99-003576 Luis F. Hernandez vs. Transpo Electronics, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, January 24, 2003.

Summary: Petitioner who filed more than 35 days after 180-day period prescribed in Section 760.11(3), Florida Statutes, is time barred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS F. HERNANDEZ, )

)

Petitioner, )

)

vs. ) Case No. 99-3576

)

TRANSPO ELECTRONICS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

An evidentiary hearing was conducted in this proc eeding on

April 10, 2000, in Orlando, Florida by Daniel Manry,

Administrative Law Judge ("ALJ"), Division of Administrative

Hearings ("DOAH"). The parties and court reporter attended the

hearing in Orlando. The ALJ participated by videoconference from

Tallahassee, Florida.

APPEARANCES

For Petitioner: Luis F. Hernandez, pro se

1116 Golden Gate Avenue

Orlando, Florida 32808

For Respondent: Charles Williams, Jr., Esquire

Scott A. Livingston, Esquire

Williams and Davis, P.A.

Suite 1220, Suntrust Center

Post Office Box 1831

200 South Orange Avenue

Orlando, Florida 32802-1831

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's claim is

barred by Section 760.11(7), Florida Statutes (1999), because

Petitioner filed a request for hearing more than 35 days after

the time prescribed in Section 760.11(3) for a determination of

reasonable cause by the Florida Commission on Human Relations

(the "Commission"). (All statutory references are to Florida

Statutes (1999) unless otherwise stated).

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discriminat ion with the

Commission on or about October 3, 1995. The Commission issued a

Notice of Determination: No Cause on July 14, 1999. On

August 13, 1999, Petitioner filed a Petition for Relief with the

Commission in which Petitioner requested an administrative

hearing. On August 23, 1999, the Commission referred the matter

to DOAH to conduct the administrative hearing.

Respondent filed a Motion to Dismiss on October 19, 1999.

No ruling was made on the Motion to Dismiss. On December 16,

1999, Respondent filed a Motion for Clarification effectively

seeking a ruling on the Motion to Dismiss.

In reviewing the DOAH file in connection with the Motion for

Clarification, it appeared that Petitioner may have failed to

comply with statutory time limits for requesting a hearing

pursuant to Section 760.11(4)(b). At a case management

conference conducted by telephone, an evidentiary hearing was

scheduled for April 10, 2000, to allow the parties an opportunity

to present evidence and legal argument concerning the issue of

whether Petitioner's claim is barred by Section 760.11(7).

At the evidentiary hearing, Petitioner testified and

submitted one exhibit for admission in evidence. Respondent

called no witnesses but submitted three exhibits for admission in

evidence. The identity of the exhibits and any attendant rulings

are set forth in the Transcript of the hearing filed on May 1,

2000. Respondent filed Respondent's Memorandum of Law Regarding

Dismissal Based on Lack of Jurisdiction on April 7, 2000. On

April 24, 2000, Petitioner filed Petitioner's Motion for

Extension of Time to Provide Responsive Memorandum to

Jurisdictional Issues Raised by Respondent. The motion for

extension of time was granted on May 19, 2000, and Petitioner

filed Petitioner's Response to Jurisdictional Issues Raised by

Respondent on May 22, 2000.

FINDINGS OF FACT

1. Respondent employed Petitioner from May 25, 1995, until

September 1, 1995. Petitioner filed a Charge of Discrimination

with the Commission on October 3, 1995.

2. The C harge of Discrimination alleges that Petitioner was

forced to leave his position of employment because of

Petitioner's sex, color, national origin, and age. The Charge of

Discrimination contains no more specific factual allegation of an

adverse employment action or other act of discrimination.

Time Limits

3. The Charge of Discrimination was timely filed pursuant

to Section 760.11(1). The filing date of October 3, 1995, fell

within 365 days of May 25, 1995, which is the first day on which

the alleged discrimination could have occurred.

4. Section 760.11(3) authorizes the Commission to issue a

determination of reasonable cause within 180 days of October 3,

1995, the date Petitioner filed the Charge of Discrimination.

Counting October 4, 1995, as the first day of the 180-day time

limit, Section 760.11(3) authorized the Commission to determine

reasonable cause no later than March 31, 1996. The Commission

issued a Notice of Determination: No Cause on July 14, 1999.

5. Section 760.11(7) required Petitioner to file a request

for hearing within 35 days of March 31, 1996. Counting April 1,

1996, as the first day of the 35-day period, Section 760.11(7)

required Petitioner to file a request for hearing no later than

May 5, 1996.

6. Petitioner did not timely file a request for hearing.

Petitioner first requested a hearing in the Petition for Relief

filed on August 13, 1999. Petitioner filed his request for

hearing approximately 1,185 days late and 1,220 days after the

expiration of the 180-day time limit prescribed in Section

760.11(3). Petitioner delayed the request for hearing because he

did not have the form entitled Petition for Relief.

7. Section 760.11(7) statutorily bars Petitioner's claim.

Section 760.11(7) expressly provides, in relevant part:

If the aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the parties and the subject

matter in this proceeding. The parties received adequate notice

of the administrative hearing. Section 120.57(1).

