13-001219 Srqus, Llc vs. Sarasota County, City Of Longboat Key, City Of Sarasota, City Of Venice, Florida Department Of Transportation District 1, And Department Of Environmental Protection Status: Closed Recommended Order on Friday, October 18, 2013.

Summary: Petitioner's Request for Hearing was not timely filed, and the elements to support the application of the doctrine of equitable tolling were not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SRQUS, LLC,

Petitioner,

vs. Case No. 1 3 - 1219

SARASOTA COUNTY, TOWN OF

LONGBOAT KEY, CITY OF SARASOTA,

CITY OF VENICE, DEPARTMENT OF

TRANSPORTATION DISTRICT 1, AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION ,

Respondents.

/

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a n evidentiary hearing was held in this

case on October 16, 2013, by video tele conference in

Tallahassee, Florida and Sarasota , Florida, before E. Gary

Early, the Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Achim Ginsberg - Klemmt , Managing Member

Erika Ginsberg - Klemmt , Managing Member

3364 Tanglewood Drive

Sarasota, Florida 34239

For Respondent Sarasota County :

Stephen E. DeMarsh, Esquire

Alan W. Roddy, Esquire

David M. Pearce, Esquire

Office of the County Attorney

1660 Ringling Boulevard , Second Floor

Sarasota, Florida 34236

For Respondent City of Sarasota:

Michael A. Connolly, Esquire

Fournier, Connolly, Warren,

& Shamsey, P.A.

Suite 700

1 South School Avenue

Sarasota, F lorida 34237

For Respondent s City of Venice and Town of Longboat Key :

Kelly Fernandez, Esquire

David Jackson, Esquire

Persson & Cohen, P.A.

6853 Energy Court

Lakewood Ranch, F lorida 34240

For Respondent Department of Transportation :

Kathleen Patricia Toolan, Esquire

Department of Transp ortation

605 Suwannee Street, Mail Station 58

Tallahassee, F lorida 32399

For Respondent Department of Environmental Protection:

W. Douglas Beason, Esquire

Kristine Papin Morris, Esquire

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

S TATEMENT OF THE ISSUE

The issue to be determined by this Order is whether the

Request for Administrative Hearing filed by Petitioner with the

Department of Environmental Protection ( Ð DEP Ñ ) on February 15,

2013 , was timely 1/ and , if not, whether the application of the

doctrine o f equitable tolling would serve to relieve Petitioner

of the consequences of having failed to file a petition for

hearing within the time allotted by applicable notice

provisions.

PRELIMINARY STATEMENT

This case arose upon the issuance by the DEP of a renewal

of a Municipal Separate Storm Sewer System permit (the Ð MS4

PermitÑ) to Respondents Sarasota County, Town of Longboat Key,

City of Sarasota, City of Venice, and the Department of

Transportation District 1 (ÐApplicantsÑ).

The notice of proposed agency action was published in the

Sarasota Herald - Tribune, a newspaper of general circulation in

Sarasota County, on January 30, 2013 . Because the MS4 Permit

area applied to the Town of Longboat Key, and because a portion

of the Town o f Longboat Key extends across the Sarasota County

line into Manatee County, notice w a s also published in the

Bradenton Herald, a newspaper of general circulation in Manatee

County, on February 4, 2013 .

On February 15, 2013, Petitioner filed its Request for

Administrative Hearing (ÐPetitionÑ) with the DEP. The DEP

dismissed the Petition with leave to amend. There after , on or

about March 21, 2013, Petitioner filed an Amended Petition for

FLS000004 - 004 (ÐAmended PetitionÑ) . On April 8, 2013, the

Amended Pet ition was transmitted to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge.

On September 11, 2013, Sarasota County filed its Motion to

Dismiss (ÐMotionÑ), arguing that the Request for Hearing was not

timely filed, and th at the facts of this case do not warrant the

application of the doctrine of equitable tolling to excuse the

untimely filing. Rule 28 - 106.204(2) provides, in pertinent

part, that Ðmotions to dismiss the petition or request for

hearing shall be filed no lat er than 20 days after assignment of

the presiding officer, unless the motion is based upon a lack of

jurisdiction or incurable errors in the petition.Ñ The failure

to timely file a petition, if substantiated, constitutes an

incurable error in the initial Request for Administrative

Hearing. Thus, the Motion was timely.

