any witnesses or move any exhibits

into evidence.

Official recognition was taken of the Petition for Formal

Proceedings, the Amended Petition for Formal Proceedings, and

the Second Amended Petition for Formal Proceeding s.

The three - volume Transcript was filed on February 20, 2013.

After two unopposed extensions of time for filing post - hearing

submittals were requested and granted, t he parties filed their

p roposed o rders, which have been considered in the preparation

of this Recommended Order of Dismissal .

FINDINGS OF FACT

The Parties

1. The Conservation Alliance is a Florida not - for - profit

corporation in good - standing, with its corporate offices

currently located at 5608 Eagle Drive, Fort Pierce, Florida .

The Conservation Alliance has approximately 200 members.

2. Elaine Romano is a resident of St. Lucie County,

Florida.

3 . The D EP is an agency of the State of Florida having

jurisdiction for permitting UIC facilities and the waste - streams

being dischar ge d t o such facilities, pursuant to c hapter 403,

Florida Statutes , and the rules promulgated thereunder .

Pursuant to that authority, the DEP issued the Permit

Modification that is the subject of this proceeding.

4. FPUA provides utility service to the City of Fort

Pierce, Florida. FPU A owns and operates a Class I industrial

injection well (IW - 1) , discharges to which are the subject of

the Permit Modification .

5 . Allied owns and operates a chlorine bleach

manufacturing facility which produces a brine waste - stream that

is proposed for disposal to IW - 1 .

Issuance of the Permit Modification

6 . On December 19, 2008, the DEP issued a Notice of

Permit, Permit Number 171331 - 002 - UO (FPUA operation permit),

which authorized the operation of IW - 1 at the Gahn w a ste water

treatment plant . The Gahn wastewater treatment plant and IW - 1

are owned and operated by the FPUA. The FPUA operation permit

authorized the disposal of concentrate and water treatment by -

product from FPUAÓs reverse - osmosis water facility at a

permitted rate of 2.8 million gallons per day.

7 . FPUA also owns and operates water production wells that

serve the City of Fort Pierce potable water supply system. IW - 1

was constructed within 500 feet of three of the FPUA production

wells, which requir ed FPUA to obtain a variance from setback

requirements.

8 . On July 17, 2008, prior to the issuance of the FPUA

operation permit, Allied submitted an application for a major

modification of the FPU A operation permit. The application

proposed the disposal to IW - 1 of up to 21,600 gallons per day of

a brine waste - stream that is a by - product of the production of

chlorine bleach . The application cover letter provides that

Ð[w]hile we have been notified that this project is only a Minor

Permit Modification, we feel by submitting for a Major Permit

Modification that the Department will have the ability to review

the application and downgrade the application to a Minor Permit

Modification, if needed.Ñ

9 . On December 30, 2008, the DEP issued the Permit

Modificat ion as a minor modification of the FPUA operation

p ermit . The Permit Modification allowed a maximum of 21,600

gallons of brine to be received at the FPUA facility and

disposed of in IW - 1.

Notice of the Permit Modification

10 . On or about September 12, 2008, a paralegal for Ruden

McClosky, Lucinda Sparkman, requested information from the DEP

regarding the procedure for receiving notification of permit

applications and DEP action thereon . Her request was

subsequently refined to request notice regarding two permits,

those being Ðinjection Well Construction, application #171331 -

003,Ñ and the other being ÐWater - Industrial Wastewater,

application #FLA017460 - 004.Ñ DEP File No. 171331 - 003 is that

pertaining to the Permit Modification.

11 . At the time of the request, Ruden McClosky represent ed

Odyssey Manufacturing Company (Odyssey), an economic competitor

of Allied. 3 /

12 . On September 24, 2008, Ms. Sparkman asked to be Ðput

on the dist ribution list for the URIC permit for Fort Pierce.Ñ

13 . From September 24, 2008 through December 15, 2008,

Ms. Sparkman made periodic requests for information, and

received periodic updates from the DEP.

14 . On December 19, 2008, the DEP sent Ms. Spa rkman an e -

mail indicating that the FPUA operation permit had been issued,

and later that same day sent Ms. Sparkman an electronic copy of

the permit.

15 . On December 19, 2008, Ruden McClosky made a public

records request to FPUA for, among other items , records

pertaining to the disposal of brine to the Gahn Water Plant

underground injection well, and any agreements between FPUA and

Allied regarding the disposal of brine. The request was made on

behalf of Florida Tire Recycling, Inc. (Florida Tire).

16 . On December 22, the DEP sent Ms. Spar k man a copy of

the notice of intent for the FPUA operation permit.

17 . There is no record evidence of further communication

or inquiry between Ruden McCl o sky and the DEP from December 22 ,

2008 to January 14 , 2009 .

18 . On January 9, 2009, notice of the Permit Modification

was published in the Fort Pierce Tribune. The notice was

prepared and p ublication arranged by counsel for Allied.

19 . The published notice provides the information required

by rule 62 - 110.1 06(7)(d), and stated that any challenge to the

Permit Modification was required to be received by DEP within 14

days of publication or, for persons that requested actual

notice, within 14 days of receipt of such actual notice.

20 . On January 14, 2009, Ms. Sparkman called her contact

person at the DEP to inquire about the Permit Modification .

That call was not returned.

21 . On January 21, 2009, Ms. Sparkman again called the DEP

to inquire about the Permit Modification . In response to

Ms. SparkmanÓs inquiry, the DEP sent Ms. Sparkman a n electronic

copy of the Permit Modification . Ms. Sparkman made further

inquiry on January 21, 2009 , as to whether the notice of the

Permit Modification had been published in a newspaper. On

January 22, 2009, the DEP replied that Ð[e]verything was noticed

as required.Ñ

22 . On January 22, 2009, the Fort Pierce Tribune prepared

an affidavit of publication of the notice. The affidavit of

publication was received by counsel for Allied on Janu ary 28,

2009, who sent the affidavit to the DEP by certified mail on

January 29, 2009.

Alleged Defects in the Notice of Permit Modification

23 . Petitioners have alleged a number of procedural

defects that they contend render the published notice

ineffec tive to establish a deadline of 14 days from the date of

the notice to file a challenge to the Permit Modification .

Late Proof of Publication

24 . Petitioners allege that Allied fil ed the proof of

publication with the DEP more than seven days from the date of

publication , and that delay made such publication ineffective to

establish a deadline for filing the petition. Although the

proof of publication was provided to the DEP on or shortly after

January 29, 2009, t he evidence demonstrates that Allied pr ovided

the proof of publication to the DEP immediately upon receipt

from the Fort Pierce Tribune newspaper. The delay in filing was

not within the control of Allied, or anyone else associated with

the Permit Modification.

25. As established by r ule 62 - 110.106(9), proof of

publication is required by the DEP to provide assurance to the

DEP that required notice has, in fact, been published , with the

sanction being the delay or denial of the permit . The rule does

not suggest that a delay in providing proo f of publication to

the DEP serves to alter or extend the time for filing a

petition.