Time Limits

9. Section 760.11(3), in relevant part, provides that the

Commission "shall determine," within 180 days from the date that

an aggrieved party files a Charge of Discrimination, whether

there is reasonable cause to believe a discriminatory practice

has occurred. If the Commission issues a determination of

reasonable cause within the 180-day time limit and the aggrieved

party wishes to pursue the claim, Sections 760.11(4)(a) and (b),

respectively, authorize the aggrieved party to either bring a

civil action in court or request an administrative hearing, but

not both. Sections 760.11(5) and (7), respectively, require the

civil action or request for administrative hearing to be filed

within one year or 35 days of the date the Commission determines

reasonable cause.

10. If the Commission does not determine reasonable cause

within 180 days, Section 760.11(8) authorizes an aggrieved party

to file either a civil action or request for administrative

hearing as if the Commission had determined reasonable cause

within the 180-day time limit in Section 760.11(3). However,

Section 760.11 is silent as to the point at which the one-year

and 35-day filing requirements in Section 760.11(5) and (7) begin

to run when the Commission fails to act within 180 days.

11. The one-year and 35-day filing requirements in Sections

760.11(5) and (7) begin to run at the same point. Both filing

requirements were enacted in the same act and relate to the same

subject matter, i.e., time limits applicable to the mutually

exclusive remedies authorized in Section 760.11(4)(a) or (b).

Joshua v. City of Gainesville , 734 So. 2d 1068, 1069-1070 (Fla.

1st DCA 1999). The filing requirements in Section 760.11(5) and

(7) are imbued with the same spirit, are actuated by the same

policy, and must be considered in pari materia in a manner that

harmonizes them and gives effect to legislative intent for the

entire act. See , e.g. , Major v. State , 180 So. 2d 335, 337 (Fla.

1965); Abood v. City of Jacksonville , 80 So. 2d 443, 444-445

(Fla. 1955); Tyson v. Stoutamire , 140 So 454, 456 (Fla. 1932);

Agency for Health Care Administration v. Wingo , 697 So. 2d 1231,

1233 (Fla. 1st DCA June 27, 1997); Armas v. Ross , 680 So. 2d

1130, 1130 (Fla. 3d DCA 1996); State Farm Mutual Automobile

Insurance Company v. Hassen , 650 So. 2d 128, 133 n. 5 (Fla. 2d

DCA 1995); Schorb v. Schorb , 547 So. 2d 985, 987 (Fla. 2d DCA

1989); Escambia County Council on Aging v. Goldsmith , 465 So. 2d

655, 656 (Fla. 1st DCA 1985); Jackson v. State , 463 So. 2d 373,

373 (Fla. 5th DCA 1985), reh'g denied .

12. The one-year filing requirement in Section 760.11(5)

begins to run on the first day after the 180-day time limit in

Section 760.11(3). If the Commission issues a determination of

reasonable cause after 180 days or never issues a determination

of reasonable cause, a civil action filed more than one year

after the 180-day time limit is statutorily barred by Section

760.11(5). Joshua , 734 So. 2d at 1070-1071 (question certified

to the Florida Supreme Court) rev. granted 735 So. 2d 1285 (Fla.

1999); Adams v. Wellington Regional Medical Center, Inc. , 727 So.

2d 1139 (Fla. 4th DCA 1999) (question certified to the Florida

Supreme Court); Daugherty v. City of Kissimmee , 722 So. 2d 288

(Fla. 5th DCA 1998); Crumbie v. Leon County School Board , 721 So.

2d 1211 (Fla. 1st DCA 1998); Kalkai v. Emergency One , 717 So. 2d

626 (Fla. 5th DCA 1998); Milano v. Moldmaster, Inc. , 703 So. 2d

1093, 1094-1095 (Fla. 4th DCA 1998). See also Sasser M. and

Stafford S., "Defining the Hourglass: When Is a Claim Under the

Florida Civil Rights Act Time Barred?", 73 Fla. B.J. 68 (Dec.

1999).

13. The 35-day filing requirement in Section 760.11(7) also

begins to run on the first day after the 180-day time limit in

Section 760.11(3). If the Commission issues a determination of

reasonable cause after 180 days or never issues a determination

of reasonable cause, a request for an administrative hearing

filed more than 35 days after the 180-day time limit is

statutorily barred by Section 760.11(7). See , e.g. , Joshua , 734

So. 2d at 1070-1071; Adams , 727 So. 2d at 1139; Daugherty , 722

So. 2d at 288; Crumbie , 721 So. 2d at 1211; Kalkai , 717 So. 2d at

626; Milano , 703 So. 2d at 1094-1095. See also Hall v. Boeing

Aerospace Operation , 20 FALR 2596 (1998); Gessler v. Department

of Business and Professional Regulation , 627 So. 2d 501, 504

(Fla. 4th DCA 1993), reh. denied , dismissed , 634 So. 2d 624 (Fla.

1994)(agency is bound by its administrative orders pursuant to

the doctrine of stare decisis ). Compare Nordheim v. Department

of Environmental Protection , 719 So. 2d 1212, 1214 (Fla. 3d DCA

1998) (agency refusal to consider its prior decision is abuse of

discretion) with Caserta v. Department of Business and

Professional Regulation , 686 So. 2d 651, 653 (Fla. 5th DCA 1996)

(Section 120.53 requirement for subject matter index does not

begin until effective date of 1992 amendment).

14. In this case, Petitioner filed his Charge of

Discrimination on October 3, 1995. Counting October 4, 1995, as

the first day of the 180-day period, Section 760.11(3) authorized

the Commission to issue a determination of reasonable cause no

later than March 31, 1996.