On September 16, 2013, the undersigned entered an Order to

Show Cause directing Petitioner to show cause as to why the

Motion should not be granted, and allowing Respondents to file

memor anda on the issue.

On September 23, 2013, Petitioner filed its Response to

Sarasota CountyÓs Motion to Dismiss and Response to Order to

Show Cause. In its response, Peti ti oner argued that the

publication of notice in the Bradenton Herald created a new

point of entry for Petitioner to challenge the MS4 Permit and,

if the Petition is determined to be untimely filed, the doctrine

of equitable tolling should be applied.

On Sep tember 23, 2013, the Department of Transportation

(ÐDOTÑ) and the DEP filed separate memoranda in support of the

Motion.

The Motion was noticed for an evidentiary hearing . See Pro

Tech Monitoring, Inc. v. Dep't of Corr. , 72 So. 3d 277 , 281 - 282

(Fla. 1st DCA 2011); Hurley v. Dep't of Bus. & Prof'l Reg . , 965

So. 2d 359 (Fla. 4th DCA 2007); Nicks v. Dep't of Bus. & Prof'l

Reg. , 957 So. 2d 65, 68 (Fla. 5th DCA 2007) . The hearing was

held as scheduled on October 16, 2013 , by video telecon ference

at sites in T allahassee, Florida and Sarasota, Florida.

Sarasota County called as its witness Rene A. Janneman, the

NPDES Coordinator for Sarasota County. Sarasota CountyÓs

Exhibits 1 - 7 were received in evidence.

DEP Exhibit 1 was received in evidence . The DEP did not

call any witnesses.

Petitioner called as its witness , Christopher Wright, a

part - time consultant for Petitioner. In addition, Achim

Ginsberg - Klemmt and Erika Ginsberg - Klemmt, PetitionerÓs m anaging

m embers, testified on PetitionerÓs behal f. Petitioner Ó s

Exhibits 1, 2, 4, and 5 were received in evidence.

At the conclusion of the evidentiary hearing, the parties

were given the opportunity to submit proposed findings and

orders in accordance with s ection 120.57(1)(b), Florida

Statutes. Ea ch party waived that right. A ruling on the Motion

to Dismiss was thereupon announced from the bench, and is

memorialized in this Recommended Order of Dismissal.

FINDINGS OF FACT

The Parties

1. Petitioner , SRQUS, LLC , is an active Florida, limited -

liability corporation, and is the owner of submerged lands and

adjacent upland property contiguous to Sarasota Bay. Petitioner

is a closely held entity, the only members being Achim and Eri k a

Ginsberg - Klem m t .

2 . Respondent, Department of Environmental Pr otection , is

an agency of the State of Florida having jurisdiction for

permitting Municipal Separate Storm Sewer Systems (MS4),

including duties as a federally - approved state program for the

implementation of the Federal National Pollutant Discharge

Elimin ation System (NPDES) Program, pursuant to authority

conf erred under s ection 403.0885, Florida Statutes .

3 . Respondents, Sarasota County, City of Sarasota, City of

Venice, Town of Longboat Key, and Department of Transportation

( Ð DOT Ñ ) (collectively the Ð A pplicants Ñ ) are responsible for

certain existing stormwater point - source discharges to waters of

the state from those portions of MS4 facilities owned or

operated by one or more of the individual Applicants.

4 . T he DEP issued a notice of proposed agency action to

issue a renewal of an existing MS4 Permit to the Applicants.

5 . On January 30, 2013, Sarasota County arranged for the

notice to be published in the Sarasota Herald - Tribune, which is

a newspaper of general circulation in Sarasota County. The

notice provided as follows:

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL

PROTECTION NOTICE OF INTENT TO ISSUE PERMIT

AND REQUEST FOR ADMINISTRATIVE HEARING

The Department of Environmental Protection

gives notice of its intent to issue a permit

to Sa rasota County, 1660 Ringling Boulevard,

Sarasota, Florida 34236 within its

jurisdiction and including the following co -

permittees: Florida Department of

Transportation District One, Town of

Longboat Key, City of North Port, City of

Sarasota, and City of Ve nice, for renewal of

a Municipal Separate Storm Sewer System

[MS4] permit.