26. There is little case law construing the effect of a

delay in providing proof of publication on the petition rights

of a person challenging the proposed agency act ion. However,

the undersigned agrees with, and adopts, the following analysis

of the issue provided by Administrative Law Judge P. Michael

Ruff:

. . . the purpose of requiring an applicant

to publish notice of agency action is to

give substantially affect ed persons an

opportunity to participate in an

administrative proceeding. See Section

403.815, Florida Statutes, and Rule 17 -

103.150(4), Florida Administrative Code.

Consequently, the crucial element in the

Department's publication requirement is that

th e notice be published to trigger the

commencement of the time for affected

persons to request a hearing. The

requirement that proof of publication be

provided to the Department does nothing to

affect the rights of third parties, but

merely is a technical requirement which

allows the Department to determine whether a

third party has timely exercised its rights

to contest a published notice of intende d

agency action. If an applicant publishes

notice of intended agency action, but fails

to timely provide the Department with proof

of that publication, the deficiency is one

which is easily cured. No harm will occur

because the permit will not be issued until

proof of publication is received by the

Department, in any event, because of Rule

17 - 103.510(4), Florida Administrative Code.

Bio - Tech Tracking Systems, Inc. v. DepÓt of Envtl. Reg. , Case

No. 90 - 7760 , ¶32 (Fla. DOAH Apr. 3, 1991; Fla . DER May 17,

19 91) .

27. The filing of the notice be yond the seven - day period

in r ule 62 - 110.106(5) was, at most, harmless error, did not

adversely affect any rights or remedies available to

Petitioners, and does not affect the fairness of this

proceeding.

Notice Prep ared by Counsel

28. Petitioners allege that the notice was prepared by

AlliedÓs counsel, rather than the DEP, and that the notice was

therefore ineffective to establish a deadline for filing the

petition. P ublication of the notice of the Permit Modification

was not required, since it was a minor modification. Thus,

publication was at AlliedÓs option.

29. Rule 62 - 110.106(10)(a) provides, in pertinent part,

that:

Any applicant or person benefiting from the

DepartmentÓs action may elect to publish

notice of the DepartmentÓs intended or

proposed action . . . in the manner provided

by subsection (7) or (8) above. Upon

presentation of proof of publication to the

Department before final agency action, any

person who has ele cted to publish such

notice shall be entitled to the same

benefits under this rule as a person who is

required to publish notice.

The most logical construction of rule 62 - 110.106 is that the DEP

is responsible for preparing required notices pursuant to ru le

62 - 110.106(7)(c), but that non - required notices may be prepared

and published at the applicantÓs or beneficiaryÓs option without

direct DEP involvement. In this case, the notice was prepared

by an authorized agent of the corporate ÐpersonÑ that benefit ted

from the Permit Modification.

30. The more salient point regarding the preparation of

the notice is whether it contained all of the information

required by rule. The evidence demonstrates that it did, and

that the notice was sufficient to provide a meaningful and

complete point of entry to the public of the Permit Modification

and the rights attendant thereto.

31. T he fact that the notice was prepared by Allied Ós

counsel was, at most, harmless error, did not adversely affect

any rights or remedi es available to Petitioners, and does not

affect the fairness of this proceeding.

Lack of Actual Notice

32. Petitioners allege error in the notice process because

actual notice of the Permit Modification was not provided to

Petitioners. The basis for the alleged deficiency was that Mr.

Stinnette had, in 2003, asked to be placed on the DEP Ós UIC

mailing list , but did not receive the notice of the Permit

Modification .

33. Rule 62 - 110.106(2) provides that published notice

establishes the point of entry for the public to challenge

proposed agency action Ðexcept for persons entitled to written

notice personally or by mail under Section 120.60(3), Florida

Statutes, or any other statute.Ñ Section 120.60(3 ) provides

that a notice of proposed agency action shall be mailed Ðto each

person who has made a written request for notice of agency

action.Ñ

34. The preponderance of the evidence demonstrates that

Mr. Stinnette was acting solely as an agent of India n

Riverkeeper when he requested to be placed on the UIC mailing

list. He was not requesting notices in his personal capacity,

or as an agent of the Conservation Alliance or Ms. Romano.

Thus, Indian Riverkeeper was entitled to notice of the Permit

Modific ation . Indian Riverkeeper is not a party to this

proceeding. The undersigned is not willing to attribute a

request for actual notice to any person other than the person

requesting such notice.

35. The DEPÓs failure to provide written notice of the

Permit Modification to Indian Riverkeeper did not adversely

affect any rights or remedies available to the Conservation

Alliance or Ms. Romano, and does not affect the fairness of this

proceeding.

Lack of Information Pursuant to R ule 62 - 528.315(7)

36 . Finally, Petitioners argue that the published notice

was ineffective because it did not include the name, address,

and telephone number of a DEP contact person , citing rule 62 -

528.315(7)(d). The provision cited by Petitioners in volve s DEP

notices that are required when the DEP has prepared a draft

permit, draft consent order, or has scheduled a public meeting

as identified in rule 62 - 528.315(1) .

37. The notice require ment in rule 62 - 528.315(7) does not

apply to a notice of pr oposed agency action , which is governed

by rule 62 - 5 2 8.315(10) , and which provides that :

Ð[a]fter the conclusion of the public

comment period described in Rule 62 - 528.321,

F.A.C., and after the conclusion of a public

meeting (if any) described in Rule 62 -

528.325, F.A.C., the applicant shall publish

public notice of the proposed agency action

including the availability of an

administrative hearing under Sections

120.569 and 120.57, F.S. This public notice

shall follow the procedure described in

subsection 62 - 110.106(7), F.A.C. (emphasis

added).

The published notice of the Permit Modification was consistent

with the notice described in rule 62 - 110.106(7) , and therefore

complied with rule 62 - 5 2 8.315 (10) .

38 . For the reasons set forth herein, there were no

defects in the published notice of proposed agency action that

serve to minimize the effect of that published notice on the

time for filing a petition challenging the Permit Modification ,

that adversely affect any rights or remedies available to the

Con servation Alliance or Ms. Romano, or that affect the fairness

of this proceeding .

R epresentation of Petitioners by Ruden McClosky

39 . Petitioners were not represented by Ruden McClosky at

the time Ruden McClosky requested actual notice of any DEP

agency action regarding FPUA.

40 . Petitioners were not represented by Ruden McClosky at

the time Ruden McClosky requested actual notice of any DEP

agency action regarding A llied.

41 . The parties stipulated that an attorney - client

relationship was formed between the Petitioners and Ruden

McClosky on or after January 1, 2009. No further specificity

was stipulated.

42 . On February 3, 2009, Ruden McClosky sent an engagement

letter to the Conservation Alliance regarding governmental and

administrativ e challenges to the Permit Modification . The

engagement was accepted by Mr. Stinnette on behalf of the

Conservation Alliance on February 4, 2009. The Petition for

Formal Proceedings, which named the Conservation Alliance as a

party, was filed with the DE P on February 4, 2009.