15. The 35-day filing requirement in Section 760.11(7)

began to run in this case on April 1, 1996. Section 760.11(7)

required Petitioner to file a request for hearing in the Petition

for Relief no later than May 5, 1996.

16. Petitioner did not file a request for hearing until

August 13, 1999. Petitioner filed the request for hearing 1,185

days late and 1,220 days after the 180-day time limit in Section

760.11(3).

Statutory Authority

17. Section 760.11(3) provides that the Commission "shall

determine" reasonable cause within 180 days of the date

Petitioner filed the Charge of Discrimination on October 3, 1995.

The statute does not state that the Commission shall determine

reasonable cause within 180 days or anytime thereafter. After

March 31, 1996, the Commission had no statutory authority to act.

Neither the Commission nor DOAH can adopt an interpretation of

Section 760.11(3) that enlarges, modifies, or contravenes the

180-day time limit prescribed by the legislature. Sections

120.52(8)(c) and 120.68(7)(e)4. See also DeMario v. Franklin

Mortgage & Investment Co., Inc. , 648 So. 2d 210, 213-214 (Fla.

4th DCA 1994), rev . denied , 659 So. 2d 1086 (Fla. 1995) (agency

lacks authority to impose time requirement not found in statute);

Department of Health and Rehabilitative Services v. Johnson and

Johnson Home Health Care, Inc. , 447 So. 2d 361, 362 (Fla. 1st DCA

1984) (agency action that ignores some statutory criteria and

emphasizes others is arbitrary and capricious).

18. Florida Administrative Code Rule 60Y-5.008(1) requires

an aggrieved party to file a Petition for Relief requesting an

administrative hearing within 30 days of service of a Notice of

Determination of No Reasonable Cause. (Unless otherwise stated,

all references to rules are to rules promulgated in the Florida

Administrative Code in effect on the date of this Recommended

Order.) Rule 60Y-5.008(2) provides that the Commission may grant

an extension of time to file a request for hearing upon a showing

of good cause if the aggrieved party files a motion for extension

of time within the 30-day period prescribed in Rule 60Y-5.008(1).

19. Rule 60Y-5.008 is limited in scope to cases in which

the Commission issues a valid determination of reasonable cause

in 180 days. The express terms of the rule do not reach

situations where the Commission fails to issue a determination of

reasonable cause. Neither the Commission nor DOAH can deviate

from Rule 60Y-5.008. Section 120.68(7)(e)2. An agency's

deviation from a valid existing rule is invalid and

unenforceable. Federation of Mobile Home Owners of Florida, Inc.

v. Florida Manufactured Housing Association, Inc. , 683 So. 2d

586, 591-592 (Fla. 1st DCA 1996); Gadsden State Bank v. Lewis ,

348 So. 2d 343, 346-347 (Fla. 1st DCA 1977); Price Wise Buying

Group v. Nuzum , 343 So. 2d 115, 116 (Fla. 1st DCA 1977).

20. Even if Rule 60Y-5.008 applied to situations in which

the Commission fails to issue a notice of determination in 180

days, the rule's authority to extend the 30-day filing

requirement cannot be construed in a manner that effectively

extends the 180-day time limit in Section 760.11(3). The 30-day

filing requirement in Rule 60Y-5.008 begins to run on the first

day after the 180-day period in Section 760.11(3). Cf . Joshua ,

734 So. 2d at 1070-1071; Adams , 727 So. 2d at 1139; Daugherty ,

722 So. 2d at 288; Crumbie , 721 So. 2d at 1211; Kalkai , 717 So.

2d at 626; Milano , 703 So. 2d at 1094-1095. Petitioner did not

file a motion to extend the 30-day filing requirement within 30

days after the 180-day period.

21. Neither the Commission nor DOAH can constru e Rule 60Y-

5.008 to enlarge, modify, or contravene the 180-day time limit

the legislature prescribed in Section 760.11(3). A rule cannot

impose a requirement not found in a statute or otherwise enlarge,

modify, or contravene the terms of a statute. See , e.g. ,

DeMario , 648 So. 2d at 213-214 (agency lacked authority to impose

time requirement not found in statute); Booker Creek

Preservation, Inc. v. Southwest Florida Water Management

District , 534 So. 2d 419, 423 (Fla. 5th DCA 1988) (agency cannot

vary impact of statute by creating waivers or exemptions) reh.

denied . Where an agency rule conflicts with a statute, the

statute prevails. Hughes v. Variety Children's Hospital , 710 So.

2d 683, 685 (Fla. 3d DCA 1998); Johnson v. Department of Highway

Safety & Motore Vehicles, Division of Driver's Licenses , 709 So.

2d 623, 624 (Fla. 4th DCA 1998); Willette v. Air Products , 700

So. 2d 397, 401 (Fla. 1st DCA 1997), reh'g denied ; Florida

Department of Revenue v. A. Duda & Sons, Inc. , 608 So. 2d 881,

884 (Fla. 5th DCA 1992), reh'g denied ; Department of Natural

Resources v. Wingfield Development Company , 581 So. 2d 193, 197

(Fla. 1st DCA 1991) reh. denied . See also Capeletti Brothers,

Inc. v. Department of Transportation , 499 So. 2d 855, 857 (Fla.

