10-009417 Jerry Potter vs. Ira Ellenthal, Judith Ellenthal, And Department Of Environmental Protection Status: Closed Recommended Order on Friday, October 14, 2011.

Summary: Petitioner reviewed files containing notice of agency action but failed to read the notice. The failure did not constitute excusable neglect. Petition filed years later was untimely and should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

JERRY POTTER , )

)

Petitioner , )

vs. ) Case No. 10 - 9417

)

IRA ELLENTHAL, JUDITH )

ELLENTHAL, AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION , )

)

Respondents . )

)

RECOMMENDED ORDER

The single issue of whether Petitioner Potter timely filed

his petition in this case was heard by Bram D.E. Canter,

Administrative Law Judge , in a telephonic conference call on

December 9, 2010.

APPEARANCES

For Petitioner: Harry E. Geissinger, III, Esquire

Harry Geissinger Law Office

Post Office Box 2218

Palm Beach, Florida 33480

For Respondents Ira Ellenthal and Judith Ellenthal :

James Michael Porter, Esquire

James M. Porter, P.A.

1 Southeast 3rd Avenue, Suite 2950

Miami, Florida 33131

For Respondent Department of Environmental Protection:

Brynna J. Ross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard,

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

Whether the Petition for Formal Administrative Hearing that

initiated this proceeding was timely filed ?

PRELIMINARY STATEMENT

On January 3, 2011, Administrative Law Judge Canter granted

a motion for recusal filed by Petitioner Potter and the case was

transferred to Administrative Law Judge David Maloney.

The parties were unable to reach an agreement on the filing

of a transcript of the December 9, 2010, hearing. A status

conference set for the case was cancelled after Petitioner filed

an agreed - to motion for continuance of an evidentiary hearing

set for March 25, 2011. Pursuant to status reports filed by the

parties, who indicated their interest in pursuing settlement

negotiations, the case was placed in abeyance on April 11, 2011.

On June 27, 2011, the Ellenthal Respondents filed a notice

of the filing of the transcript of the December 9, 2010 ,

hearing. A n O rder was entered that the parties should file

their proposed recommended orders by the tenth day after receipt

of the transcript. The Department and the Ellenthals timely

filed their individual proposed recommended order s on July 18,

2011.

On July 26, 20 11, Mr. Geissinger filed a notice of

appearance on behalf of Petitioner Potter. On August 1, 2011,

an O rder was issued that granted Petitioner Potter leave to file

a proposed recommended order by August 10, 2011.

A P roposed R ecommended O rder filed by Pet itioner bears a

filing stamp of "[f]iled August 11, 2011 8:00 AM Division of

Administrative Hearings." The certificate of service shows that

it was served by U.S. Mail to the other parties on August 10,

2011. Petitioner's P roposed R ecommended O rder is de emed timely

filed and has been reviewed and considered prior to the issuance

of this Recommended Order.

FINDINGS OF FACT

1. On January 12, 2004, the Department of Environmental

Protection issued a letter (the "Letter of Consent") to the

Ellenthals that s tated the following: "Ira & Judith Ellenthal

are hereby authorized to proceed with the repair of

approximately 674 sq. ft. of an existing dock and install two

(2) boat lifts within the Bay of Florida." Department Ex. 7.

2. The Letter of Consent proclaimed that it constituted

"sovereign lands authorization," id. , and referenced:

Monroe County - ERP

File No. 44 - 0223322 - 001

Florida Keys Ecosystem Management Area.

Id. The Letter of Consent also shows the location of the

a ctivity it authorized as o ff shore of Lot 16, Block 6 of the

Buccaneer Point Subdivision located on Bounty Lane in Key Largo.

3 . Page 5 of the Letter of Con sent provides to parties

whose substantial interests are affect ed by the Department's

action a notice of their rights, in per tinent part, as follows:

A person whose substantial interests are

affected by the Department's action may

petition for an administrative proceeding

(hearing) under section 120.569 and 120.57

of the Florida Statutes.