43 . On February 10, 2009, Ruden McClosky sent an

engagement letter to Ms. Romano regarding governmental and

administrative challenges to the Permit Modification . There is

no evidence that the engagement was accepted by Ms. Romano .

Ms. Romano testified that she has never spoken or corresponded

with anyone from Ruden McClosky, and had no knowledge that she

was being represented by Ruden McClosky. Ms. Romano had no

input in drafting any of the petitions filed on her behalf, and

had no recollection of having ever read the petitions. The

Amended Petition for Formal Proceedings, which named Ms. Romano

as a party, was filed with the DEP on February 12, 2009.

4 4 . Both of the Ruden McClosky engagement letters

reference an ÐOther ClientÑ that had an interest in challenging

the Permit Modification, which ÐOther ClientÑ would be

responsible for paying all fees and costs, and would be involved

in the approval of all work performed by Ruden McClosky. The

parties stipulated that the ÐOther ClientÑ was Odyssey.

45 . The date of an engagement letter is not dispositive as

to the date on which an attorney - client relationship is

established. It is, however, evidence tha t can be assessed with

other evidence to draw a conclusion as to the date that the

relationship commenced.

46 . The preponderance of the evidence demonstrates that

requests for notice made prior to January 21, 2009 , regarding

the FPUA operation permit and the Permit Modification that is

the subject of this proceeding were made on behalf of Odyssey or

Florida Tire, existing clients of Ruden McClosky .

47 . The preponderance of the evidence leads the

undersigned to find that Ruden McCloskey commenced its

re presentation of the Conservation Alliance with regard to the

instant case no earlier than January 21, 2009, the date on which

Ruden McClosky received notice that the Permit Modification had

been issued.

48 . The preponderance of the evidence leads the

un dersigned to find that Ruden McCloskey commenced its

representation of Ms. Romano with regard to the instant case

after January 21, 2009, if at all.

Filing of the Petitions

49 . T he 14 th day after publication of the notice of the

Permit Modification fell on January 23, 2009.

50 . On February 4, 2009, the initial Petition for Formal

Proceedings was filed challenging the DEP issuance of the Permit

Modification . The Petition named the Conservation Alliance as a

party.

51 . On February 12, 2009, an Amended Petition for Formal

Proceedings was filed that, among other things, added Ms. Romano

as a party .

Allegations of Standing - Conservation Alliance

52 . The Conservation Alliance is a non - profit , Florida

corporation incorporated in 1985. It has at least 100 members

that reside in St. Lucie County. It was formed for the general

purpose of protecting the Ðwater, soil, air, native flora and

fauna,Ñ and thus the environment of St. Lucie County.

53 . In the Petition for Formal Proceedings, as it has been

amended, the Conservation Alliance made specific allegations as

to how the issuance of the Permit Modification may affect its

substantial interests. Those allegations are related , first, to

the eff ect of the Permit Modification on the FPUA public water

supply that serves members of the Conservation Alliance and ,

second, to the effect of the Permit Modification on the ability

of the members to recreate and enjoy the waters of St. Lucie

County.

FPUA Water Service

54 . In its Second Amended Petition for Formal Proceedings,

the Conservation Alliance alleged that Ð[m]embers of the

Alliance own real property or otherwise reside within the

service area of FPUA, and are, in fact, serviced by FPUA.Ñ As a

r esult, the members Ðwill be adversely affected by the injection

of the Allied waste stream into IW - 1, which is located within

500 feet of three potable water supply sources, from which . . .

Romano and the AllianceÓs members are provided with potable

water ,Ñ resulting in Ða potential for those contaminants and

hazardous materials to get into PetitionersÓ source of potable

water.Ñ

55 . Mr. Brady, the Conservation AllianceÓs president, does

not receiv e water service from the FPUA.

56 . Mr. Brady did not kn ow how many members of the

Conservation Alliance received water service from the FPUA.

Persons living in unincorporated areas of Fort Pierce do not

receive potable water from the FPUA. A mailing address of ÐFort

PierceÑ does not mean that the person lives in the incorporated

City of Fort Pierce. Mr. Brady ÐassumedÑ many of the members

lived in the City of Fort Pierce , but offered no admissible,

non - hearsay evidence of any kind to suppo rt that assumption .

57 . Mr. Stin n ette testified that he was Ðconfident that we

have members that receive water from [FPUA]Ñ but was not able to

quantify the number of said members. As with Mr. Brady,

Mr. Stinnette offered no admissible, non - hearsay evi dence of any

kind to support his belief.

Recreational and Environmental Interests

58 . In its Second Amended Petition for Formal Proceedings,

the Conservation Alliance alleged that Ð . . . Romano and the

AllianceÓs members utilize and protect the waters of St. Lucie

C ounty. PetitionersÓ recreational and environmental interests

will be adversely affected if the Allied waste stream leaves the

injection well area and flows into the rivers, streams, and or

ocean. Ñ

59 . Mr. Brady understood that one member of the

Conservation Alliance , George Jones, fished in the C - 24 canal ,

although Mr. Brady had not personally fished there for 25 years.

Mr. Brady otherwise provided no evidence of the extent to which

members used or enjoyed the waters in or aro und St. Lucie

County.

60 . Mr. Sti n nette has recreated in various water bodies

that are tributaries of the Indian River Lagoon system. He

indicated that he had engaged in recreational activities in and

on the waters of St. Lucie County with ÐdozensÑ o f people over

the past 16 years, some of wh om were members of the Conservation

Alliance. There was no evidence offered as to how many of those

persons were members of the Conservation Alliance, as opposed to

members of other organizations or of no organization at all , or

whether they were current members during the period relevant to

this proceeding . Mr. Stinnette testified that the previously

mentioned Mr. Jones said that he kayaked in the waters of

St. Lucie County but , as to the recrea tional activities of other

members , testified that ÐI don't know, I don't keep up with

their day - to - day activities to that extent.Ñ

61 . Although Mr. Jones testified at the hearing, he

provided no information as to the nature or extent of his

recreational uses of the waters of St. Lucie County.

62 . The only evidence of Mr. JonesÓ use of the waters of

St. Lucie County is hearsay. Thus, the only finding that can be

made as to the recreational use of the waters of St. Lucie

County by current members of the C onservation Alliance is

limited to the recreational use by a single member,

Mr. Stinnette.

Petitioner, Elaine Romano

63 . Ms. Romano is a member of the Conservation Alliance.

The allegations regarding Ms. RomanoÓs substantial interests in

this proceedi ng were the same as those of the Conservation

Alliance as set forth above.

FPUA Water Service

64 . Ms. Romano has her primary residence at 3436 Roselawn

Boulevard, Fort Pierce, Florida. Her residence is not served by

FPUA.

65 . Ms. Romano is the executor of the estate of her

mother, Marion Scherer. The esta te owns a residence at

1903 Royal Palm Drive, Fort Pierce, Florida that is currently

vacant . That residence is served by FPUA. The estate is not a

party to this proceeding.

Recreatio nal and Environmental Interests

66 . M s. Romano attends certain meetings and functions of

the Conservation Alliance , but offered no testimony of her use

or enjoyment of any natural resources that could be affected by

the Permit Modification . In that re gard, her interest in this

case was precipitated by a desire to support her mother Ós

interest in ecology.