Any person whose substantial interests are

affected by the proposed permitting decision

of the Department may petition for an

administrative hearing in accordance with

Sections 120. 569 and 120.57 of the Florida

Statutes (F.S.). The petition must contain

the information set forth below and must be

filed (received) in the Department of

Environmental Protection, Office of General

Counsel, Mail Station 35, 3900 Commonwealth

Boulevard, T allahassee, Florida 32399 - 3000.

Petitions must be filed within fourteen days

of publication of this public notice or

within fourteen days of receipt of the

notice of intent, whichever occ urs first. A

petitioner must mail a copy of the petition

to the app licant at the address indicated

above, at the time of filing. The failure

of any person to file a petition [or a

request for mediation, as discussed below]

within the appropriate time period shall

constitute a waiver of that personÓs right

to request an a dministrative determination

(hearing) under Sections 120.569 and 120.57,

F.S., or to intervene in this proceeding and

participate as a party to it. Any

subsequent intervention will be only at the

discretion of the presiding officer upon the

filing of a mo tion in compliance with Rule

28 - 5.207 of the Florida Administrative Code.

A petition must contain the following

information:

(1) The name, address and telephone number

of each petitioner, the Department Permit

Number and the county in which the MS4 is

lo cated;

(2) A statement of how and when each

petitioner received notice of the

DepartmentÓs action;

(3) A statement of how each petitionerÓs

substantial interests are affected by the

DepartmentÓs action;

(4) A statement of the material facts

disputed by the petitioner, if any;

(5) A statement of facts that the

petitioner contends warrant reversal or

modification of the DepartmentÓs action;

(6) A statement of which rules or statutes

the petitioner contends require reversal or

modification of the Depa rtmentÓs action; and

(7) A statement of the relief sought by the

petitioner, stating precisely the action

that the petitioner wants the Department to

take.

Because the administrative hearing process

is designed to formulate final agency

action, the filin g of a petition means that

the final action of the Department may be

different from the position taken by it in

the notice of intent. Persons whose

substantial interests will be affected by

any such final decision of the Department on

the permit revision have the right to

petition to become a party to the

proceeding, in accordance with the

requirements set forth above.

Mediation under Section 120.573, F.S. is not

available for this proceeding.

The permit application file and supporting

data are available f or public inspection

during normal business hours, 8:00 a.m. to

5:00 p.m., Monday through Friday, except

legal holidays, at Department of

Environmental Protection, NPDES Stormwater

Section, 2600 Blair Stone Rd. Room 560,

Tallahassee, Florida 32399 - 2400, ph one

number (850) 245 - 8430.

Date of pub. January 30, 2013.

6 . Because a portion of the Town of Longboat Key extends

into Manatee County, the Town of Longboat Key arranged for the

notice to be published in the Bradento n Herald, which is a

newspaper of general circulation in Manatee County. The notice

was published on February 4, 2013. The substance of the notice,

except for the date of publication, was identical to that

published in the Sarasota Herald - Tribune.

7 . Ne ither Petitioner, nor its representatives, saw either

of the published notices prior to the filing of the Petition .

8 . On or about February 8, 2012, as a result of the filing

of a pre - hearing stipulation in related litigation involving an

Environmental R esource Permit (ÐERPÑ) issued by the Southwest

Florida Water Management District (ÐSWFWMDÑ), Petitioner became

aware of the existence of the MS4 Permit . Erika Ginsberg - Klemmt

obtained a copy of the permit online, and on Februa ry 12, 2013 ,

sent an e - mail t o employees of the DEP Ft. Myers Ó office

expressing her general concern with water quality from the

disputed stormwater outfall. She expressed her belief that

Sarasota County was in violation of the existing MS4 permit, and

request ed that the recipients of her e - mail Ð[p]lease be so kind

as to look into this matter and let us know what could be done

to prevent this unacceptable condition to continue unchecked

like it did in the past . Ñ T he e - mail d id not request any

information regarding the MS4 Permit r enewal application, nor

did it request any information regarding notices or deadlines

related to the application.