* * *

In accordance with rules 28 - 106. 111(2) and

62 - 110.106(3)(a)(4), petitions for an

administrative hearing must be filed within

21 days of publication of the notice or

receipt of written notice, whichever o ccurs

first. Under rule 62 - 110. 106(4) of the

Florida Administrative Code, a person w hose

substantial interests are affected by the

Department's action may also request an

extension of time to file a petition for an

administrative hearing. The Department may

for good cause shown, grant the request for

an extension of time.

* * *

A tim ely request for an extension of time

shall toll the running of the time period

for filing a petition until the request is

acted upon. Upon motion by the requesting

party showing that the failure to file a

request for an extension of time before the

deadli ne was the result of excusable

neglect, the Department may also grant the

requested extension of time.

Id. at 5.

4. Prior to the issuance of the letter, Petitioner Potter

had not requested that the Department give him notice of the

Department's decision on the Ellenthal's application. 19.

5. Petitioner Potter's house is two houses to the south of

the Ellen th al property. The distance between the Ellenthal dock

and Mr. Potter's dock is between 130 and 131 feet by

Mr. Potter's estimation. Mr. Potter sees the Ellenthal property

on average "more than one time daily." Tr. 40.

6. Mr. Potter requested and was provided access to the

file maintained by the Department on the Ellenthal property (the

"Ellenthal File") on at least four separate occasions:

January 25, 2009; Apr il 30, 2009; April 9, 2010; and July 28,

2010.

7. The Letter of Consent should be present in the

Ellenthal File in the normal course of business. The

Department's witness, an administrative assista nt, whose

position requires her to maintain the Ellenthal File and who

provided the file to him several times had no reason to believe

that the file was not provided to him in its entirety ev ery time

he requested it. Document s that reflect agency action i n 2004,

like the Letter of Consent, remain in the agency file even when

the agency action is maintained in the Department's computer

system.

8. Nonetheless, Mr. Potter maintains that he did not see

the Letter of Consent on any of the times he reviewed th e file

until the last time, July 28, 2010 , when there is no question in

his mind that he received the "whole file," tr. 89, including

the Letter of Consent .

9. Mr. Potter's purp ose in reviewing the Ellenthal F ile

was to obtain information about riparian lines that related to

another case in whic h he was involved. H e did not examine the

file for any documents that related to anything other than the

riparian lines issue.

10. Mr. Potter recalled that on January 25, 2009 , there

was only one page in the Ell enthal File and it was not the

Letter of Consent. It was a document "from the State Bureau of

Mapping and Surveying." Tr. 27 - 2 8. On the two times in the

month of April in both 2009 and 2010 that he requested and

reviewed the Ellenthal File looking for i nformation about

riparian lines, Mr. Potter was unable to recall what documents

were in the file. On the April 9, 2010, visit to the

Department's offices, Mr. Potter copied aerial photographs from

the Ellenthal File. In answer to the question what other

documents were in the file at that time, Mr. Potter responded:

I don't recall . . . I wasn't looking for

anything other than . . . a photograph . . .

overhead riparian line drawings. That's it.

That's all I looked at. I wasn't looking at

anything with words on it .

Tr. 88 (emphasis added) .

11. On August 11, 2010, fourteen days after reviewing the

file on July 28, 2011, Mr. Potter requested an extension of time

to file a petition for an administrative hearing . The request

was granted. The O rder grant ing the extension allowed

Mr. Potter to file a petition until September 27, 2010. But the

order warned: "This Order does not constitute a determination

that the request for an extension of time is timely or that a

petition for an administrative hearing regarding Department File

No. 44 - 0223322 - 001 filed on or before September 27, 2010, is or

will be considered timely. "

12. Mr. Potter filed the petition for formal

administrative hearing on September 27, 2010, within the time

allowed by the Department's o rder granting the extension of time

for its filing. The Department filed a motion to bifurcate the

hearing so that the single issue of whether the petition is

timely or not could be considered separately from the merits of

the petition. The motion was gr anted.