CONCLUSIONS OF LAW

Jurisdiction

67 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

T imeliness

Burden of Proof

68 . Petitioner s have the burden of proving that the

Petition for Formal Proceedings was timely filed since its

timeliness has been challenged by FPUA and Allied. Potter v.

Dep't of Envtl. Prot. , Case No. 10 - 9417 (Fla. DOAH Oct. 14,

2011; Fla. DEP Jan 4, 2012); Hasselback v. Dep't of Envtl.

Prot. , Case No. 07 - 5216 (Fla. DO AH Jan. 28, 2010; Fla. DEP

Mar. 12, 2010), rev. on other grounds, Hasselback v. Dep't of

Envtl. Prot. , 54 So. 3d 637 (Fla. 1st DCA 2011). 4 /

Analysis

69 . S ection 120.569(1) states, in pertinent part, that:

Each notice shall inform the recipient of

any administrative hearing or judicial

review that is available under this section,

s. 120.57, or s. 120.68; shall indicate the

procedure which must be followed to obtain

the hearing or judicial review; and shall

state the time limits which apply.

70 . Pursuant to chapter 120, persons affected by agency

action must be given a Ðclear point of entryÑ to challenge that

action. In that regard:

an agency's rules must clearly signal when

the agency's free - form decisional process is

completed or at a point when it is

appropriate for an affected party to request

formal proceedings . . . . In other words,

an agency must grant affected parties a

clear point of entry, within a specified

time after some recognizable intended agency

action to formal or informal administrative

proceedings.

Capeletti Bros. v. DepÓt of Transp. , 362 So. 2d 346, 348 (Fla.

1st DCA 1978).

71 . Rul e 62 - 110.106 , entitled Decisions Determining

Substantial Interests , provides, in pertinent part, as follows:

(2) ÐReceipt of Notice of Agency ActionÑ

Defined. As an exception to subsection 28 -

106.111(2), F.A.C., for the purpose of

determining the time for filing a petition

for hearing on any actual or proposed action

of the Department as set forth below in this

rule, Ðreceipt of notice of agency actionÑ

means either receipt of written notice or

publication of the notice in a newspaper of

general circula tion in the county or

counties in which the activity is to take

place, whichever first occurs, except for

persons entitled to written notice

personally or by mail under Section

120.60(3), Florida Statutes, or any other

statute.

* * *

(3) Time for Filing Petition.

(a) A petition shall be in the form

required by Rule 28 - 106.201 or 28 - 106.301,

F.A.C., and must be filed (received) in the

office of General Counsel of the Department

within the following number of days after

receipt of notice of agency action , as

defined in subsection (2) of this rule

above:

1. Petitions concerning Department action

or proposed action on applications for

permits under Chapter 403, Florida Statutes,

and related authorizations under Section

373.427, Florida Statutes, (except p ermits

for hazardous waste facilities): fourteen

days;

* * *

(10)(a) Any applicant or person benefiting

from the DepartmentÓs action may elect to

publish notice of the DepartmentÓs intended

or proposed action (or notice of a

proceeding on such intended action) in the

manner provided by subsection (7) or (8)

above. Upon presentation of proof of

publication to the Department before final

agency action, any person who has elected to

publish such notice shall be entitled to the

same benefits under this rule as a person

who is required to publish notice.

72 . Notice of the Permit Modification was published in the

Ft. Pierce Tribune on January 9, 2009. That notice established

a clear point of entry that met the requirements of rule 62 -

110.106. 5 /

73 . The Petition for Formal Proceeding was initially filed

on February 4, 2009, well after the January 23, 2009 , deadline

established by the notice.

74 . Petitioners argue that their time for filing the

Petition for Formal Proceeding ran from the time Ruden McClo sky

re ceived actual notice of the Permit Modification on January 21,

2009.

75 . Ruden McClosky requested notice of the Permit

Modification on behalf of existing cl ients, well before any

attorney - client relationship was formed between Ruden McClosky

and P etitioners.

76 . The notice of the Permit Modification was published

prior to any attorn ey - client relationship having been formed

between Ruden McClosky and Petitioners.

77 . At the time the notice was published, Petitioners had

not requested actual noti ce of the Permit Modification, and had

no agency relationship with any person or entity that had

requested such notice on their own behalf. Thus, the time frame

for Petitioners to file a challenge to the Permit Modification

commenced upon the publication of the notice on January 9, 2009 .

78 . The undersigned concludes that the subsequently - formed

relationship between Petitioners and Ruden McClosky did not

serve to extend PetitionersÓ time to file a challenge to the

Permit Modification that was established pursuant to the clear

point of entry provided by the published notice.

79 . Th e issue in this case of the attribution of notice

based on an attorne y - client relationship is analogous to that

addressed in Hasselback v. Fla. Dep't of Envtl. Prot. , 54 So. 3d

637 (Fla. 1st DCA 2011). The facts of that case , as set forth

in the underlying orders, 6 / are as follows:

80 . In 2000 and 2002, Mr. Hasselback was represented by a

law firm in challenges to DEP agency action regarding coastal

construction adjacent to property owned by Mr. Hasselback and

others. Duri ng the period that the attorney - client relationship

was in effect , the law firm requested, on behalf of

Mr. Hasselback and the other property owners, notice of other

permit applications that might affect their interests.

81 . The final order denying the 20 02 action was entered in

August 2003, at which time Mr. Hasselba ck a sserted the attorney -

client relationship ended . N o written evidence of the

termination existed. The law firm continued to hold itself out

as representing Mr. Hasselback and the other property owners .

82 . In 2004, the DEP issued a coastal construc tion permit

that affected Mr. HasselbacksÓs substantial interests . Pursuant

to the earlier request, t he DEP provided actual notice of the

permit to the law firm. The notice was not published.

83 . Three years after the 2004 coastal construction permit

was issued, Mr. Hasselback filed a petition, alleging that he

had n ot received notice. The administrative law judge and the

DEP determined an attorney - client relationship continued to

exist between Mr. Hasselback and the law firm at the time the

notice was received by the law firm , and therefore the notice

requested by the law firm could be attrib uted to Mr. Hasselback.

The result was the dismissal of Mr. HasselbackÓs petition as

being untimely filed.

84 . On appeal, the First D istrict Court of Appeal

determined that the 2004 written notice of the permit provided

to the law firm , pursuant to its earlier request , could not be

attributed to Mr. Hasselback because:

[t]here is also n o evidence that an

attorney - client relationship exi sted between

Hasselback and the law firm at the time of

the notice . . . . Although the law firm

requested notice of any agency action

relating to the adjacent property, that

request did not reference Hasselback.

(emphasis added) .

Hasselback v. Fla. Dep't of Envtl. Prot. , 54 So. 3d at 638.

85 . Although Hasselback differs in some respects from the

facts of this case, the general principles regarding the

establishment and effect of an agency relationship on a point of

entry to an administrative procee ding expressed in Hasselback

are applicable.