1st DCA 1987)(rule cannot expand statutory coverage) rev. denied ,

509 So. 2d 1117.

22. The record does not disclose why the Commission failed

to issue a determination of reasonable cause within the 180-day

time limit in Section 760.11(3). The reason may be attributable

to administrative convenience or expediency related to a heavy

caseload that prevents the agency from completing its

investigation within 180 days. However, administrative

convenience or expediency cannot dictate the terms of the time

limits prescribed by the legislature in Section 760.11(3).

Cleveland Clinic Florida Hospital v. Agency for Health Care

Administration , 679 So. 2d 1237, 1241 (Fla. 1st DCA 1996) reh.

denied ; Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995) reh. denied ; Flamingo Lake RV Resort, Inc. v. Department of

Transportation , 599 So. 2d 732, 732 (Fla. 1st DCA 1992).

23. If administrative convenience were allowed to extend

the 180-day time limit prescribed in Section 760.11(3), the

result would subject the statutory time limit to a "manipulable

open-ended time extension. . . ." Cf . Lewis v. Conners Steel

Company , 673 F.2d 1240, 1242 (11th Cir. 1982) (barring Title VII

lawsuit filed outside the 90-day period). Such a result

". . . could render the statutory limitation meaningless." Id.

Jurisdiction

24. Petitioner's claim is statutorily barred by Section

760.11(7). In relevant part, Section 760.11(7) requires that

Petitioner's request for hearing in the Petition for Relief:

. . . must be made within 35 days of the date

of determination of reasonable cause [by the

Commission]. . . . If the aggrieved person

does not request an administrative hearing

within the 35 days, the claim will be barred .

(emphasis supplied)

25. The statutory bar to a claim filed more than 35 day s

after the expiration of the 180-day time limit in Section

760.11(3) is not a jurisdictional bar to Petitioner's claim.

Rather, failure to comply with the 35-day filing requirement in

Section 760.11(7) admits a defense analogous to a statute of

limitations. Milano v. Moldmaster, Inc. , 703 So. 2d 1093, 1094-

1095 (Fla. 4th DCA 1997) reh. en banc clarification and

certification . Accord Joshua , 734 So. 2d at 1068; Adams , 727 So.

2d at 1139; Daugherty , 722 So. 2d at 288; Crumbie , 721 So. 2d at

1211; Kalkai , 717 So. 2d at 626.

26. Florida courts holding that noncompliance with

statutory filing requirements is a jurisdictional bar generally

do so on the basis of specific statutory language. Relying on

language in Section 194.171(6), for example, the Florida Supreme

Court has held that the 60-day filing requirement in Section

194.171(2) is a "jurisdictional statute of nonclaim." Markham v.

Neptune Hollywood Beach Club , 527 So. 2d 814, 815 (Fla. 1988).

Accord Wal-Mart Stores, Inc. v. Day , 742 So. 2d 408, 409 (Fla.

5th DCA 1999); Palmer Trinity Private School, Inc. v. Robbins ,

681 So. 2d 809 (Fla. 3d DCA 1996); Hall v. Leesburg Regional

Medical Center , 651 So. 2d 231 (Fla. 5th DCA 1995); Walker v.

Garrison , 610 So. 2d 716 (Fla. 4th DCA 1992); Markham v.

Moriarty , 575 So. 2d 1307 (Fla. 4th DCA 1991), cert. denied , 502

U.S. 968, 112 S. Ct. 440 (1991); Gulfside Interval Vacations,

Inc. v. Schultz , 479 So. 2d 776 (Fla. 2d DCA 1985), rev. denied ,

488 So. 2d 830 (Fla. 1986). See also Davis v. Macedonia Housing

Authority , 641 So. 2d 131, 132 (Fla. 1st DCA 1994) (the 60-day

filing requirement in Section 194.171(2) is a jurisdictional bar

to an action to contest loss of tax exemption for 1990). Cf.

Pogge v. Department of Revenue , 703 So. 2d 523, 525-526 (Fla. 1st

DCA 1997) (the 60-day filing requirement in Section 72.011(2) is

a jurisdictional bar to an action contesting the assessment of

taxes but was not a jurisdictional bar to an action for a refund

of taxes prior to 1991 when the legislature amended former

Section 72.011(6) to delete express language that Section 72.011

was inapplicable to refunds); Mikos v. Parker , 571 So. 2d 8, 9

(Fla. 2d DCA 1990) (the 60-day filing requirement in Section

194.171 was not a jurisdictional bar to a claim for refund of

taxes assessed in 1989). Compare City of Fernandina Beach v.

Page , 682 So. 2d 573 (Fla. 1st DCA 1996); Joyner v. Roberts , 642

So. 2d 826 (Fla. 1st DCA 1994); and Chihocky v. Crapo , 632 So. 2d

230 (Fla. 1st DCA 1994) (the failure to strictly comply with

statutory notice procedures may toll the running of the 60-day

filing requirement in Section 194.171(2)).

27. Federal courts generally view the filing requirements

in discrimination cases as statutes of limitation rather than as

jurisdictional prerequisites to filing suit. For example, 42

U.S.C. Section 2000e-5(f)(1) requires an aggrieved party to file

suit within 90 days after receipt of a right to sue letter from

the Equal Employment Opportunity Commission ("EEOC"). In

Espinoza v. Missouri Pacific Railroad Co. , 754 F.2d 1247, 1250

(5th Cir. 1985), the court held that the 90-day filing

requirement in 42 U.S.C. Section 2000e-5(f)(1) is not a

jurisdictional prerequisite to suit but is a statute of

limitations subject to the doctrine of equitable tolling.