CONCLUSIONS OF LAW

13 . Petitioner Potter has the burden of proving that his

petition was timely filed since its timeliness has been

challenged by the Department and the Ellenthals. See Hasselback

v. Dep't of Envtl. Prot. , Case No. 07 - 5216 (Fla. DOAH Jan. 28,

2010; Fla. DEP Mar. 12, 2010), rev. on other grounds , Hasselback

v. Dep't of Envtl . Prot. , 54 So. 3d 637 (F la. 1st DCA 2011).

14. Rule 62 - 110.106(3) (the "Department's Timeliness

Rule") governs the time for filing a petition for an

administrative proceeding to challenge a decision that

determines substantial interests. With regard to proceedings

that involve disputed issues of material fact and that do not

involve an application for a permit under chapter 403 and

re lated authorizations under section 373.427, such as this one,

the Department's Timeliness Rule states:

Time for Filing Petition.

(a) A petition in the form required by Rule

28 - 106.201 . . . 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:

* * *

4. Petitions concerning . . . other

Department actions . . . : twenty - one days.

15. "Receipt of Notice of Agency Action" is defined in the

Department's Timeliness Rule as "receipt of written notice or

publication of the notice in a newspaper of general circulation

in the county . . . in whic h the activity is to take place ,

whichever occurs first . . . ." Fla. Admin. Code R. 62 -

110 . 106(2).

16. The issue in this case, therefore, is whether

Mr. Potter received "written notice" of the Letter of Consent

when he was given the Ellenthal files to examine on the three

occasions prior to July 28, 2010. If he receive d written notice

on any of the three occasions, January 25, 2009; April 30, 2009;

or April 9, 2010; then the time for filing the petition in this

case expired long before he requested the extension of time to

file his petition , and his petition is untimely .

17. Of the four times Mr. Potter is known to have reviewed

the file, Mr. Potter recalled what was in the file twice. On

January 25, 2009, he testified that he remembered only one

document being in the file , which was not the Letter of Consent.

On Jul y 28, 2010, he testified that he received the entire file ,

including the Letter of Consent. On the other two occasions,

Mr. Potter could not remember what was in the file other than

any information he discovered with regard to riparian lines .

18. A dete rmination of whether the Letter of Consent was

in the file on any of the times that Mr. Potter examined the

file prior to July 28, 2010, requires a balancing of conflicting

evidence. The testimony of the Department's witness that the

Letter of Consent wou ld have been kept in the file at all times

in the ordinary course of the Department's business , that there

was no reason to believe that the Letter of Consent was not in

the file on any of the times it was provided to Mr. Potter,

Mr. Potter's lack of memo ry as to what was in the file on

April 30, 2009 , and April 9, 2010, and the presence of the

Letter of Consent in the file on August 28, 2010, outweigh

whatever inference might be derived from Mr. Potter's memory

that the Letter of Consent was not in the fi le on January 25,

2009 . It is, therefore, concluded that the L etter of Consent

was provided to Mr. Potter on April 30, 2009 , and on April 9,

2010.

19. Mr. Potter emphatically testified that the first time

he saw the Letter of Consent was when he examine d the Ellenthal

File on July 28, 2010. His testimony that he did not see it

until July 28, 2010, is bolstered by his testimony that on the

four occasions he was proven to have reviewed the Ellenthal

File, he was examining the files for a specific purpose . That

purpose did not require the reading of the file since it

cons isted of looking for aerial photographs or drawings of

riparian lines in the neighborhood of Bounty Lane on Key Largo.

It is concluded on the strength of Mr. Potter's testimony ,

therefore , that he did not read the words in the Letter of

Consent , whether or not he might have casual ly observed the

document while paging through the Ellenthal File and , therefore,

did not realize that a letter of consent was in the Ellenthal

File.