86 . Ruden McClosky did not represent Petitioners and was

not acting on behalf of Petitioners at the time it requested

notice of the Permit Modification from the DEP. Ruden McClosky

did not represent Petition ers and was not acting on behalf of

Petitioners at the time the notice of the Permit Modification

was published. The Ðclear point of entryÑ provided by the

published notice became effecti ve as to Petitioners on

January 9, 2009, and was not modified or ext ended as a result of

its subsequently - created relationship with Ruden McClosky.

87 . As set forth in the findings of fact, the alleged

deficiencies in the notice are not sufficient to invalidate the

clear point of entry, or to alter the time to bring a challenge

to the Permit Modification as established by the published

notice. Therefore, PetitionersÓ deadline for filing their

Petition was January 23, 2009.

88 . Based on the foregoing, t he Petition for Formal

Proceedings filed on February 4, 2009 , wa s untimely, and should

be dismissed .

S tanding

Burden of Proof

89 . As the persons asserting party status, Petitioners

have the burden of demonstrating the requisite standing to

initiate and maintain this proceeding. Palm Beach Cnty. Envtl.

Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla.

4th DCA 2009); Agrico Chem. Co. v. Dep't of Envtl. Reg. , 406 So.

2d 478, 482 (Fla. 2nd DCA 1981).

Standard

90 . Standing to challenge agency action is generally

determined by application of the two - pronged test for standing

in formal administrative proceedings established in the seminal

case of Agrico Chemical Corp. v. Department of Environmental

Reg ulation , 406 So. 2d 478 (Fla. 2d DCA 1981). In that case,

the Court held that:

We believe tha t before one can be considered

to have a substantial interest in the

outcome of the proceeding, he must show

1) that he will suffer an injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing and 2) that

his substantial in jury is of a type or

nature which the proceeding is designed to

protect. The first aspect of the test deals

with the degree of injury. The second deals

with the nature of the injury.

Id. at 482.

91 . Agrico was not intended as a barrier to the

partic ipation in proceedings under chapter 120 by persons who

are affected by the potential and foreseeable results of agency

action. Rather, Ð[t]he intent of Agrico was to preclude parties

from intervening in a proceeding where those parties'

substantial inter ests are totally unrelated to the issues that

are to be resolved in the administrative proceedings. Ñ Mid -

Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.

2d 794, 797 (Fla. 1st DCA 2006)(citing Gregory v. Indian River

Cnty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

92 . The standing requirement established by Agrico has

been refined, and now stands for the proposition that standing

to initiate an administrative proceeding is not dependent on

proving that the proposed agency action would vi olate applicable

law. Instead, st anding requires proof that the P etitioner has a

substantial interest and that the interest reasonably could be

affected by the proposed agency action. Whether the effect

would constitute a violation of applicable law is a separate

question. Thus, as presently applied:

Standing is Ða forward - looking conceptÑ and

Ðcannot ÒdisappearÓ based on the ultimate

outcome of the proceeding.Ñ . . . When

standing is challenged during an

administrative hearing, the petitioner must

offe r proof of the elements of standing, and

it is sufficient that the petitioner

demonstrate by such proof that his

substantial interests Ð could reasonably be

affected by . . . [the] proposed

activities.Ñ

Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl . Prot. ,

14 So. 3d at 1078(citing Peace River/Manasota Reg'l Water Supply

Auth. v. IMC Phosphates Co . , 18 So. 3d 1079, 1083 (Fla. 2nd DCA

2009) and Hamilton C nty . Bd. of Cnty. Comm'rs v. State, Dep't of

Envtl. Reg . , 587 So. 2d 1378 (Fla. 1st DCA 1991)); se e also St.

Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54

So. 3d 1051, 1055 (Fla. 5th DCA 2011) (ÐUltimately, the ALJ's

conclusion adopted by the Governing Board that there was no

proof of harm or that the harm would be offset went to the

merits of the challenge, not to standing.Ñ).

93 . The Conservation Alliance has alleged standing as an

association acting on behalf of the interests of its members. 7 /

It is well established that:

for an association to establish standing

under section 120.57(1) when acting solely

as a representative of its members, it must

demonstrate that Ða substantial number of

its members, although not necessarily a

majority, are substantially affected by the

challenged rule,Ñ that Ðthe subject matter

of the challe nged rule is within the

association's general scope of interest and

activity,Ñ and that Ðthe relief requested is

of a type appropriate for a trade

association to receive on behalf of its

members.Ñ

St. JohnÓs Riverkeeper, Inc. v. St. Johns River Water Mgmt .

Dist. , 54 So. 3d at 1054,(citing Farmworker Rights Org., Inc. v.

Dep't of HRS , 417 So.2d 753 (Fla. 1st DCA 1982)); see also

Florida Home Builders Ass'n v. Dept. of Labor & Emp. Sec. ,

412 So. 2d 351 (Fla. 1982).

94 . Although St. JohnÓs Riverkeeper, Inc. involved a rule -

challenge proceeding, its identification of the factors

necessary for an association to demonstrate standing apply with

equal force in a licensing proceeding. See Friends of the

Everglades, Inc. v. Bd. of Trs. of the Int. Impust Fund ,

595 So. 2d 186, 188 (Fla. 1st DCA 1992)(Ð To meet the

requirements of standing under the APA, an association must

demonstrate that a substantial number of its members would have

standing.Ñ).

Standing of the Conservation Alliance under Chapter 120

95 . The Conservation Alliance Articles of Incorporation

establish that it was formed to Ðprotect the water, so i l, air,

native flora and fauna, upon which all the earthÓs creatures

depend for survival.Ñ

96 . The challenge to the Permit Modification is based on

the adverse effects of Ðthe injection of the Allied waste stream

into IW - 1, which is located within 500 feet of three potable

water supply sources, from which . . . Romano and the

[C onservation ] Alliance Ós members are provided with potable

water,Ñ and on the adverse affects on ÐPetitionersÓ recreational

and environmental interests . . . if the Allied waste stream

leaves the injection well area and flows into the rivers,

streams, and or ocean.Ñ

97 . The subject matter of the challenge to the Permit

Modification is within the Conservation Alliance Ós general scope

of interest and activity. Furthermore, the relief requested ,

i.e., denial of the Permit Modification , is of a type

appropriate for an organizat ion of the nature of the

Conservation Alliance to receive on behalf of its members.

98 . The Conservation Alliance did not plead or prove that

it would suffer an injury in fact of sufficient immediacy to

entitle it to a hearing in its individual capacity . Thus, t he

remaining issue for the determination of the Conservation

Alliance Ós standing is whether a substantial number of its

members are substantially affected by the proposed Permit

Modification as alleged in the Second Amended Petition for

Formal Pr oceedings. The Conservation All iance failed to prove

this element of standing.

