91-006871 Central Florida Wetlands Society, William And Florence Bailey, Richard Wagner, Et Al. vs. Department Of Environmental Regulation Status: Closed Recommended Order on Friday, January 24, 1992.

Summary: Petitioner for hearing untimely. Notice in "Heritage Florida Jewish News" met legal notice required for public in "newspaper of general circulation."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CENTRAL FLORIDA WETLANDS SOCIETY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6871

)

STATE OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION and )

KIRKMAN ORLANDO PARTNERS, LP, )

)

Respondents. )

___________________________________)

CITY OF ORLANDO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8017

)

STATE OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION and )

KIRKMAN ORLANDO PARTNERS, LP, )

)

Respondents. )

___________________________________)

WILLOW KEY ASSOCIATES LIMITED, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8018

)

STATE OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION and )

KIRKMAN ORLANDO PARTNERS, LP, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER OF DISMISSAL

As addressed in an order dated January 2, 1992, an evidentiary motion

hearing was conducted, by telephone, on a motion to dismiss Central Florida

Wetlands Society's petition in case number 91-6871, styled above.

Consistent with that order, the parties have filed affidavits and briefs or

memoranda on their respective positions. In addition, the City of Orlando and

Kirkman Orlando Partners, LP ( KOP) have submitted supplemental affidavits.

These have been considered in the preparation of this order, and the motions to

strike supplemental affidavits by City of Orlando and KOP are each DENIED.

ISSUES

The issue for disposition is whether Central Florida Wetlands Society's

petition in case number 91-6871 should be dismissed as requested by Kirkman

Orlando Partners, LP ( KOP). More specifically, it must be determined whether

the Heritage Florida Jewish News is a "newspaper of general circulation", and,

if so, whether any circumstances exist that would excuse the Society's failure

to file its petition within the 21-day period specified in a notice published in

that newspaper.

BACKGROUND MATTERS

As stipulated by the parties, the evidence in this proceeding has been

presented primarily by affidavits. Michael Mingea testified on behalf of the

Central Florida Wetlands Society, but his testimony was generally argument with

regard to the Society's position and restatements of matters presented in his

petition and letters. His testimony has been considered, with the affidavits

filed by the remaining parties and his letters, furnished to the other parties,

have been considered with the remaining parties' briefs and memoranda.

A separate order is being entered this same day with regard to the City of

Orlando's motion for extension of time to file petition and Kirkman Orlando

Partners LP's motion to dismiss or strike, in DOAH case number 91-8017.

FINDINGS OF FACT

1. On September 13, 1991, Kirkman Orlando Partners LP ( KOP) and the

Florida Department of Environmental Regulation ( DER) entered into a consent

order with regard to an enforcement action by the agency involving dredging and

filling of wetlands in Orlando, Orange County, Florida.

2. The consent order includes this requirement:

14. Respondent shall publish the following

notice in a newspaper of general circulation

in Orange County, Florida. The notice shall

be published one time only within 10 days

after execution of the Consent Order by the

Department.

STATE OF FLORIDA DEPARTMENT OF

ENVIRONMENTAL REGULATION

NOTICE OF PROPOSED AGENCY ACTION

The Department of Environmental

Regulation gives notice of agency action of

entering into a Consent Order with KIRKMAN

ORLANDO PARTNERS LP, a/k/a KIRKMAN ORLANDO

PARTNERS LTD., pursuant to Rule 17-103.110(3),

Florida Administrative Code. The Consent

Order addresses the dredging and filling of

certain wetlands without a required permit in

Sections 6 and 7 of Orange County generally

east of Kirkman Road and north of L.B. McLeod

Road.

The Consent Order is available for public

inspection during normal business hours, 8:00

a.m. to 5:00 p.m., Monday through Friday

except legal holidays, at the Department of

Environmental Regulation, Central District

Office, 3319 Maguire Boulevard, Suite 232,

Orlando, Florida 32803.

Persons whose substantial interests are

affected by the above proposed agency action

have a right to petition for an administrative

determination (hearing) on the proposed action.

The Petition must contain the information set

forth below and must be filed (received) in

the Department's Office of General Counsel,

2600 Blair Stone Road, Tallahassee, Florida

32399-2400, within 21 days of receipt of this

notice. A copy of the Petition must also be

mailed at the time of filing to the (persons

named) above at the address indicated.

Failure to file a petition within the 21 days

constitutes a waiver of any right such person

has to an administrative determination

(hearing) pursuant to Section 120.57, F.S.