28. The Su preme Court has adopted a similar construction of

the requirement in 42 U.S.C. Section 2000e-16(c) for an aggrieved

party to file suit within 30 days after receipt of a right to sue

letter from the EEOC. In Irwin v. Department of Veterans

Affairs , 498 U.S. 89, 92, 111 S. Ct. 453, 455 (1990), the Court

resolved a conflict between federal appellate courts over whether

a late-filed claim deprived federal courts of jurisdiction. In

Irwin , the Fifth Circuit Court of Appeals had held that federal

courts lacked jurisdiction over claims filed more than 30 days

after receipt of a right to sue letter. Irwin v. Department of

Veterans Affairs , 874 F.2d 1092 (5th Cir 1989). The holding by

the Fifth Circuit was in direct conflict with decisions in four

other courts of appeals. Boddy v. Dean , 821 F.2d 346, 350 (6th

Cir. 1987); Martinez v. Orr , 738 F.2d 1107, 1109 (10th Cir.

1984); Milam v. United States Postal Service , 674 F.2d 860, 862

(11th Cir. 1982); Saltz v. Lehman , 672 F.2d 207, 209 (D.C. Cir.

1982). The Supreme Court held that the 30-day filing requirement

is not jurisdictional but creates a "rebuttable presumption of

equitable tolling." Irwin , 498 U.S. at 95-96, 111 S. Ct. at 457.

Equitable Tolling

29. Florida courts have applied the doctrine of equitable

tolling to excuse an otherwise untimely initiation of an

administrative proceeding when four requirements are satisfied.

First, the filing requirement is not jurisdictional. Cf .

Environmental Resource Associates of Florida, Inc. v. State,

Department of General Services , 624 So. 2d 330 (Fla. 1st DCA

1993) (Judge Zehmer dissenting, in relevant part, because the 21-

day time limit in that case was "not jurisdictional"); Castillo

v. Department of Administration, Division of Retirement , 593 So.

2d 1116 (Fla. 2d DCA 1992) (remanding the case for equitable

considerations related to the "not jurisdictional" 21-day period

for challenging agency action). Second, the delay is a minor

infraction of the filing requirement. Stewart v. Department of

Corrections , 561 So. 2d 15 (Fla. 4th DCA 1990)(applying the

doctrine to excuse a request for hearing that was one day late);

Environmental Resource , 624 So. at 332-333 (Judge Zehmer's

dissenting opinion found that the delay was a minor infraction).

Third, the delay does not result in prejudice to the other party.

Stewart , 561 So. 2d at 16. Fourth, the delay is caused by the

affected party's being misled or lulled into inaction, being

prevented in some extraordinary way from asserting his or her

rights, or having timely asserted his or her rights mistakenly in

the wrong forum. Machules v. Department of Administration , 523

So. 2d 1132, 1133-1134 (Fla. 1988). See Burnaman, R., "Equitable

Tolling in Florida Administrative Proceedings," 74 Fla. B.J. 60

(February 2000).

30. The f irst requirement for equitable tolling is the only

requirement that is satisfied in this case. The 35-day filing

requirement in Section 760.11(7) is not a jurisdictional

prerequisite to Petitioner's claim. Irwin , 498 U.S. at 92, 111

S. Ct. at 455; Milano , 703 So. 2d at 1094-1095.

31. The second requirement for equitable tolling is not

satisfied in this case. The delay caused by the failure to

timely file a request for hearing was not a minor infraction but

was significant and lasted 1,185 days. Vantage Healthcare

Corporation v. Agency for Health Care Administration , 687 So. 2d

306, 307 (Fla. 1st DCA 1997) (refusing to allow filing of letters

of intent one day late in certificate of need process);

Environmental Resource , 624 So. 2d at 331 (court refused to

reverse a final order denying a hearing where the request for

hearing was four days late).

32. The third requirement of the doctrine of equitable

tolling is not satisfied in this case. The delay sought by

Petitioner would prejudice Respondent by adding 1,185 days to the

580-day time limit prescribed by the legislature in Section

760.11(1)(365 days), Section 760.11(3)(180 days), and Section

760.11(7)(35 days).

33. Petitioner submitted no evidence that the fourth

requirement of the doctrine of equitable tolling was satisfied in

this case. Petitioner failed to show that the delay in filing

the request for hearing was the result of being misled or lulled

into inaction, of being prevented in some extraordinary way from

asserting his rights, or of having timely asserted his rights

mistakenly in the wrong forum. See , e.g. , Perdue v. TJ Palm

Associates, Ltd. , 24 Fla. L. Weekly D1399 (Fla. 4th DCA June 16,

1999) (refusing to remand a denial of a request for hearing where

the recommended order contained findings of fact and conclusions

of law supporting the denial of an untimely request for hearing).

Petitioner did not request a hearing earlier because he did not

have the form entitled Petition for Relief.

34. Even if the evidence showed that P etitioner had been

lulled into inaction, Petitioner failed to show that he was

lulled into inaction by Respondent. It is mere supposition to

conclude that Petitioner was lulled into inaction by the failure

of the Commission to issue a notice of determination within the

180-day time limit prescribed in Section 760.11(3). Even if the

evidence supported such a finding, the Commission is not a named

party to this proceeding.

