22-000118 Onel, Llc, A Florida Limited Liability Company, And Holiday Rv&Apos;S Keys, Llc, A Florida Limited Liability Company vs. Department Of Transportation Status: Closed Recommended Order on Monday, May 2, 2022.

Summary: Respondent proved that its Notice provided a clear point of entry. Petitioners did not prove that this case presents an appropriate scenario for the application of the doctrine of equitable tolling.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

O NEL , LLC, A F LORIDA L IMITED L IABILITY

C OMPANY , A ND H OLIDAY R V ' S K EYS , LLC,

A F LORIDA L IMITED L IABILITY C OMPANY ,

Petitioners ,

vs. Case No. 22 - 0118

D EPARTMENT OF T RANSPORTATION ,

Respondent .

/

R ECOMMENDED O RDER ON L IMITED R EMAND

Pursuant to notice, a hearing was held in this case on March 23, 2022, by

Zoom Conference before Francine M. Ffolkes, an Administrative Law Judge

with the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioners: Edgar R. Belaval, Esquire

Belaval Law, PLLC

55 Almeria Avenue

Coral Gables, Florida 33134

For Respondent: Richard E. Shine, Esquire

Jo hn Ashley Peacock, Esquire

Department of Transportation

605 Suwannee Street , Mail Station 58

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether the doctrine of equitable tolling applies to excuse the late filing

of Petitioners, ONEL, LLC, and Holi day RV's Keys, LLC 's (Petitioners),

petition for administrative hearing with Respondent, Florida Department of

Transportation ( Respondent ).

P RELIMINARY S TATEMENT

This matter involves a challenge by Petitioners to Respondent's Notice of

Intended Department Action dated August 25, 2021 (Notice). The Notice

informed Petitioners of proposed changes to the existing configuration of

Petitioners' driveway connections to State Road 5/Overseas Highway,

Northbound from Mile Marker 97.0 to Mile Marker 100.00 in Monro e County.

Petitioners received the Notice on September 7, 2021. Petitioners requested

and received three extensions of time to file a petition for administrative

hearing, through and including November 2, 2021. Respondent received

Petitioners' initial peti tion (Petition) on November 3, 2021. Thereafter,

Respondent issued an Order for Dismissal with Leave to Amend (Order of

Dismissal), to which Petitioners responded with their A mended P etition.

Respondent referred the challenge to DOAH on January 13, 2022. On

February 2, 2022, Respondent filed a Motion to Dismiss Petitioners' Petition

for Administrative Hearing and Request for Mediation as Untimely With

Incorporated Memorandum of Law. On February 16, 2022, the undersigned

entered a Recommended Order of Dismi ssal concluding, "[t] he amended

petition does not allege any facts that rem edy this issue of untimeliness." 1

On February 28, 2022, Respondent issued an Order on Petitioners' Motion

for Rehearing and Reconsideration/Exceptions to Recommended Order and

Orde r of Remand on Limited Issue of Whether Equitable Tolling Applies

(Limited Remand). 2 The undersigned accepted the Limited Remand and

1 Petitioner s ' response was due on February 9, 2022. Florida Administrative Code Rule 28 -

106.204 governs motion practice in this case. Rule 28 - 106.2 04 does not permit the filing of

amendments to motions by the same party . Accordingly, Petitioner s ' argument that the

February 16, 2022, Recommended Order of Dismissal was issued prematurely is without

merit.

2 "Because the resolution of Nicks' equitable tolling claim requires credibility and factual

determinations, we must remand this matter to the Board for an evidentiary hearing." Nicks

v. Dep't of Bus. a nd Pro . Re gul ., 957 So. 2d 65, 68 (Fla. 5th DCA 2007).

reopened the file on March 3, 2022. The evidentiary hearing on the issue of

whether equitable tolling applies was scheduled for March 23, 2022, and the

parties filed their Joint Prehearing Stipulation on March 21, 2022.

At the hearing, Respondent presented the testimony of Hector Di Donato,

project engineer. Respondent's Exhibits 1, 2, 4, and 7 (certification and

attachments excluding the affidavit) were entered into evidence. Petitioners

presented the testimony of Damon Mount, general manager. Petitioners'

Exhibit 1 was entered into evidence.

The one - volume Transcript of the hearing was filed with DOAH on

April 6, 202 2, and the parties were given until April 16, 2022, to file their

post - hearing submittals . On April 8, 2022, the parties requested and were

granted an extension of time until April 27, 2022, for their post - hearing

submittals. Respondent timely filed its po st - hearing submittal. Petitioners'

post - hearing submittal was untimely. The undersigned duly considered the

post - hearing submittals in preparing this Recommended Order on Limited

Remand.