99 . Despite having its standing to maintain this

proceeding placed squarely at issue, the Conservation Alliance

produced no business record , service - area map, or other

admissible, non - hearsay evidence that could have established

that its members reside in the FPUA service area or are served

by the FPUA water system. Mr. BradyÓs Ð assumption Ñ a nd

Mr. StinnetteÓs ÐconfidenceÑ that there must be members who

receive water se rvice from FPUA are insufficient to support a

finding of fact on the issue . In short, despite specific

allegations in the petition that members were served by FPUA,

there was no competent, substantial evidence of any member

receiving water service from FP UA.

100 . Similarly, the Conservation Alliance offered no

competent, substantial, and non - hearsay evidence of any member,

other than Mr. Stinnette, who engaged in recreation or otherwise

used the waters of St. Lucie County. A single member is not a

Ðsubs tantial numberÑ of members in the context of the

Conservation AllianceÓs total membership of approximately 200

persons , and is insufficient to support a determination that the

Conservation Alliance has standing in this proceeding .

101 . For the reasons set forth herein, t he Conservation

Alliance failed to demonstrate that its substantial interests

would be affected by the Permit Modification , and therefore

failed to establish that it has the requisite standing under

chapter 120 to initiate and maintain t his proceeding.

Standing of the Conservation Alliance under Section 403.412(6)

102 . Section 403.412(6), provides that:

Any Florida corporation not for profit which

has at least 25 current members residing

within the county where the activity is

proposed , and which was formed for the

purpose of the protection of the

environment, fish and wildlife resources,

and protection of air and water quality, may

initiate a hearing pursuant to s. 120.569 or

s. 120.57, provided that the Florida

corporation not for pro fit was formed at

least 1 year prior to the date of the filing

of the application for a permit, license, or

authorization that is the subject of the

notice of proposed agency action.

103 . Despite this case having been pending for more than

four years, t he Conservation AllianceÓs standing under section

403.412(6) was never pled.

104 . During the course of the hearing on standing and

timeliness, standing under section 403.412(6) was raised on

several occasions at which time it was ac knowledge d that section

403.412(6) was not being asserted by the Conservation Alliance

as a basis for standing. Among the exchanges were the

following:

THE COURT: Right. All right. So

Mr. Hartsell, in terms of standing, why

don't we start with 09 - 1588, and if you want

to put your standing witnesses on to

demonstrate that they're substantially

affected or that they meet the standing

elements, and I believe 403.412, Sub (6) was

alleged as an element of standing in [09 -

1588] .

MR. HARTSELL: Okay.

MR. CLEVELAND: No, Yo ur Honor, actually in

the [09 - 1588] case, 403.412(6) is not one of

the bases and we -- Mr. Hartsell and I

discussed that and set up the stipulations

accordingly.

THE COURT: All right. Then Mr. Hartsell, put

on your standing witnesses and we'll

proceed.

M R. HARTSELL: Okay. . . 8 /

and

MR. BEASON: Your Honor, just if I could, I

don't want to restate the obvious, but I

believe at least the 09 - 1588 case is a

403.412, Subsection (6) standing --

MR. BANDKLAYDER: Negative.

MR. CLEVELAND: No, that's not true.

MR. BEASON: Then what -- I thought it was.

What is the standing issue? Because that's

going to define the scope of the relevance.

MR. BANDKLAYDER: The claim is that the

Petitioners will suffer substantial impacts.

MR. BEASON: So Sub (5)?

MR. ATKINSON: They only cite 403.412 in the

[10 - 3807] case.

MR. BEASON: My apologies.

MR. HARTSELL: Substantial interest.

MR. ATKINSON: I think that was not your

Petition, Mr. Hartsell.

MR. HARTSELL: Right. I didn't make that -- 9 /

105 . The discussions at the hearing reflected a clear

understanding of all of the parties that standing under section

403.412(6) had not been asserted in this case .

106 . Despite its failure to plead section 403.412(6) as a

basis for standing, the Conservation Alliance note s in its

Proposed Recommended Order that Ð[t]here is no reason why the

Conservation Alliance would not be granted leave to amend their

Petition to allege standing under Section 403.412(6), Florida

Statutes if it motioned this Honorable Administrative Law J udge

to do so.Ñ That statement begs the question of why such a

direct motion has not been made.

107 . It is plain that standing must be proven by the

person asserting party status. The more difficult question is

whether proof of the facts necessary to establish standing is

sufficient on its own to determine the issue, or whether the

specific statute under which standing is sought, in this

instance section 403.412(6) , must be pled. There is scant case

law directly addressing the issue .

108 . In St. Johns Riverkeeper, Inc. v. St. Johns River

Water Management District , Case No. 08 - 1316 (DOAH Jan. 12, 2009;

SJRWMD Apr. 15, 2009), Administrative Law Judge J. Lawrence

Johnston took up an ore tenus motion made at the conclusion of

the Petit ionerÓs case to conform its pe tition to the evidence,

and allow the petition t o be amended to allege standing under

section 403.412(6). After considerable discussion -- which

included recognition of the fact that Petitioner had, only days

before the heari ng, added members in Seminole County, Florida ,

to meet the requirement that there be more than 25 members in

that county -- Judge Johnston concluded that the facts necessary

to support standing under section 403.412(6) had been proven,

and granted the moti on to amend in his Recommended Order. 10 /

109 . In its Final Order, the St. Johns River Water

Management District disagreed with the concept that first

alleging 403.412(6) standing at the conclusion of a hearing

could serve to ÐinitiateÑ a proceeding , but ultimately decided

that Ðin an abundance of caution . . . the appropriate course of

action at this time is to not deny Riverkeeper standing under

section 403.412(6), F.S. The entire matter is more

appropriately addressed by the appellate court, which may review

the DistrictÓs statutory interpretation without any issue as to

substantive jurisdiction.Ñ 11 /

110 . By the time the matter was taken up on appeal, the

issue of standing under section 403.412(6) was apparently no

longer in dispute, having been ac cepted and thereupon relegated

to a footnote. St. Johns Riverkeeper, Inc. v. St. Johns River

Water Mgmt. Dist. , 54 So. 3d 1051, 1055 (Fla. 5th DCA 2011).

111 . Well - established princip le s of law regarding the

amendment of pleadings suggest that, if the f acts necessary to

support standing have been proven, it would be an abuse of

discretion to dismiss a petition based on a lack of standing.

As stated by the First District Court of Appeal:

ÐPublic policy favors the liberal amendment

of pleadings, and court s should resolve all

doubts in favor of allowing the amendment of

pleadings to allow cases to be decided on

their merit." Laurencio v. Deutsche Bank

Natust Co . , 65 So. 3d 1190, 1193 (Fla.

2d DCA 2011) (citations omitted). "As a

general rule, refusal to allow amendment of

a pleading constitutes an abuse of

discretion unless it clearly appears that

allowing the amendment would prejudice the

opposing party; the privilege to amend has

been abused; or amendment would be futile."

Bill Williams Air Conditioning & Heating,

Inc. v. Haymarket Coop. Bank , 592 So. 2d

302, 305 (Fla. 1st DCA 1991). Leave to

amend a complaint should be given freely to

allow a plaintiff to state a cause of action

"unless, of course, it is clear that a

plaintiff will not be a ble to state a cause

of action." Town of Micanopy v. Connell ,

304 So. 2d 478, 480 (Fla. 1st DCA 1974); see

also Fla. Nat'l Org. for Women, Inc. v.