35. The doctrine of equitable tolling generally has been

limited to cases in which one party has been lulled into inaction

or prevented from asserting his or her rights by the acts or

omissions of the party's adversary. In Irwin , for example, the

Court held that the doctrine of equitable tolling applied to an

action brought by a discharged government employee against the

government. The Court noted that the doctrine of equitable

tolling generally was limited to situations where a complainant

was induced or tricked by an adversary's misconduct into allowing

a filing deadline to pass. Irwin , 498 U.S. at 96, 111 S. Ct. at

455.

36. The Florida Supreme Court has not limited the doctrine

of equitable tolling to cases in which a party is tricked or

induced by the misconduct of an adversary into allowing a filing

deadline to pass. The Florida Supreme Court has expanded the

doctrine to reach cases where a party allows a filing deadline to

pass through the party's own inadvertence or mistake of law. In

Machules , 523 So. 2d at 1132, the court held that a discharged

agency employee who chose to pursue a claim through union

grievance, and thereby allowed the time limits for requesting a

hearing to lapse, did not waive the right to a hearing.

37. In Machules , the court's expansion of equitable tolling

to inadvertence and mistake of law involved a state agency that

was both a named party and an adversary to the discharged agency

employee. The decision in Machules did not involve a state

agency that was a non-party in a case such as this in which two

or more named parties are adversaries and who are the real

parties in interest. Machules , 523 So. 2d at 1132.

38. Florida appellate courts have limited the doctrine of

equitable tolling in administrative cases to those involving

state agencies that are adversaries to substantially affected

parties. See , e.g. , Mathis v. Florida Department of Corrections ,

726 So. 2d 389 (Fla. 1st DCA 1999), the court applied (state

agency was adversary in claim for back pay by agency's employee);

Avante, Inc. v. Agency for Health Care Administration , 722 So. 2d

965 (Fla. 1st DCA 1998) (state agency was adversary in action to

recover Medicaid payments); Unimed Laboratory, Inc. v. Agency for

Health Care Administration , 715 So. 2d 1036 (Fla. 3d DCA

1998)(state agency was adversary in action to recover Medicaid

payments); Haynes v. Public Employees Relations Commission , 694

So. 2d 821 (Fla. 4th DCA 1997) (state agency was adversary in

employee dismissal action); Phillip v. University of Florida , 680

So. 2d 508 (Fla. 1st DCA 1996) (state agency was adversary in

employee dismissal action); Abusalameh v. Department of Business

Regulation , 627 So. 2d 560 (Fla. 4th DCA 1993)(state agency was

adversary in license revocation proceeding); Environmental

Resource , 624 So. 2d at 331 (state agency that was adversary in

contract termination case did nothing to cause four-day delay in

filing request for hearing); Castillo , 593 So. 2d at 1117 (state

agency was adversary in beneficiary's claim for retirement

benefits); Department of Environmental Regulation v. Puckett Oil

Co. , 577 So. 2d 988(Fla. 1st DCA 1991) (state agency was

adversary in action seeking reimbursement of cleanup costs);

Stewart , 561 So. 2d 15 (state agency was adversary in employee

dismissal action).

39. Florida courts have been reluctant to extend the

doctrine of equitable tolling to administrative cases in which a

state agency is only a nominal party rather than an adversary to

the affected party. In Vantage Healthcare , 687 So. 2d at 307, a

state agency awarded a certificate of need to an applicant after

allowing the applicant to file its letter of intent one day late.

The agency applied the doctrine of equitable tolling to extend

the filing deadline by one day. The court held that the doctrine

of equitable tolling does not apply to the certificate of need

application process because the application process:

. . . is not comparable to . . . judicial or

quasi-judicial proceedings. We have found no

authority extending the doctrine of equitable

tolling to facts such as in the present case.

Cf . Perdue , 1999 WL 393464 (Fla. 4th DCA 1999) (refusing to apply

the doctrine of equitable tolling to extend the deadline for

challenging a notice of intent to issue a conceptual permit

approving overall master project design).

40. Unlike the state agency in Vantage Healthcare , the

Commission is not a party to this proceeding. Assuming arguendo

the evidence showed that the Commission's failure to issue a

written notice within the 180-day time limit in Section 760.11(3)

lulled Petitioner into inaction, application of the doctrine of

equitable tolling to the facts in this case would extend the

doctrine to administrative proceedings in which a party is lulled

into inaction by the inaction of a non-party.

Clear Point of Entry

41. The clear point of entry doctrine is a judicial

doctrine that requires state agencies to provide parties who are

substantially affected by proposed agency action with a clear

point of entry to formal or informal proceedings authorized in

Chapter 120. The clear point of entry doctrine was first

enunciated in Capeletti Brothers, Inc. v. State, Department of

Transportation , 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert.

denied , 368 So. 2d 1374 (Fla. 1979). Since 1979, the doctrine

has been followed by Florida courts. See , e.g. , Environmental

Resource , 624 So. 2d at 331-332 (concurring opinion of Judge

Ervin); Florida League of Cities, Inc. v. Administration

Commission , 586 So. 2d 397, 413 (Fla. 1st DCA 1991). See also

Southeast Grove Management, Inc. v. McKinness , 578 So. 2d 883

(Fla. 1st DCA 1991); Capital Copy, Inc. v. University of Florida ,

526 So. 2d 988 (Fla. 1st DCA 1988); Lamar Advertising Company v.

Department of Transportation , 523 So. 2d 712 (Fla. 1st DCA 1988);

City of St. Cloud v. Department of Environmental Regulation , 490

So. 2d 1356 (Fla. 5th DCA 1986); Henry v. Department of

Administration, Division of Retirement , 431 So. 2d 677 (Fla. 1st

DCA 1983). See also Shirley S., "In Search of a Clear Point of

Entry," 68 Fla. B.J. 61 (May 1994).