9 . On February 13, 2013, Christopher Wright, a consultant

for Petitioner, called the DEP to gather information and do some

ÐlegworkÑ relat ed to PetitionerÓs challenge to the SWFWMDÓs ERP .

The purpose of the call was to determine if information

submitted to the DEP in conjunction with the MS4 application ,

particularly drainage basin maps, could have been of use in the

SWFWMD litigation.

10 . Mr. Wright spoke with DEP employee , Heather Ritchie ,

regarding the drainage basin maps that had been submitted to the

DEP . During the course of their discussion, Ms. Ritchie advised

Mr. Wright that a Notice of Intent to issue the MS4 Permit had

been issued by the DEP. However, Ms. Ritchie did not know when

Sarasota County had published the notice or when the deadline

for challenging the proposed agency action was to run. In

short, Ms. Ritchie expressed to Mr. Wright that Ðshe didnÓt know

what the st atus of things were. Ñ The discussion then went back

to the primary substance of the call, which was watersheds and

dis charge points. Ms. Ritchie agreed to provide Mr. Wright with

an electronic copy of a drainage map from the MS4 Permit file.

11 . At 12:43 p.m. , on February 13, 2013, Ms. Ritchie sent

a map to Mr. Wright via e - mail , and indicated that Ð[i]f you

have additional questions or comments, you may call or e - mail

me.Ñ

12 . Later on the afternoon of February 13, 2013 ,

Mr. Wright decided that he should ask Ms. Ritchie for a copy of

the Notice of I ntent.

13 . At 5:59 p.m. , on February 13, 2013, after the close of

business for the day, Mr. Wright wrote to Ms. Ritchie thanking

her for her Ðrapid response to my inquiry today,Ñ and pr o viding

her with comments on various basin areas and discharge

structures. Mr. Wright concluded his e - mail by stating that Ðat

this time I would also like to request a copy of the Notice of

Intent to Issue the MS4 Permit.Ñ

14 . The next morning, February 14, 2013, Ms. Ritchie

provided Mr. Wright with the Notice of Intent to Issue the MS4

Permit as requested. Later that morning, Mr. Wright inquired as

to the time for filing a challenge to the permit. Ms. Ritchie

replied at 2:34 p.m. that afternoon that the MS4 Permit Ðwas

publicly noticed by the county on January 30th with a 14 day

window. The window closed yesterday.Ñ There is no evidence

that Ms. Ritchie had any specific information as to the date of

publication or the deadline for filing a challenge prior to that

communication with Mr. Wright.

15 . Petitioner filed the Petition on February 15, 2013.

The disputes identified in the Petition were directed

exclusively at a 46 - acre drainage basin in downtown Sarasota,

and a related discharge structure t hat discharges stormwater

from the basin to Sarasota Bay just south of the intersection of

U.S. Highway 41 and Fruitville Road. The disputed basin and

discharge point are located in Sarasota County.

CONCLUSIONS OF LAW

16 . The Division of Administrat ive Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to secti ons 120.569 and 120.57(1), Florida

Statutes (2013).

Burden of Proof

17 . It is well established that Ð[a]n agency seeking to

establish waiver based on the passage of time following action

claimed as final must show that the party affected by such

action has received sufficient notice to commence the running of

the time perio d 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. DepÓt of Banking and Fin. , 490 So. 2d 1322,

1323 (Fla. 1st DCA 1986).

18 . The notice published on January 30, 2013 , in the

Sarasota Herald - Tribune was sufficient to place a substantially

affected person in Sarasota County on notice of the DEPÓs

proposed agency action on the MS4 Permit , and of their rights to

challenge th e issuance of the MS4 Permit .

19 . Petitioner ha s the burden of proving that the Petition

was timely filed since its timeliness has been challenged by

Sarasota County . Conservation Alliance of St. Lucie C o., Inc.

v. Ft. Pierce Util. Auth . , Case No. 09 - 1588 (Fla. DOAH May 24,

2013; Potter v. Dep't of Envtl. Prot. , Case No. 10 - 9417 (Fla.

DOA H Oct. 14, 2011; Fla. DEP Jan. 4, 2012); 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 (Fla. 1st DCA 2011).