References to the Florida Statutes are to the 2021 version, unless

o therwise indicated.

F INDINGS OF F ACT

The following Findings of Fact are based on the parties' stipulations and

evidence adduced at the hearing.

1. Respondent's Notice informed Petitioners of proposed changes to the

existing configuration of Petitioners' driveway connections to State Road

5/Overseas Highway, Northbound from Mile Marker 97.0 to Mile Marker

100.00 in Monroe County.

2. Petitioners received the Notice on September 7, 2021. The Notice

stated, in pertinent part:

This is to inform you that you h ave the right to

challenge the action of the Department of

Transportation ("Department") described in the

attached notice. If you wish to challenge the

Department's action, you may request an

administrative hearing under Sections 120.569 and

120.57, Florid a Statutes. An administrative

hearing is similar to a trial and is held before an

Administrative Law Judge. You must deliver your

request by 5:00 p.m. no later than 21 days after you

received the notice and Notice· of Administrative

Hearing Rights to:

Cl erk of Agency Proceedings

Department of Transportation

Haydon Bums Building

605 Suwannee Street,

MS 58 Tallahassee, Florida 32399 - 0458

Facsimile: (850) 414 - 5264

3. The language of the Notice is clear and unambiguous. The language of

the Notice is adequate to inform Petitioners of the right to request an

administrative hearing under sections 120.569 and 120.57 , Florida Statutes .

The Notice also stated that " [i]f you timely request a hearing, mediation . . .

may be available. "

4. Petitioners requested and re ceived three extensions of time to file a

petition for administrative hearing, through and including November 2, 2021.

5. Respondent's facsimile record showed that the four - page Petition was

received from FaxZero .com at 5:08 p.m. on November 2, 2021, and t he

Request for Mediation was received from FaxZero .com at 10:13 a.m. on

November 3, 2021. Respondent's call detail phone record showed that a four -

page document was received at 5:07 p.m. on November 2, 2021, from

Petitioners' fax number , which is 305451303 0 .

6. The evidence established that Petitioners' counsel uses the service

FaxZero .com to send faxes. An email from FaxZero .com to Petitioners'

counsel attached to the Amended Petition informed him that a fax to the

"State of Florida at 8504145264" was conf irmed as successfully delivered "at

5:24 PM Eastern Daylight Time on November 2nd, 2021." Another

attachment to the Amended Petitio n is a fax status from FaxZero .com

informing him that his fax to "State of Florida . . . failed because the

receiver's phone was busy 3 times in a row."

7. Petitioners' general manager testified that in preparation for the

hearing, he discovered , in a filing cabinet, a copy of the Petition with a fax

"Transmission Verification Report" stapled to the front . The Transmission

Verif ication Report is blank where it should identify the name, fax number,

and telephone number of the sender. The Transmission Verification Report

purports to show that the Petition was sent to " 8504145264 " on " 11/02[2021] "

at " 04:20PM. "

8. The general manage r testified that he did not recall personally sending

a fax of the Petition to Respondent on November 2, 2021. Respondent's call

detail phone record showed that a four - page document was received at

5:07 p.m. on November 2, 2021, from Petitioners' fax number, which is

3054513030. T he preponderance of the evidence could not establish the

veracity of the "Transmission Verification Report" to prove that the Petition

was received by Respondent before 5:00 p.m. on November 2, 2021.

9 . As discussed in the Con clusions of Law, the applicable rule required

that the Petition must be received before 5 p.m. on the due date of

November 2, 2021. Whether from FaxZero.com or Petitioners' fax number of

3054513030, the evidence established that the Petition was received after

5:00 p.m. on November 2, 2021 . Therefore , the Petition was not filed until the

next business day of November 3, 2021. The separate Request for Mediation

was also untimely filed on November 3, 2021 .

10 . In the Amended Petition, Petitioners asserted t hat equitable tolling

should apply to excuse the late - filed Petition. However, a busy fax machine is

not an extraordinary circumstance . There is nothing extraordinary about the

possibility of a busy fax machine, when one waits until the last minute to

meet a filing deadline.

1 1 . In the Amended Petition, Petitioners also asserted that the Notice did

not comply with r ule 28 - 10 4(8) b ecause it did not provide an e - filing option .

However, by clearly providing Respondent's mailing address and fax number,

the Noti ce complied with the options identified in the r ule.

1 2 . Petitioners did not present any evidence of an extraordinary

circumstance that prevented them from exercising their rights. In addition ,

Petitioners did not present any evidence that they were misle d or lulled into

inaction by Respondent.