State , 832 So. 2d 911, 914 (Fla. 1st DCA

2002) .

Lewis v. Morgan , 79 So. 3d 926, 930 (Fla. 1st DCA 2012) .

112 . T he undersigned finds that the elements of standing

under section 403.412(6) were proven without reliance upon any

stipulation of membership. Given the length of time that this

case has been pending, the fact that the substantive issues

relating to the Permit Modification have been well pled, and

since the case has not yet been scheduled for final hearing, the

undersigned finds no prejudice on the part of the DEP, FPUA, or

Allied that would result from an amendment of the petition by

the Conservation Alliance to plead section 403.412(6) as a basis

for standing .

113 . Given the foregoing, the undersigned agrees with the

Conservation Alliance that, had a motion been made, leave to

amend the petition to allege standing under section 403.412(6)

would have been granted. In ord er to facilitate the judicially -

recognized policy of allowing liberal amendment of pleadings,

t he undersigned is willing to ac ce pt the statement in footnote 1

of PetitionersÓ Proposed Recommended Order as an inartfully pled

motion to amend the Conservation AllianceÓs standing allegations

to include section 403.412(6) . Based thereon, the undersigned

grants the motion.

114 . Based on the findings of fact and conclusions of law

set forth herein, and subject to other issues of standi ng and

timeliness, the Conservation Alliance has demonstrated its

standing under section 403.412(6).

Standing of Elaine Romano

1 15 . Ms. Romano does not live in the service area of the

FPUA, and is not served by the FPUA .

1 16 . Ms. Romano offered no evidence that she used or

enjoyed any of the natural resources of St. Lucie County. He r

stated interest was limited to supporting her mother Ó s interest

in Ðecology.Ñ

1 17 . Ms. Romano failed to demonstrate that she would

suffer injuries in fa ct of sufficient immediacy as a result of

the Permit Modification , and therefore failed to establish that

she has the requisite standing to initiate and maintain this

proceeding.

Equitable Tolling

1 18 . Petitioners argue that the doctrine of equitable

tolling should be applied in this case to extend the time limits

for filing the otherwise untimely petition. Equitable tolling

may be raised "as a defense to the untimely filing of a

petition." § 120.569(2)(c), Fla. Stat.

1 19 . The burden is on Petitioner s to prove by a

preponderance of evidence that the doctrine of equitable tolling

applies to allow them to file a petition more than 14 days from

the publication of the notice of proposed agency action .

Steadman v. DepÓt of Mgmt. Se rvs. , Case No. 10 - 8928 (Fla. DOAH

Jan. 26, 2011; Fla. DMS Apr. 12, 2011); s ee also Dept. of Envtl.

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).

1 20 . The doctrine of equitable tolling is appli cable in

circumstances where a P etitioner has been Ðmisled or lulled into

inaction, has in some extraordinary way been prevented from

asserting his rights, or has timely asserted his rights

m istakenly in the w rong forum.Ñ Machules v. DepÓt of Admin. ,

523 So. 2d 1132, 1134 (Fla. 1988).

1 21 . The doctrine of equitable tolling is not available if

the Petitioners failed to exercise due diligence in preserving

their legal rights. See Jancyn Mfg. Corp. v. Dept. of Health ,

742 So. 2d 473, 476 (Fla. 1st DCA 1999) (finding that the

failure to seek an extension of time or to file a petition was

the result of the partyÓs own inattention, and therefore

equitable tolling did not apply where the agency did not mislead

the party).

1 22 . Petitioners failed to meet their burden of proof to

establish that equitable tolling should be applied to excuse

their late - filed petition. Allied published a notice that

constituted a clear point of entry into the administrative

process on January 9, 2009 . Neither the Conservation Alliance

nor Ms. Romano had requested actual notice, and neither w as

represented by any attorney or agent at the time the notice was

published. Petitioners failed to monitor the newspaper of

general circulation in which the notice appeared.

1 23 . Petitioners cannot rely on alleged deficiencies in

the DEP notice to Rude n McClosky because, at all times relevant,

Ruden McClosky was not counsel to Petiti oners. By the time an

attorney - client relationship was formed between Petitioners and

Ruden McClosky, Ruden McClosky knew of the issuance of the

Permit Modification . If ti me remained , 12 / Ruden McClosky could

have, with the exercise of reasonable diligence, filed a request

for an extension of time to file the petition, or filed the

petition itself. It did neither.

1 24 . There is absolutely no evidence that the DEP misl ed

or lulled Petitioners into inaction, nor did any party to this

proceeding prevent Petitioners in some extraordinary form from

asserting their rights. Rather, as was the case in

Environ mental Resource Associates v. Department of General

Services, 624 So . 2d 330, 331 (Fla. 1st DCA 1993), Ðthe problem

in this case is the too ordinary occurrence of a [party] failing

to meet a filing deadline.Ñ

1 25 . Petitioner s failed to meet their burden of proving by

a preponderance of the evidence that equitable tolling should

apply to permit them to file an untimely petition to challenge

the Permit Modification.

C onclusions

1 26 . The undersigned concludes that the Petition for

Formal Proceedin g, as amended, filed by Petitioners,

Conservation Alliance of St. Lucie County, Inc. and Elaine

Romano , was not timely .

1 27 . The undersigned concludes that Petitioners,

Conservation Alliance of St. Lucie County, Inc. and Elaine

Romano , failed to prove t hat the untimely Petition for Formal

Proceeding should nonetheless be accepted as a result of the

application of the doctrine of equitable tolling.

1 28 . The undersigned concludes that Petitioners,

Conservation Alliance of St. Lucie County, Inc. and Elaine

Romano , failed to prove that they are substantially affected by

the issuance of the Minor Modification to FDEP Operation Permit

171331 - 002 - UO for IW - 1 under 171331 - 003 - UC .

1 29 . The undersigned concludes that Petitioner,

Conservation Alliance of St. Lucie County, Inc., though it

failed to plead that it had standing pursuant to section

403.412(6) , established the facts necessary to demonstrate

standing under that statute .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED that Respondent, Department of Environmental

Protection, enter a final order dismissing the Petition for

Formal Proceeding as amended.

DONE AND ENTERED this 24th day of May , 201 3 , in

Tallahassee, Leon County, Flori da.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May , 201 3 .

ENDNOTES

1/ The February 4, 2009 Petition was amended on February 12,

2009 , to add Marion Scherer and Elaine Romano as Petitioners.

As to those new parties, the February 12, 2009 , filing date

shall be the date of their initial pleading in this matter. On

March 4, 2009, the Petition and Amended Petition were dismissed

by the D epartment , with leave to amend. The P etition was timely

amended and re - filed, and was thence forwarded to the Division

of Administrative Hearings. Since the filing of the initial

pleadings in this matter, Petitioners Marion Scherer and Elsa

Millard have, by death or voluntary dismissal, dismissed their

claims.