The petition shall contain the following

information:

(a) The name, address, and telephone

number of each petitioner; the Department's

identification number and the county in which

the subject matter or activity is located;

(b) A statement of how and when each

petitioner received notice of the Department's

action or proposed action; (c) A statement

of how each petitioner's substantial interests

are affected by the Department's action or

proposed action; (d) A statement of the

material facts disputed by petitioner, if any;

(e) A statement of facts which petition

contends warrant reversal or modification of

the Department's action or proposed action;

and (g) A statement of the relief sought by

petitioner stating precisely the action

petitioner wants the Department to take with

respect to the Department's action or proposed

action.

If a petition is filed, the administrative

hearing process is designed to formulate

agency action. Accordingly, the Department's

final action may be different from the

position taken by it in this Notice. Persons

whose substantial interest will be affected

by any decision of the Department with regard

to the subject agency (proposed) action have

the right to petition to become a party to

the proceeding. The petition must conform to

the requirements specified above and be filed

(received) within 21 days of receipt of this

notice in the Office of General Counsel at

the above address of the Department. Failure

to petition within the allowed time frame

constitutes a waiver of any right such person

has to request a hearing under Section 120.57,

F.S., and to participate as a party to this

proceeding. Any subsequent intervention will

only be at the approval of the presiding

officer upon motion filed.

A party who is adversely affected by

this Final Order is entitled to Judicial

Review pursuant to Section 120.68, F.S.

Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such

proceedings are commenced by filing one copy

of a Notice of Appeal with the Agency Clerk

of the Division of Administrative Hearings

and a second copy, accompanied by filing fees

prescribed by law, with the District Court of

Appeal, First District, or with the District

Court of Appeal in the Appellate District

where the party resides. The Notice of Appeal

must be filed within 30 days of rendition of

the Order to be reviewed.

Respondent shall provide proof of

publication to the Department within fourteen

(14) days of publication.

(Consent order filed at DOAH

10/29/91. emphasis added)

3. The required notice was published in the September 20, 1991 edition of

Heritage Florida Jewish News (Heritage).

The filing deadline was, therefore, Friday, October 11, 1991, 21 days after

the notice was published. As reflected above, the notice clearly provides that

filing means "received" by the agency and that failure to file constitutes a

waiver of right to an administrative hearing.

4. On September 25, 1991, Doug MacLaughlin, Esquire, Counsel for DER, sent

a letter to Randall Denker, Esquire stating:

Enclosed as you requested is a copy of the

Consent Order as referenced above. Also

enclosed is a copy of the public notice

published on September 20, 1991, in the

Heritage Florida Jewish News, also enclosed.

Note that the published public notice

allows affected parties 21 days from September

20 to petition for a hearing. Assuming that

this is considered adequate public notice,

this 21 day newspaper deadline would apply to

any of your clients interested in this matter.

(letter filed at DOAH 1/7/92)

Ms. Denker represents Central Florida Wetlands Society ( CFWS) in a civil

proceeding related to the activities that are the subject of the consent order.

CFWS received actual notice of the proposed agency action. As stated in

Michael Mingea's letter to the hearing officer filed at DOAH on January 6, 1992:

...[W]e feel the decision regarding your

ruling on the acceptability of the Heritage

Jewish News is unnecessary because the Society

received actual notice of proposed agency

action from DER's attorney, Mr. MacLaughlin,

stating that we had a certain number of days

to submit a Petition for an Administrative

Hearing and we submitted a Petition within

that time-frame. Therefore, we feel that

DER's letter of actual notice supersedes any

published notice in the Heritage Jewish News.

5. A petition for formal administrative proceeding, signed and verified by

Michael Mingea, President, CFWS, was filed (received) by the DER Office of

General Counsel on October 14, 1991.

6. The City of Orlando filed a motion for extension of time to file

petition on November 12, 1991.

7. DER's Central District Office in Orlando, the office responsible for

administration of the consent order, has taken the position that Heritage is not

a newspaper of general circulation. George Gionis, Program Administrator for

the Water Management Division in DER's Central District Office has informed KOP

of his concern, but no one from DER has insisted or suggested that the notice

should be republished in another newspaper in order to comply with the consent

order.

8. The Heritage has been published weekly for more than 15 years on a

continuous basis. It has a circulation of approximately 3000 on a regular

basis, up to approximately 7000 for certain issues. The population of Orange

County is approximately 701,000.

The newspaper is entered as second class mailing at the post offices in

both Orange and Seminole Counties.

It contains at least 25% of its words in the English language. The four

issues filed at the Division of Administrative Hearings, and included as

evidence in this proceeding, are dated February 1, 1991; May 10, 1991; June 21,

1991; and September 20, 1991. All of the words in those issues are in English.