13 . Respondent's witness testified that it has an interest in timely

completing the proposed changes to the existing configuration of Petitioners'

driveway connections to State Road 5/Overseas Highway . The project, which

he described as the "U.S. 1 safety project , " is necessary for the safety of the

public.

C ONCLUSIONS OF L AW

Jurisdiction

1 4 . DOAH has jurisdiction over the subject matter of, and parties to, this

proceeding, pursuant to sections 120.569 and 120.57(1) . Section 120.569(2)(c),

which governs petitions for administrative hearing , states, in pertinent part:

"[a] petition shall be dismissed if . . . it is untimely filed."

1 5 . Rule 28 - 106. 104(1) provides that Ñfiling shall mean received by the

office of the a gency clerk during normal business hours.Ò In addition, r ule 28 -

106.104(3) provides that Ñ[a]ny document received by the office of the agency

clerk . . . after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular

business day.Ò

1 6 . T he preponderan ce of the evidence proved that the Petition was

received after 5:00 p.m. on November 2, 2021 . Therefore, the Petition was

untimely filed the next business day, i.e., November 3, 2021. The separate

Request for Mediation was also untimely.

Standard of Proof

1 7 . Findings of fact shall be based on a preponderance of the evidence and

exclusively on the evidence of record. See § 120.57(1)(j), Fla. Stat. Hearsay

evidence may be used for the purpose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a finding of fact

unless it would be admissible over objection in civil actions. See § 120.57(1)(j),

Fla. Stat.

1 8 . In this de novo hearing, it is the undersigned's "function to consider all

the evidence presented, resolve conflicts, judge credibility of witnesses, draw

permissible inferences from the evidence, and reach ultimate findings of fact

based on competent, substantial evidence." He ifetz v. Dep't of Bus. Reg ul . ,

475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

1 9 . "If, as is often the case, the evidence presented supports two

inconsistent findings, it is the [administrative law judge's] role to decide the

issue one way or the other." Id.; see Collier Med . Center, Inc. v. State Dep't of

Health and Rehab. Servs. , 462 So. 2 d 83, 85 (Fla. 1st DCA 1985) .

Burden of Proof

20 . Rule 28 - 106.111(4) states that "[a] ny person who receives written

notice of an agency decision and who fails to file a written request for a

hearing within [twenty - one] days waives the right to request a he aring on

such matters. " The burden to prove that it provided adequate notice

constituting a clear point of entry rests with Respondent.

2 1 . Due process requires that a person with substantial interests being

determined by an agency must be given notice suf ficient to provide a clear

point of entry. See Burnett IntÔl Coll . v. State, Bd. Of Nursing , 316 So. 3d 763

(Fla. 1 st DCA 2021)(reflecting that the agencyÔs notice of intent provided a

clear point entry for an administrative hearing); Capeletti Bros., Inc. v. State,

DepÔt of Transp ., 362 So. 2d 346, 348 (Fla. 1st DCA 1978).

2 2 . The language of the Notice is clear and unambiguous . Respondent

proved that the Notice provided a clear point of entry to request an

administrative hearing.

2 3 . Rule 28 - 106.111(4) al so states, " [t] his provision does not eliminate the

availability of equitable tolling as a defense. " Thus, Petitioners may invoke

the doctrine of equitable tolling to excuse the untimely filed Petition.

Equitable Tolling

2 4 . The doctrine of equitable tolli ng can be applied to toll the time for

seeking review of agency action. See Machules v. Dep't of Admin. , 523 So. 2d

1132, 1134 (Fla. 1988); Garcia v. Dep't of Bus. and Pro . Reg ul . , 988 So. 2d

1199 (Fla. 3rd DCA 2008).

2 5 . Equitable tolling is an extraordin ary remedy that should be extended

only sparingly. See Just i ce v. United States , 6 F.3d 1474, 1479 - 80 (11th Cir.

1993). Generally, a party who files late because of his own negligence may

not invoke equity to avoid a filing limitations period. See , id .

2 6 . The doctrine is generally applied only to excuse a late filing where the

petitioner has been misled or lulled into inaction by the agency, or has in

some extraordinary way been prevented from asserting his rights, or has

timely asserted his rights in th e wrong forum. See Jancyn Mfg. Corp. v. Dep't

of Health , 742 So. 2d 473, 476 (Fla. 1st DCA 1999); EnvÔt Res. AssÔn of Fl., Inc.

v. Dep't of Gen. Serv s . , 624 So. 2d 330, 330 - 31 (Fla. 1st DCA 1993), rev. den.

mem ., 634 So. 2d 623 (Fla. 1994). In addition, pr ejudice to respondents must

also be considered and found absent before applying the doctrine to excuse a

late filing. See Machules , 523 So. 2d at 1134; see also Stewart v. Dep't of

Corr. , 56 So. 2d 15, 16 (Fla. 4th DCA 1990)(finding no prejudice).