20 . Petitioner ha s the burden of proving by a

preponderance of evidence that the doctrine of equitable tolling

applies to allow it to file a petition more than 14 day s from

the publication of the notice of proposed agency action .

Conservation Alliance of St. Lucie C o., Inc. v. Ft. Pierce Util.

Aut h. , Case No. 09 - 1588 (Fla. D OAH May 24, 2013; Fla. DEP

July 9, 2013); Steadman v. DepÓt of Mgmt. Servs. , Case No. 10 -

8928 (Fla. DOAH Jan. 26, 2011; Fla. DMS Apr. 12, 2011); see 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).

Timel iness of the Petition

21 . Section 120.569(1) provides , 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

proce dure which must be followed to obtain

the hearing or judicial review; and shall

state the time limits which apply.

22 . As to the sufficiency of the notice to persons

affected by agency action to establish a "clear point of entry"

to challenge that action :

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

cl ear 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).

23 . Section 120.569(2)(c) provides, in pertinent part,

that Ð[a] petition shall be dismissed if it . . . has been

untimely filed.Ñ

24 . Section 403.815 provides, in pertinent part, that:

Within 14 days after publication of notice

of proposed agency action, any person whose

substantial inter ests are affected may

request a hearing in accordance with ss.

120.569 and 120.57. The failure to request

a hearing within 14 days after publication

of notice of proposed agency action

constitutes a waiver of any right to a

hearing on the application unde r ss. 120.569

and 120.57.

25 . The DEP h as adopted Florida Administrative Code Rule

62 - 110.106(2) , which provides, in pertinent part, as follows:

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 i n a newspaper of

general circulation in the county or

counties in which the activity is to take

place, whichever first occurs . . . .

26 . As to the time frame within which a challenge to a

permit issued under Chapter 403 - - which would include a MS4

permit - - may by filed, the DEP has adopted Florida

Administrative Code Rule 62 - 110.106(3), which provides, in

pertinent part, that :

(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 propo sed action on applications for

permits under Chapter 403, Florida Statutes

. . . : fourteen days; . . .

27 . Petitioner Ó s interests are affected solely by virtue

of actions arising in Sarasota County and affecting their

property in Sarasota County. Thus, Petitioner received a clear

point of entry by reason of the January 30, 2013 , publication in

the Sarasota Herald. That f irst published notice started the

clock, and established the relevant time period within which the

time for challenging the MS4 Permit was to be calculated. Cf.

Labelle v. Bio - Med Servs. , 598 So. 2d 207 (Fla. 2d DCA 1992)

( Ð The rule provides for reasonable notice within the meaning of

section 120.57(1)(b)2 . , and the Ò whichever comes first Ó

provision of the rule governing the beginning of the fourteen -

day period for the filing of a petition seeking a hearing serves

a meaningful purpose. Ñ ) .

28 . Pet itioner did not see the notice published by the

Town of Longboat Key in the Bradenton Herald, and was not misled

by that notice. 2/ PetitionerÓs substantial interests were not

affected by any activities authorized by the MS4 Permit that

were to occur in Ma natee County.

29 . It is the opinion of the undersigned that , for permits

that apply in multiple counties , the publication of notice in a

newspaper serving an a djoining county does not serve to extend a

point of entry that has been created through the publication in

a newspaper of general circulation in the county in which the

activity that is the subject of the dispute is to take place. 3 /

30 . The Petition was filed with the DEP on February 15,

2013, 16 days after the publication of notice in the Sarasota

Herald - Tribune. Thus, the Petition was not timely filed .

Equitable Tolling

31 . Dismissal of an untimely request for hearing is

mandatory , unless facts exist to support the application of the

doctrine of equitable tolling. § 120.569(2)(c), Fla. Stat.;

Fla. Admin. Code R. 28 - 106.111(4); Machules v. DepÓt of Admin. ,

523 So. 2d 1132 (Fla. 1988); Riverwood Nursing Ctr., LLC v. Ag.

for Health Ca re Admin. , 58 So. 3d 907 (Fla. 1st DCA 2011); Cann

v. DepÓt. of Child. & Fam. Servs. , 813 So. 2d 237 (Fla. 2d DCA

2000).