9. Substantially less than 50% of the newspaper is devoted to classified

advertisements. The classifieds include legal notices from the Ninth (Orange

County) and Eighteenth ( Seminole County) Judicial Circuits. Legal notices by

the Florida Department of Professional Regulation ( DPR) are also found in the

classified section. (See February 1, 1991 edition containing notices of action

by DPR's Board of Funeral Directors and Embalmers, Board of Construction, and

Board of Cosmetology.)

10. Even though the newspaper is not sold at any of the three newsstands

listed in the yellow pages of the Orlando telephone book, it is offered for sale

to the public generally. The newspaper is available for purchase by the public

through subscription and at the Jewish Community Center in Maitland and the

newspaper office in Fern Park. It is available to the public at the Orlando and

Maitland public libraries.

The newspaper's masthead recites:

HERITAGE Florida Jewish News

( ISN 0199-0721) is published weekly for $22.26

($21 plus $1.26 Fla. sales tax) per year to

Florida addresses ($25 for the rest of the

U.S.) by HERITAGE Central Florida Jewish News,

Inc., 207 O'Brien Road, Suite 101, Fern Park,

FL 32730. Second-class postage paid at Fern

Park and additional mailing offices.

11. The Heritage customarily contains information of a public character or

of interest or value to the general public and residents and property owners in

Orange and Seminole Counties.

The four editions referenced above include a 12-page fashion section, a 20-

page health and fitness section, short articles on central Florida businesses,

and articles on elder care and child care. Most of the news articles, local,

national and international, relate to Israel or to issues involving Jewish

people. For example, the lead headline in the February 1, 1991, edition reads,

"Iraqi Missile Attacks have left thousands of Israelis homeless". Another

article in that edition reports on U.S. Representative Jim Bacchus' commendation

of Israel on the floor of the House. As the attention of the general public was

riveted to events in the Persian Gulf in early 1991, it is likely that the same

or similar articles appeared in newspapers throughout the state and county.

Examples of front page headlines from other editions include, "Israelis

racing against the clock to get remaining Jews out of Ethiopia"; "Congress urged

to press Syria to let its 4,000 Jews emigrate"; "Federation allocates $81,377 to

local agencies from 100 Days Combined Jewish Appeal Campaign"; and "Ethiopians

adjust to new lifestyle".

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to Section 120.57(1), F.S.

13. DER Rule 17-103.150(3), F.A.C. addresses the notice required for

proposed agency action other than on a permit application and is relevant

here. It provides, in pertinent part:

(3) The Department or any person whose

substantial interests are or may be affected

by proposed agency action other than on a

permit application may publish or may be

required to publish public notice, and provide

proof of publication, in a newspaper of

general circulation in the county or counties

affected by the proposed action. Such public

notice shall contain at least the following

information and be in substantially the

following form:

State of Florida

Department of Environmental

Regulation

Notice of Proposed Agency Action

(a) The type of proposed agency action

(e.g., Consent Order);

(b) A description and location of the

subject matter or activity covered by the

action, the Department's identification

number, and the name and address of any person

to whom the action is directed;

(c) The location where complete copies of

the document and accompanying material

expressing the proposed agency action are

available for public inspection; and

(d) Paragraphs which read substantially as

follows:

Persons whose substantial interests are

affected by the above proposed agency action

have a right, pursuant to Section 120.57,

F.S., to petition for an administrative

determination (hearing) on the proposed

action. The petition must contain the

information set forth below and must be filed

(received) in the Department's Office of

General Counsel, 2600 Blair Stone Road,

Tallahassee, Florida 32399-2400, within 21

days of publication of this notice. A copy

of the Petition must also be mailed at the

time of filing to the [persons named] above

at the address indicated. Failure to file a

petition within 21 days constitutes a waiver

of any right such person has to an

administrative determination (hearing)

pursuant to Section 120.57, F.S.

* * *

14. Rule 17-103.150(2)(c), F.A.C. provides, in pertinent part:

* * *

For the purpose of this rule, "publication in

a newspaper of general circulation in the area

affected" means publication in a newspaper

meeting the requirements of Sections 50.011

and 50.031, F.S., in the county where the

activity is to take place.

* * *

15. Section 50.011, F.S., requires the following of a newspaper utilized

for legal notices or service by publication:

a. That it be published and printed weekly or more often;

b. That it contain at least 25% of its words in the English language;

c. That it be entered or qualified to be admitted and entered as second

class matter at a post office in the county where published;

d. That it be for sale to the public generally;

e. That it be available to the public generally for the publication of

official or other notices; and

f. That it contain information of a public character or of interest or of

value to the residents or owners of property in the county where published, or

of interest or of value to the general public.

Section 50.031, F.S. imposes the additional requirement that the newspaper

at the time of publication of the notice shall have been in existence for one

year.