2 7 . I n E nvironmental Resource Associates of Florida, Inc. v. Department of

General Services , 624 So. 2d 330 (Fla. 1st DCA 1993), the court found that the

attendant circumstances did not warrant the application of equitable tolling

to excuse the late filing of a pe tition challenging agency action. In that case, a

state contractor was informed by an agency that its contract was being

terminated. The notice of agency action informed the contractor that it had

21 days in which to file its petition challenging the agenc y action. Rather

than filing the petition, as required under the applicable procedural rules and

as apprised in the notice of agency action, the contractor's attorney instead

sent the petition by certified mail, resulting in the petition being filed four

d ays late. The contractor contended that its late - filed petition should be

accepted on equitable principles. Citing Machules , the court declined to apply

equitable tolling to excuse the late filing of the petition under the

circumstances, which involved att orney mistake rather than conduct on the

agency's part which reasonably would have lulled or misled a person to miss

the filing deadline.

2 8 . Likewise, in Aleong v. Department of Business and Professional

Regulation , 963 So. 2d 799 (Fla. 4th DCA 2007), the C ourt declined to apply

equitable tolling to excuse the late filing of a petition, by an attorney,

challenging agency action imposing discipline on a veterinarian for certain

statutory and rule violations. In that case, as here, there was no dispute that

an attorney's mistake resulted in the late filing of the petition. In holding

that equitable tolling did not apply, the court in Aleong noted that three other

Florida district courts of appeal also declined to apply equitable tolling when

the cause of a la te filing was due to attorney mistake. Id. at 801.

2 9 . The facts of this case do not present an appropriate scenario for

application of the doctrine of equitable tolling. See, e.g., Vantage Healthcare

Corp. v. Ag. for Health C are Admin. , 687 So. 2d 306, 30 7 (Fla. 1st DCA

1997)(equitable tolling did not allow agency to accept letter of intent filed one

day late even though fault was that of overnight carrier who failed to timely

deliver letter next business day). First, Respondent's Notice did not mislead

or lull Petitioners into inaction with regard to exercising their rights to an

administrative hearing. In fact, the Notice was explicit on how and when to

go about requesting an administrative hearing in compliance with r ule 28 -

106.104.

30 . Second, Petition ers did not allege any extraordinary circumstance that

prevented them from exercising their rights. There is nothing extraordinary

about the possibility of a busy fax machine, when one waits until the last

minute to meet a filing deadline. See EnvÔt. Res. AssÔn ., 624 So. 2d at 331

( " T here is nothing extraordinary in the failure to timely file in this case." ).

Third, Petitioners have not asserted their rights in the wrong legal forum, so

there is no question of whether they timely did so.

3 1 . In addition, t he evidence established that prejudice to Respondent is

not absent. Respondent has an interest in timely completing the proposed

changes for public safety reasons.

Conclusion

3 2 . Based on the clear facts above , the Petition filed on November 3, 2021,

one day later than the November 2, 2021, deadline, is late. Respondent

proved that its Notice provided a clear point of entry. Petitioners did not

prove that this case present s an appropriate scenario for the application of

the doctrine of equitable tolling.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ,

R ECOMMENDED that Respondent enter a final order dismissing Petitioners'

amended and initial petitions , and request for mediation, with prejudice.

D ONE A ND E NTERED this 2nd day of May , 2022 , in Tallahassee, Leon

County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrativ e Hearings

this 2nd day of May, 2022 .

C OPIES F URNISHED :

Richard E. Shine, Esquire Edgar R. Belaval, Esquire

Department of Transportation Belaval Law, PLLC

605 Suwannee Street 55 Almeria Avenue

Tallahassee, Florida 32399 Coral Gables, Florida 33134

Amber Greene, Clerk of Agency Proceedings John Ashley Peacock, Esquire

Department of Transportation Department of Transportation

Haydon Burns Building 605 Suwannee Street , M ail S tation 5 8

605 Suwannee Street , M ail S tation 5 8 Tallahassee, Florida 32399 - 0450

Tallahassee, Florida 32399 - 0450

Rebekah Davis, General Counsel

Kevin J. Thibault, P.E., Secretary Department of Transportation

Department of Transportation Haydon Burns Building

Haydon Burns Building 605 Suwannee Street , M ail S tation 5 8

605 Suwannee Street , M ail S tation 5 7 Tallahassee, Florida 32399 - 0450

Tallahassee, Florida 32399 - 0450

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any excepti ons to this Recommended

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

case.