20. The iss ue remains whether Mr. Potter may be charged

with receipt of written notice of the Letter of Consent when he

did not read it during the occasions that the Ellenthal File ,

including the Letter of Consent , was in his hands .

21. The Ellenthals cite to cases that refer to

constructive notice and two types of actual notice: (1) express

and (2) implied . In Dep artment of La bor & Emp loyment Sec urity

v. Little , 588 So. 2d 281 (Fla. 1st DCA 1991), set aside on

other grounds , Little v. Dep artment of Labor & Emp loym ent

Security , 652 So. 2d 927 (Fla. 1st DCA 1995), the c ourt wrote:

Notice is of two kinds: actual and

constructive. Constructive notice has been

defined as notice imputed to a person not

having actual notice, for example: such as

would be imputed under th e recording

statutes to persons dealing with property

subject to those statutes. Actual notice is

also said to be of two kinds: first,

express, which includes what might be called

direct information and second, implied,

which is said to include notice inf erred

from the fact that the person had means of

knowledge, which it was his duty to use and

which he did not use, or as it is sometimes

called, implied actual knowledge.

Constructive notice is a legal inference,

while implied notice is an inference of fact

. . . . [emphasis added]

Dep't of Labor & Emp. Sec . v. Little , at 282 ( quoting from First

Fed. Sav . and Loan Ass 'n of Miami v. Fisher , 60 So . 2d 496, 499

(Fla. 1952) ) .

22. The Department's Timeliness Rule re fers to "receipt of

written notice." It is concluded that Mr. Potter received

written notice on April 30, 2009 ( and on April 9, 2010 , as well)

with receipt of the Ellenthal File and that, as in cases of

"implied actual notice," Mr. Potter was under a duty to examine

the El lenthal File to see if it contained evidence of agency

action that might substantially affect his interests .

Mr. Potter's duty to examine the file for writt en agency action

that might affec t his substantial interests flow s from the

locat ion of the Ellenthal property in the vicinity of

Mr. Potter's property, Mr. Potter's knowledge that the

Ellenthals had a dock that served the Ellenthal property , and

the very existence of a Department file that related to the

Ellenthal property. In order to protect his interests that

might be substantially affected by Department action with regard

to the Ellenthal property, Mr. Potter, once he had been given

the Ellenthal File, was obliged to examine the file for

documents related to agency action. It is not excusable neglect

that he did not read the file or the words in the file because

his purpose was limited to ascertaining whether the file

contained drawings or aerial photographs related to riparian

lines.

23. Mr. Potter's request for an extension of time to file

a petition for administrative hearing was made long after the

expiration of the twenty - one day period for filing such a

petition.

24. Mr. Potter's petition, filed after the expiration of

the time for filing a petition (or a request for an e xtension of

time to file such a petition), was untimely. He waived,

therefore, his right to an administrative hearing on the Letter

of Consent. See Fla. Admin. Code R. 62 - 110 . 106(3)(b).

RECOMMENDATION

Based on the foregoing F indings of F act and Conclusions of

Law, it is recommended that the Department enter a Final Order

that dismisses the Petition for Formal Adminis trative Hearing

that initiated this case.

DONE AND ENTERED this 14th day of October, 2011 in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

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 14th day of October , 2011 .

C OPIES FURNISHED :

Brynna J. Ross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard,

Mail Station 35

Tallahassee, Florida 32399 - 3000

James Michael Porter, Esquire

James M. Porter, P.A.

1 Southeast 3rd Avenue, Suite 2950

Miami, Florida 33131

Harry E. Geissinger, III, Esquire

Harry Geissinger Law Office

Post Office Box 2218

Palm Beach, Florida 33480

Lea Crandall, Agency Clerk

Departm ent of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Douglas Building , Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT 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 case.