16. As found in the recitation of facts above, the Heritage Florida Jewish

News meets the requirements of Sections 50.011, F.S., and 50.031, F.S., and

therefore meets the requirement of DER's rules.

17. This conclusion is supported by case law exhaustively discussed in

Bio-tech Tracking Systems, Inc., v. State of Florida, Department of

Environmental Regulation, 13 FALR 2309 (Final Order dated May 17, 1991). In

that case, Hearing Officer, P. Michael Ruff found that the Leon County News, a

weekly publication printing a mere 100 newspapers a week, available by

subscription and at three supermarket newspaper racks in Leon County, was a

newspaper of general circulation as provided in DER's Rule and Chapter 50, F.S.,

for purposes of publication of a notice of intent to issue a permit for

expansion of a biomedical waste incinerator in Leon County.

In the face of the Department's exceptions to the recommended order,

Secretary Carol Browner adopted the hearing officer's findings of fact and

conclusions of law that the Leon County News is a newspaper of general

circulation. The Department had argued, as it does here, that the newspaper was

not available to the public generally and the intent of Chapters 403 and 120,

Florida Statutes could be effectuated only by a broad interpretation of Chapter

50 to require publication in a widely circulated newspaper.

In the absence of a rule or statute, or even case law, the secretary

rejected disqualification of a newspaper based on small circulation alone.

Notably, the Legislature in 1991 amended the notice provisions for

biohazardous waste facilities by defining "newspaper of general circulation" to

mean the newspaper in the county with the largest daily circulation. See

Section 403.707, F.S. It did not amend Chapter 50, however.

18. The Department in the instant case argues that not only the

circulation but also the content of the Heritage Florida Jewish News should

disqualify it. The newspaper, DER claims, is directed essentially to one

interest group of the general public.

In State ex rel. Miami Leathercote Company v. Gray, 39 So.2d 716, in 1949

the Florida Supreme Court found The Jewish Floridian was a newspaper of general

circulation in Dade County, stating:

* * *

We think the rule is settled in this country

that while a newspaper may be devoted

primarily to the interests of a special class

or group, if it contains news of a general

character and interest to the community, even

though limited but not negligible in amount,

it may qualify as a newspaper of general

circulation under the law.

* * *

Several copies of "The Jewish Floridian"

are attached to and made a part of the record

in this case. They have been examined and we

are convinced that much of their contents

would be of interest to the general reading

public. There is no question that it is

essentially a Jewish publication but in most

of the communities of our country the

interests of Jews and Gentiles so interfuse

and overlap that it would be difficult to

point out where the interest of one leaves off

and the interest of the other takes up. If a

distinction like this has any bearing on the

case it would be as reasonable to distinguish

between the interests of the Scotch and the

Irish.

* * *

Events in the Middle East have made that language all the more relevant

today. News affecting or regarding the State of Israel is of far wider interest

than solely to persons of the Jewish faith or heritage.

19. Although no single case in the myriad cases discussed in Bio-tech

Tracking Systems, supra, or the parties' memoranda, is precisely on point, this

general principle still applies: for more stringent publication requirements to

be imposed, specific statutory or regulatory direction must be found.

20. The Society makes no argument that the deadline should be tolled, but

rather claims that its filing within 21 days of actual notice is sufficient.

The actual notice it received (the letter to its attorney) also informed it of

the running of the deadline from September 20th.

DER Rule 17-103.155(3)(a), F.A.C. provides that the running of the time for

filing a petition for hearing commences from receipt or publication, (whichever

occurs first) of notice of the proposed agency action.

Notice to CFWS was unambiguous and clear, and by its failure to timely

request an administrative hearing it has waived its right to such hearing.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED:

That the Department enter its Final Order dismissing the petition of

Central Florida Wetlands Society as untimely.

DONE and RECOMMENDED this 24th day of January, 1992, in Tallahassee, Leon

County, Florida.

___________________________________

MARY CLARK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of January, 1992.

COPIES FURNISHED:

Douglas H. MacLaughlin, Esquire

Dept. of Environmental Regulation

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Charles Tunnicliff, Esquire

Dept. of Professional Regulation

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0740

Debra Braga, Esquire

City of Orlando

400 S. Orange Avenue

Orlando, FL 32801

Michael Mingea

Central Florida Wetlands Society

P.O. Box 690218

Orlando, FL 32896

Nicholas A. Pope, Esquire

Lowndes, Drosdick, et al.

215 N. Eola Drive

Orlando, FL 32801

P. Hugh Trees, Esquire

Robert T. Rosen, Esquire

1051 Winderley Place

Maitland, FL 32751

Carol Browner, Secretary

Dept. of Environmental Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel

Dept. of Environmental Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400