Under relevant authority, the date of the Amen ded Petition

for Formal Proceedings and the Second Amended Petition for

Formal Proceedings relate back to the date of filing of the

initial pleading for each of the parties, those dates being

February 4, 2009 , for the remaining original petitioner,

Conserv ation Alliance of St. Lucie County, Inc. , and

February 12, 2009 , for the remaining added petitioner, Elaine

Romano. As stated by the Third District Court of Appeal, Ð[t] he

[relate back] doctrine is to be applied liberally to achieve its

salutary ends. We have articulated the test to be whether Òthe

original pleading gives fair notice of the general fact

situation out of which the claim or defense arises.ÓÑ

(citations omitted) Flores v. Riscomp Indus. , 35 So. 3d 146,

148 (Fla. 3rd DCA 2010); see also Holley v. Innovative

Technology of Destin, Inc. , 803 So. 2d 749 (Fla. 1st DCA 2001);

Ron's Quality Towing, Inc . v. Southeastern Bank of Fl a . , 765 So.

2d 134 (Fla. 1st DCA 2000). Although the cases cited applied

Florida Rule of Civil Procedure 1.190, the p olicy of liberal

application of the doctrine applies with equal force in

proceedings under chapter 120, Florida Statutes. See

Terwilliger v. South Fla. Water Mgmt. Dist. and Fla. Power &

Light Co. , Case No. 01 - 1504, ¶122 (Fla. DOAH Feb. 27, 2002;

SFWMD Ap r. 16, 2002). The Petition for Formal Proceedings gave

fair notice of the general fact situation out of which the

challenge to the Permit arose.

Based on the foregoing, February 4, 2009 , shall be the date

by which all analysis of the timeliness of the Petition as to

the Conservation Alliance of St. Lucie County, Inc. shall be

measured , and February 12, 2009, shall be the date by which all

analysis of the timeliness of the Petition as to E laine Romano

shall be measured.

2/ Mr. Stin n ette was recalled to the stand several times to

address issues as they arose in the course of the hearing. He

was initially called as PetitionersÓ witness, and will therefore

be identified as such.

3 / Odyssey has paid the attorneyÓs fees and expenses of

litigation for each of the Petitioners in this case.

4/ There is authority for the proposition that, when notice has

not been published or provided by a means by which a date

certain may be establish ed, and the issue is the date upon which

a substantially affected person received actual notice, that

parties Ðseeking to establish waiver based on the passage of

time following action claimed as final must show that the party

affected by such action has r eceived sufficient notice to

commence the running of the time period within which review must

be sought.Ñ Henry v. DepÓt of Admin. , 431 So. 2d 677, 680 (Fla.

1st DCA 1983); see also Bryant v. DepÓt of HRS , 680 So. 2d 1144

(Fla. 3rd DCA 1996); Symons v. De pÓt of Banking and Fin. , 490

So. 2d 1322, 1323 (Fla. 1st DCA 1986); see also Terwi lliger v.

South Fla. Water M gmt. Dist. and Fla. Power and Light Co. , Case

No. 01 - 1504, ¶125 (Fla. DOAH Feb. 27, 2002; SFWMD Apr. 16,

2002)(ÐIt is concluded that, while [petit ioner] had the burden

to prove the merits of his Petition, including his standing, . .

. [respondent] had the burden to prove receipt of actual notice

more than 21 days before the filing of [petitionerÓs]

Petition.Ñ).

Notice in this case having been published, the Ðactual

noticeÑ cases are not applicable. Thus, since Petitioners seek

to avoid the effect of published notice, it is their burden to

prove the timeliness of their Petitions, filed more than 14 days

after the date of publication.

5/ As es tablished in the findings of fact herein , the notice was

not deficient i n any manner that would cause it to be

ineffective to establish a deadline for filing the petition.

However, even if the notice was deficient for reasons that were

not material, e.g., because proof of publication was provided to

the DEP more than seven days after publication of the notice, or

because the notice was prepared by counsel for Allied, the

notice conveyed the information required to establish the clear

point of entry. As st ated in Judge ErvinÓs concurring opinion:

I consider the essential facts in the

present case to be practically on all fours

with those in Lamar Advertising Co. v.

Department of Transportation , 523 So. 2d 712

(Fla. 1st DCA 1988), wherein this court held

th at although the agency's notice denying a

sign permit did not track the precise

language in the department's rule concerning

such denials, the notice "clearly informed

appellant that the application had been

denied and that appellant had the right to

reque st a 120.57 hearing within 30 days of

the date of the notice." Id . at 713. We

thereupon concluded that the applicant had

been provided a clear point of entry to

administrative review, which had been waived

by its noncompliance with the limitation

period st ated in the notice.

Environmental Resource Assocs. v. State, Dep't of Gen. Servs. ,

624 So. 2d 330, 331 - 332 (Fla. 1st DCA 1993).

6/ Hasselback v. Dep't of Envtl. Prot. , Case No. 07 - 5216 (Fla.

DOAH Jan. 28, 2010; Fla. DEP Mar. 12, 2010).

7/ Second Amended Petition, ¶100.

8 / Transcript, vol. 1, pg. 28, line 18 through pg. 29, line 7 .

9 / Transcript, vol. 1, pg. 61, line 17 through pg. 62, line 10.

10 / St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgm t .

Dist . , Case No. 08 - 1316 (DOAH Jan. 12, 2009; SJRWMD Apr. 15,

2009), Recommended Order at ¶¶106, 138 - 141.

11 / St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt.

Dist . , Case No. 08 - 1316 (DOAH Jan. 12, 2009; SJRWMD Apr . 15,

2009), Final Order at p. 9 of 72.

12/ The facts in this case indicate that the attorney - client

relationship was formed between Petitioners and Ruden McClosky

no earlier tha n January 21, 2009. It may have been formed after

that date, up to and including the February 4, 2009 , date of the

engagement letter. If the relationship was formed after the

January 23, 2009 , deadline for filing the petition, further

discussion of equitable tolling would be moot. River wood

Nursing Ctr., LLC v. Ag. for Health Care Admin. , 58 So. 3d 907,

910 - 911 (Fla. 1st DCA 2011).

COPIES FURNISHED :

W. Douglas Beason, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Daniel K. Bandklayder, Esquire

Daniel K. Bandklayder, PA

Suite 1560

9350 South Dixie Highway

Miami, Florida 33156

C. Anthony Cleveland, Esquire

Oertel, Fernandez, Cole and

Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

Elaine Romano

1409 Royal Palm Drive

Fort Pierce, Florida 34982

Conservation Alliance of St. Lucie County, Inc.

Post Office Box 12515

Fort Pierce, Florida 34979 - 2515

Robert N. Hartsell, Esquire

Robert N. Hartsell, P.A.

Suite 921

1600 South Federal Highway

Pompano Beach, Florida 33062

Megan Renea H odson, Esquire

Robert N. Hartsell, P.A.

Suite 921

1600 South Federal Highway

Pompano Beach, Florida 33062

Lea Crandall, Agency Clerk

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF R IGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from 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 cas e.