32 . Equitable tolling may be applicable Ðwhen the

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

extraordinary way been prevented from asserting his rights, or

has timely asserted his rights mistakenly in the wrong forum.Ñ

Machules at 1134.

33 . The evidence in this case does not demonstrate that

Petitioner was misled or lulled into inaction as a result of any

act or omission of the DEP.

34 . Petitioner relies on the discussions and

correspondence that took place betw een Mr. Wright and

Ms. Ritchie on February 13 and February 14, 2013 , as evidence

that it was misled or lulled into inaction. However, the

evidence de monstrates that Mr. WrightÓs interactions with

Ms. Ritchie on February 13, 2013 , were focused on obtaining

copies of basin maps. Furthermore, Mr. Wright understood that,

although Ms. Ritchie knew that a Notice of Intent had been

issued, she did not know t he status of the notice . The evidence

demonstrates that Ms. Ritchie did not provide Mr. Wright with

any information that was inacc urate or incorrect, nor did

Ms. Ritchie give Mr. Wright information that would have lulled

him into believing that some action was unnecessary.

35 . Petitioner argues that Ms. Ritchie should have known

of PetitionerÓs interest in the 46 - acre drainage basin and

discharge structure, and thus should have provide d information

regarding the published notice to Mr. Wright, despi te the lack

of any specific request , and despite her lack of any specific

knowledge .

36 . The doctrine of equitable tolling places no

affirmative obligation on the part of an agency employee to

discern the intent behind a request for information, or to

provide documents in the absence of a request. In this case,

Ms. Ritchie provided a copy of the Notice of Intent almost

immediately upon receipt of the request. The fact that

Mr. Wright did not request the notice until after the time for

challenging the MS4 Permit had passed does not constitute a

misleading act on the part of Ms. Ritchie, nor does it

constitute an act that could be construed in any way as lulling

Petitioner into inaction.

37 . Petitioner further asserts that the February 12, 2013 ,

e - mai l from Erika Ginsberg - Kle mmt to employees of the DEP

Ft. Myers Ó office should be accepted as the timely filing of a

petition in the wrong forum . As indicated in the findings of

fact herein , the e - mail expresse d general concern with water

quality from the disputed stormwater outfall , and suggested that

Sarasota County was violating the existing MS4 permit . De spite

the request that the recipients Ð[p]lease be so kind as to look

into this matter and let us know what could be done to prevent

this unacceptable condition to continue unchecked like it did in

the past,Ñ the e - mail d id not , in any way , request a hearing or

suggest that it was intended to initiate a proceeding regarding

the MS4 Permit renewal. Thus, the e - mail does not constitute

the timely asserti on of PetitionerÓs rights mistakenly in the

wrong forum , or otherwise form a basis for the application of

equitable tolling.

38 . Finally, the facts alleged by Petitioner are not so

extraordinary as to have prevented Petitioner from asserting its

rights. Rather, this case is little more than the not uncommon

instance of a person failing to monitor public notices and

failing to ask the agency for copies of any notices in a timely

manner.

39 . The facts set forth by Petitioner are not sufficient

basis to apply the doctrine of equitable tolling. As stated by

the Third District Court of Appeal :

[Petitioner] has not demonstrated that he

was in any way prevented from timely

requesting a hearing within the twenty - one -

day period. He has merely alleged that he

mistakenly failed to do so.

Such a mistake, even if it rises to the

level of excusable neglect, does not provide

[Petitioner] with an escape from the

consequences of his late - filed petition.

Aleong v. State, Dep't of Bus. & Prof'l

Regulation , 96 3 So. 2d 799, 801 (Fla. 4th

DCA 2007). In closing, we quote the

following language from this Court:

We, like the Second District before us,

recognize that denying a late request

for an administrative hearing could be,

and perhaps should be, compared to

entry of a default in a judicial

proceeding, and that the administrative

rules should encourage the setting

aside of defaults to permit claims to

be heard on their merits rather than

decided on procedural technicalities.

Cann v. Dep't of Children & Family

Servs . , 813 So. 2d 237, 239 (Fla. 2d

DCA 2002). However "the legislature or

the relevant agencies are the decision -

makers to which these policy arguments

must be directed. In the context of

administrative law, the courts cannot

override a filing rule th at does not

violate due process." [ Id . ] at 240.

