13-001853 Michael And Cathy Larosa vs. Perry Funk And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, September 12, 2013.

Summary: Petitioners failed to prove statements were made to them by a Department employee that justify application of the doctrine of equitable tolling to excuse their late-filed petition for hearing.

Case No. 13-1853

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL AND CATHY LAROSA,

Petitioners,

vs.

PERRY FUNK AND DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

RECOMMENDED ORDER OF DISMISSAL

Respondents.

/

This matter was heard on July 30, 2013, by video-

teleconference at sites in Port St. Lucie and Tallahassee,

Florida, before Bram D. E. Canter, an Administrative Law Judge of

the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioners Michael and Cathy Larosa:

Andrew J. Baumann, Esquire

Lewis, Longman & Walker, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401-4327

For Respondent Perry Funk:

John S. Yudin, Esquire

Guy, Yudin & Foster, LLP

55 East Ocean Boulevard

Stuart, Florida 34994-2214

For Respondent Department of Environmental Protection:

Brynna J. Ross, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue to be determined is whether Petitioners timely

filed their petition for hearing to challenge the determination

that Respondent Perry Funk’s proposed dock project is exempt from

the requirement to obtain an environmental resource permit.

PRELIMINARY STATEMENT

On March 21, 2013, the Department issued a letter to

Respondent Funk informing him of its determination that the

proposed modification of his private dock was exempt from the

requirement to obtain an environmental resource permit.

On May 14, 2013, Petitioners filed a petition for hearing to

challenge the Department’s determination. The Department

referred the petition to DOAH, but moved to dismiss the petition

as untimely. Upon the unopposed motion of the Department, the

proceeding was bifurcated to first address the issue of whether

the petition was timely filed. At the hearing on the issue of

timeliness, Petitioners presented the testimony of

Michael LaRosa. Petitioners’ Exhibits 1, 2, and 4 were admitted

into evidence. The Department presented the testimony of

Benny Luedike. Respondents’ Joint Exhibit 2 was admitted into

evidence. No witness was called by Respondent Funk.

The one-volume Transcript of the hearing was filed with

DOAH. The parties submitted proposed recommended orders which

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioners and Respondent Funk reside on adjacent

residential lots in St. Lucie County, Florida. They have

adjacent private docks on a manmade basin off of Mud Cove, which

connects to the St. Lucie River.

2. Sometime in January 2013, Michael LaRosa heard that Funk

planned to make changes to his dock. When Funk was not

forthcoming about his plans, LaRosa called the City of Port St.

Lucie, the United States Army Corps of Engineers, and was finally

directed to the Department.

3. On January 31, 2013, LaRosa had a telephone conversation

with Benny Luedike, a Department employee in its West Palm Beach

office. LaRosa asked what dock plans Funk had submitted to the

Department. Luedike checked the Department’s computer data base

and informed LaRosa that Funk had not applied for a permit or

other Department authorization to modify his dock. Luedike

discussed with LaRosa the Department’s general permitting

procedures and the procedures for challenging any future action

taken by the Department on Funk’s dock.

4. There are two key disputed facts about what Luedike told

LaRosa during their telephone conversation on January 31, 2013:

1) whether Luedike told LaRosa that the Department would notify

LaRosa, either by regular mail or electronic mail, before the

Department authorized any changes to Funk’s dock, and 2) whether

for Funk to make any changes to his dock. LaRosa says these

representations were made to him by Luedike. Luedike says they

were not.

5. Luedike is not in the Department’s Port St. Lucie

office, which is the office that is responsible for reviewing and

taking agency action on proposed activities in St. Lucie County

like Funk’s proposed dock modification. Luedike is in the

Department’s West Palm Beach office. This fact supports

Luedike’s testimony that he provided general permitting

information to LaRosa, and not information about what Luedike

himself would do if Funk submitted a permit application or other

information to the Department’s Port St. Lucie office.

6. Luedike’s testimony that he did not tell LaRosa that

LaRosa would have to sign off on the Funk project is supported by

the fact that no permit application or dock project plans had

been submitted yet by Funk. Although the agreement of an

adjacent riparian landowner is sometimes required when a proposed

dock will encroach within an adjacent landowner’s riparian lines,

as determined by the Department, Luedike had no project plans or

information about riparian lines that would allow him to know or

speculate about whether Funk’s proposed project might encroach

within LaRosa’s riparian lines.

7. If the conversation on January 31, 2013, included a

discussion of the Department rule that requires an adjacent

riparian landowner’s agreement to allow encroachment of riparian

lines, it would account for how LaRosa got the idea that his

sign-off was needed. Nevertheless, even assuming that this

subject was discussed, Luedike had no basis to tell LaRosa that

his sign-off would be required in this instance because Luedike

and LaRosa did not know what Funk planned to do.