42. An agency provides a clear point of entry to an

affected party by satisfying several fundamental requirements.

First, the agency must notify the affected party of the proposed

agency action. In addition, the notice must inform the affected

party of the right to request an administrative hearing pursuant

to Section 120.57 and inform the affected party of the time

limits within which the party must file a request for hearing.

If the affected party fails to file a request for hearing within

the time prescribed in the clear point of entry, the affected

party waives the right to request a hearing. See , e.g. ,

Environmental Resource , 624 So. 2d at 331-332 (citing Capeletti

Brothers , 368 So. 2d at 348).

43. The evidence in this case shows that the Commission

satisfied the requirements of the clear point of entry doctrine

when the Commission issued a Notice of Determination: No Cause on

July 14, 1999. On August 13, 1999, Petitioner requested an

administrative hearing within 35 days of the determination of

reasonable cause by the Commission.

44. The failure of the Commission to act within the time

prescribed in Section 760.11(3) raises at least four issues. The

first issue is whether Sections 760.11(3), (7) and (8) provide an

aggrieved party with a clear point of entry in the absence of

agency action. If so, the second issue is whether uncertainty,

if any, created by agency inaction can operate to negate the

clear point of entry provided by statute. The third issue is

whether the clear point of entry doctrine operates any

differently in cases in which the state agency is neither an

adversary of the affected party nor a nominal party. If the

doctrine does apply with equal force to such cases, the fourth

issue is whether the inaction of a non-party can effectively

enlarge statutes of limitation intended, in part, to protect the

affected party's adversary.

45. Sections 760.11(3), (7), and (8) provide a clear point

of entry by notifying an aggrieved party that a request for an

administrative hearing must be filed within 35-days of the

earlier of: the determination of reasonable cause; or the 180-day

time limit prescribed in Section 760.11(3). If the Commission

fails to act within 180 days, the 35-day filing requirement in

Section 760.11(7) begins to run immediately after the 180-day

time limit in Section 760.11(3). Cf. Joshua , 734 So. 2d at

1068); Adams , 727 So. 2d at 1139; Daugherty , 722 So. 2d at 288;

Crumbie , 721 So. 2d at 1211; Kalkai 717 So. 2d at 626. Any other

construction is unreasonable. Milano , 703 So. 2d at 1093.

46. Agency action taken after the 180-day time limit in

Section 760.11(3) is neither statutorily authorized nor

statutorily required as a prerequisite of the 35-day filing

requirement in Section 760.11(7). In the absence of agency

action by the Commission, Section 760.11(8) authorizes an

aggrieved party to proceed under Section 760.11(4) as if the

Commission had issued a notice of determination within the 180-

day time limit in Section 760.11(3).

47. The inaction of the Commission cannot enlarge, modify,

or contravene the terms of a statute. An agency cannot impose by

inaction or other practice a requirement not found in a statute

or otherwise enlarge, modify, or contravene the terms of a

statute. Sections 120.52(8)(c) and 120.68(7)(e)4. See also

DeMario , 648 So. 2d at 213-214 (agency lacked authority to impose

time requirement not found in statute); Booker Creek , 534 So. 2d

at 423. If an agency rule or practice conflicts with a statute,

the statute prevails. Hughes , 710 So. 2d at 685; Johnson 709 So.

2d at 624; A Duda & Sons, 608 So. 2d at 884; Wingfield

Development , 581 So. 2d at 197.

48. If the Commission is concerned that its rules or

practices may cloud the clear point of entry provided in Sections

760.11(3), (7), and (8), the Commission has no authority to

enlarge the 180-day time limit in Section 760.11(3). However,

the Commission does have authority to issue a written notice of

rights to the parties within the time authorized in Section

760.11(3).

49. Assuming arguendo that the requirements of the clear

point of entry doctrine are not satisfied in the statutory notice

provided in Sections 760.11(3), (7), and (8), the issue is

whether the clear point of entry doctrine operates any

differently in cases such as this one in which the state agency

is neither an adversary to the aggrieved party nor a nominal

party. Courts have most frequently applied the clear point of

entry doctrine in cases involving a state agency that is an

adversary to the affected party. See , e.g. , Florida League of

Cities v. Administration Commission , 586 So. 2d 397, 413 (Fla.

1st DCA 1991); Capital Copy, Inc. v. University of Florida , 526

So. 2d 989 (Fla. 1st DCA 1988); Lamar Advertising Company v.

Department of Transportation , 523 So. 2d 712 (Fla. 1st DCA 1988);

City of St. Cloud v. Department of Environmental Regulation , 490

So. 2d 1356, 1358 (Fla. 1st DCA 1986); Henry v. State, Department

of Administration , 431 So. 2d 677, 680 (Fla. 1st DCA 1983);

Manasota 88, Inc. v. Department of Environmental Regulation , 417

So. 2d 846 (Fla. 1st DCA 1982); Sterman v. Florida State

University Board of Regents , 414 So. 2d 1102 (Fla. 1st DCA 1982).