The final order is, therefore,

affirmed. (Emphasis in original)

Gonzalez v. Fla. Dep't of Fin. Servs. , 6 0 So. 3d 469 (Fla. 3d

DCA 2011) ( citing Patz v. Dep't of Health , 864 So. 2d 79, 82

(Fla. 3d DCA 2003) ) ; see also Nicks v. Dep't of Bus. & Prof'l

Reg. , 957 So. 2d 65, 68 (Fla. 5th DCA 2007)( Ð equitable tolling

would be available to extend the 21 - day deadline if [Petitioner]

can establish reasonable reliance upon a clear and affirmative

representation to him that his previous submission preserved his

right to contest factual allegations in the Department's

complaint. Ñ ); Jancyn Mfg. Corp. v. Dep Ót of Health , 742 So. 2d

473, 476 (Fla. 1st DCA 1999)( Ð the record reveals that the

failure to seek yet another exten sion or to file for a chapter

120 proceeding was the result of appellant's own inattention,

and not the result of a mistake or agency misrepresentation . Ñ )

40 . In conclusion , PetitionerÓs request for hearing must

be dismissed because it was filed with the D EP more than 14 days

after the publication of a valid and compliant notice in the

Sarasota Herald - Tribune, and because Petitioner failed to prove

the elements necessary to support the application of equitable

tolling in this case.

41 . The untimeliness of PetitionerÓs request for hearing

cannot be cured and, therefore, the opportunity to amend the

request for hearing is neither necessary nor appropriate.

See § 120.569(2)(c), Fla. Stat. (ÐDismissal of a petition shall,

at least once, be without prejudice to petitioner's filing a

timely amended petition curing the defect, unless it

conclusively appears from the face of the petition that the

defect cannot be cured.Ñ).

42 . As a result of the entry of this Recommended Order of

Dismissal, the final hearing scheduled for October 22 - 23, 2013,

is cancelled, and all witnesses are relieved of compl iance with

any subpoenas previously issued.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED t hat Respondent, Department of Environmental

Protection , issue a final order dismissing PetitionerÓs Request

for Hearing and Amended Petition for FLS000004 - 004 on the ground

that the Petition was not timely filed.

DONE AND ENTERED this 18th day of Octobe r , 201 3 , in

Tallahassee, Leon County, Florida.

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 18th day of October , 201 3 .

ENDNOTE S

1/ The February 15, 2013 , Petition was dismissed by the DEP ,

with leave to amend. The P etition was timely amended and re -

filed, and was thence forwarded to the Division of

Administrative Hearings. T he date of the Amended Petition

relates back to the date of filing of the original Petition.

See Terwilliger v. South Fla. Water Mngmt. Dist. a nd Fla. Power

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

SFWMD Apr. 16, 2002). Thus , the February 15, 2013 , date of

filing of the Petition is the date by which all analysis of the

timeliness of the Petition is measured.

2 / Had Petit ioner seen the Manatee County newspaper notice, and

been misled by that notice, such would likely warrant the

application of equitable tolling. It would not, in the view of

the undersigned, create a new point of entry superseding the

notice published by S arasota County in the Sarasota Herald -

Tribune.

3 / The undersigned has researched the issue of the creation of

point(s) of entry by notices published in multiple jurisdictions

by different co - applicants, for permits that extend across

political or jurisdictional boundaries, and has found no

authority directly addressing the issue. Thus, this appears to

be a case of first impression.

COPIES FURNISHED :

W. Douglas Beason, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Achim Ginsberg - Klemmt

SRQUS, LLC

3364 Tanglewood Drive

Sarasota, Florida 34239

Alan W. Roddy, Esquire

Office of the County Attorney

2nd Floor

1660 Ringling Boulevard

Sarasota, Florida 342 36

Kelly M. Fernandez, Esquire

Persson & Cohen, P.A.

6853 Energy Court

Lakewood Ranch, Florida 34240

Michael A. Connolly, Esquire

Fournier, Connolly, Warren,

and Shamsey

Suite 700

1 South School Avenue

Sarasota, Florida 34237

Kathleen Patricia Toola n, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0458

Kristine Papin Morris, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department 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

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.