8. LaRosa may have come away from his conversation with

Luedike believing that his sign-off was required for the Funk

project, but LaRosa was mistaken. He misunderstood what Luedike

told him.

9. Petitioners state in their proposed recommended order

that “The undisputed testimony establishes that Mr. Luedike

instructed Mr. LaRosa that he could wait until ‘visually seeing’

construction on the Funk property to call back for a copy of the

permit at that time.” Although Petitioners apparently make this

statement to suggest that Luedike deprived Petitioners of the

opportunity to challenge the permit, it is inconsistent with

LaRosa’s allegation that Luedike told him the Department would

notify LaRosa before action was taken on the Funk dock project

and that LaRosa’s sign-off would be necessary.

10. How this statement by Luedike fits within the context

of his conversation with LaRosa is unknown. By itself, the

statement is insufficient to show that Luedike made an

affirmative statement to LaRosa that he could file a timely

petition for hearing after construction began on the Funk dock.

11. Michael LaRosa had no contact with the Department or

with Funk following his conversation with Luedike. Cathy LaRosa

never had contact with the Department or Funk about the dock

project.

12. On February 5, 2013, Funk filed an application with the

Department, which was assigned file number 56-0137658-003.

13. Petitioners did not make a written request to be

notified of the Funk dock project.

14. On March 21, 2013, the Department took the agency

action that Petitioners seek to challenge, determining that

Funk’s proposed project was exempt from the need to obtain an

environmental resource permit.

15. On March 28, 2013, Funk published notice of the

Department’s determination in the St. Lucie News-Tribune . The

notice stated that persons whose substantial interests are

affected by the Department’s decision must file a petition for an

administrative hearing in the Department’s Office of General

Counsel within 21 days of publication of notice or receipt of

notice, whichever occurs first.

16. Twenty-one days from the date of publication of the

notice was April 18, 2013. No petition for hearing was received

by the Department by this deadline and Funk began construction of

his dock modifications. At the time of the hearing, Funk had

installed a finger pier and four pilings.

17. Petitioners did not see the newspaper notice regarding

the Funk dock project. Michael LaRosa saw construction activity

at the Funk dock on May 13, 2013, and contacted the Department.

18. Petitioners filed their petition for hearing on May 14,

2013, one day after finding out the Department had taken action

on the Funk project, but 26 days after the deadline stated in the

newspaper notice.

CONCLUSIONS OF LAW

19. Florida Administrative Code Rule 62-110.106(3) states

that persons whose substantial interests are affected by a

Department decision and want to challenge the decision must file

a petition for hearing with the Department within 21 days of

publication of notice or receipt of notice, whichever occurs

first.

20. The only persons entitled to personal notice by mail

are each applicant, each party’s attorney of record, and each

person who has made a written request for notice of agency

action. See § 120.60(3), Fla. Stat. (2013).

21. Because Petitioners did not file their petition for

hearing within 21 days of the newspaper notice, they waived their

right to an administrative hearing unless they can prove

circumstances that entitle them to an “equitable tolling” of the

time period for filing their petition.

22. The doctrine of equitable tolling “[g]enerally has been

applied when the plaintiff has been mislead 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. Dep’t of Admin. , 523

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

23. Petitioners have the burden to prove by a preponderance

of evidence the facts entitling them to application of the

doctrine of equitable tolling.

24. Respondents advance several arguments about why

Petitioners failed to meet certain factors associated with the

doctrine discussed by the courts, such as the extent of prejudice

that would occur if the doctrine were applied. The cases

applying the doctrine of equitable tolling have not dealt with

the same facts as are involved here. A resolution of some of the

issues raised by Respondents is unnecessary to the determination

made herein and, therefore, in the interest of judicial

restraint, no conclusions are made about how the courts should

resolve those issues.

25. Petitioners’ argument for application of the doctrine

of equitable tolling in this case focuses on their claim that

they were misled or lulled into inaction by Luedike’s statements

to LaRosa during their conversation on January 31, 2013. As

found above, the Department did not mislead or lull Petitioners

into inaction. The untimely filing was due to LaRosa’s

misunderstanding of what he was told by Luedike.

26. Petitioners failed to prove facts necessary to

establish their right to equitable tolling. Their petition was

untimely.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a Final Order dismissing the Petitioners’ petition for

administrative hearing.

DONE AND ENTERED this 12th day of September, 2013, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of September, 2013.

COPIES FURNISHED:

Brynna J. Ross, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Andrew J. Baumann, Esquire

Lewis, Longman & Walker, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401-4327

John S. Yudin, Esquire

Guy, Yudin & Foster, LLP

55 East Ocean Boulevard

Stuart, Florida 34994-2214

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

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 of Dismissal.

Any exceptions to this Recommended Order of Dismissal should be

filed with the agency that will issue the Final Order in this

case.