50. Less frequently, courts have applied the clear point of

entry doctrine in cases involving a state agency that is a

nominal party but not an adversary to the affected party. In a

certificate of need case, for example, the court held that

failure of the state agency to notify competing hospitals that

the hospital-applicant had submitted a revised application

denied competing hospitals of a clear point of entry. NME

Hospitals, Inc. v. Department of Health and Rehabilitative

Services , 492 So. 2d 379, 384-385 (Fla. 1st DCA 1986) (opinion on

Motion for rehearing), reh. denied . In another certificate of

need case, the court refused to extend the time limits in a clear

point of entry for an applicant to file its letter of intent.

Vantage Healthcare , 687 So. 2d at 308 (refusing to apply

equitable tolling to the certificate of need process).

51. At least one court has applied the clear point of entry

doctrine in a case in which the state agency was neither an

adversary to the affected party nor a nominal party. In a

proceeding between a fruit dealer and the grower, the court held

that the failure of the dealer to request a hearing within the

time limit prescribed in a statutorily required agency notice

waived the dealer's right to a de novo hearing. Southeast Grove

Management, Inc. v. McKiness , 578 So. 2d 883, 886 (Fla. 1st DCA

1991).

52. Unlike the statutory requirement for agency notice in

Southeast , nothing in Section 760.11 requires agency action after

180 days as a prerequisite to the 35-day filing requirement in

Section 760.11(7). If the Commission fails to complete its

investigation and issue a notice of rights within 180 days,

Section 760.11(8) authorizes Petitioner to proceed under Section

760.11(4) as if the Commission had acted within the 180-day time

limit.

53. The Commission can accelerate the point at which the

35-day filing requirement begins to run by issuing a notice of

determination in less than 180 days. However, the Commission has

no statutory authority to delay the point at which the 35-day

requirement begins to run by acting beyond the 180-day time limit

in Section 760.11(3) or by failing to act altogether.

Equitable Estoppel

54. The doctrin e of equitable estoppel is distinguishable

from the doctrine of equitable tolling. The latter doctrine is

concerned with the point at which a limitations period begins to

run and with the circumstances in which the running of the

limitations period may be suspended. Morsani v. Major League

Baseball , 739 So. 2d 610, 614-615 (Fla. 2d DCA 1999). Equitable

estoppel comes into play only after the limitations period has

run and addresses the circumstances in which a party is estopped

from asserting the statute of limitations as a defense to an

admittedly untimely action. Id. See also Ovadia v. Bloom , 2000

WL 227961 (Fla. 3d DCA March 1, 2000).

55. Like equitable tolling, equitable estoppel can be

applied to a state agency where the state agency is a named party

and an adversary to the affected party. Tri-State Systems, Inc.

v. Department of Transportation , 500 So. 2d 212, 215 (Fla. 1st

DCA 1986). A party must specifically plead equitable estoppel in

administrative cases. University Community Hospital v.

Department of Health and Rehabilitative Services , 610 So. 2d

1342, 1346 (Fla. 1st DCA 1992). Equitable estoppel does not

apply in cases where the delay is caused by a mistake of law.

Council Brothers, Inc. v. City of Tallahassee , 634 So. 2d 264,

266 (Fla. 1st DCA 1994); Dolphin Outdoor Advertising v.

Department of Transportation , 582 So. 2d 709, 710 (Fla. 1st DCA

1991); Tri-State , 500 So. 2d 216. Equitable tolling may apply in

cases where the delay is caused by mistake of law or

inadvertence. See , e.g. , Machules , 523 So. 2d at 1134 (pursuing

claim through union grievance procedure instead of requesting

hearing tolls the clear point of entry).

56. Petitioner argues that he is not an attorney, not

familiar with applicable statutes and rules, and that this case

should be held in abeyance until the Florida Supreme Court rules

in the Joshua case. Petitioner is not subject to a lesser

standard of conduct than a licensed attorney. Petitioner has

constructive knowledge of applicable statutes and rules. A

contrary rule would insulate a party from the consequences of

applicable time limits whenever a party chose lay representation.

Barrett v. City of Margate , 743 So. 2d 1160, 1163 (Fla. 4th DCA

1999); Pearson v. Pefkarou , 734 So. 2d 551, 551 (Fla. 3d DCA

1999); Jancyn Manufacturing Corporation v. Florida Department of

Health , 24 Fla. L. Weekly D2232, 2233 (Fla. 1st DCA 1999); Carr

v. Grace , 321 So. 2d 618 (Fla. 3d DCA 1975), cert. denied , 348

So. 2d 945 (Fla. 1977). See also Burke v. Harbor Estate

Associates, Inc. , 591 So. 2d 1034, 1037-1038 (Fla. 1st DCA 1991).

Accord Dolphins Plus v. Residents of Key Largo Ocean Shores , 598

So. 2d 324 (Fla. 3d DCA 1992).

57. Denial of an abeyance does not deprive Petitioner of an

adequate remedy at law. Petitioner can appeal the final order of

the referring agency.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

dismissing this proceeding as barred by Section 760.11(7).

DO NE AND ENTERED this 6th day of June, 2000, in Tallahassee,

Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of June, 2000.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road, Building F

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road, Building F

Tallahassee, Florida 32303-4149

Luis F. Hernandez

1116 Golden Gate Avenue

Orlando, Florida 32808

Charles Williams, Jr., Esquire

Scott A. Livingston, Esquire

Williams and Davis, P.A.

Suite 1220, Suntrust Center

Post Office Box 1831

200 South Orange Avenue

Olando, Florida 32802-1831

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