Environmental Resource Associates of Florida, Inc. v. State, Dept. of General Services

• Decision Date: 03 September 1993
• Docket Number: No. 92-1171,92-1171
• Citation: 624 So.2d 330
• Parties: 18 Fla. L. Weekly D1975 ENVIRONMENTAL RESOURCE ASSOCIATES OF FLORIDA, INC., Appellant, v. STATE of Florida, DEPARTMENT OF GENERAL SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 330

624 So.2d 330

18 Fla. L. Weekly D1975

ENVIRONMENTAL RESOURCE ASSOCIATES OF FLORIDA, INC., Appellant, v. STATE of Florida, DEPARTMENT OF GENERAL SERVICES, Appellee.

No. 92-1171.

District Court of Appeal of Florida,

First District.

Sept. 3, 1993.

Rehearing Denied Oct. 13, 1993.

Richard M. Haber and Robert L. McDonald, Jr. of Cramer, Haber, McDonald & LeVine, P.A., Tampa, for appellant.

Stephen S. Mathues, Staff Atty., Dept. of General Services, Tallahassee, for appellee.

BARFIELD, Judge.

Appellant seeks review of an agency denial of an administrative hearing for the reason that appellant did not timely file a request for a hearing. Appellant contends that its late filed request should be accepted on "equitable principles," since late filing is not jurisdictional and the facts do not evidence an intent by appellant to waive its right to a hearing.

The appellee sent notice to appellant of intent to terminate its contract and advised appellant of its right to a hearing if request was filed with the appellee within 21 days. The notice was sent by certified mail and received by appellant on March 5, 1992. Appellant sent a petition for hearing dated March 25, 1992, by certified mail postmarked March 26, 1992, to appellee which received the petition for filing March 30, 1992. There are no other facts relevant to this decision.

Appellant contends that its preparation and mailing of a petition for hearing within the 21-day period evidences its intent not to waive its right to hearing, and that equitable tolling should delay the filing period so that its petition would be considered timely filed. We disagree that principles of equity should enlarge the time for filing in this case and affirm.

The Supreme Court has laid the predicate for applying the tolling doctrine in administrative cases:

Generally, the tolling doctrine has been applied when 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.

Machules v. Department of Administration, 523 So.2d 1132, 1134 (Fla.1988) (citations omitted). The court concluded:

We find the doctrine of equitable tolling applicable under the facts of this case for two reasons: petitioner was misled or lulled into inaction by his Employer, and his appeal to DOA raised the identical issue raised in the original timely claim filed in the wrong forum.

Id. at 1134.

There is nothing extraordinary in the failure to timely file in this case. Quite to the contrary, the problem in this case is the too ordinary occurrence of a party's attorney failing to meet a filing deadline.

The final order of the Department of General Services is AFFIRMED.

ERVIN, J., concurs, with opinion.

ZEHMER, C.J., dissents, with opinion.

ERVIN, Judge, concurring.

In my judgment, the facts in this case do not dictate the application of the judicial rules stated in either Department of Environmental Regulation v. Puckett Oil Co., 577 So.2d 988 (Fla. 1st DCA 1991), or Machules v. Department of Administration, 523 So.2d 1132 (Fla.1988), both of which Chief Judge Zehmer cites in his dissenting opinion. Puckett involved the reversal of a summary final order that had been entered on the ground that the agency failed to respond, as required by administrative rule, within 20 days after the filing of a petition seeking an award of costs and fees to a prevailing small business party. In Puckett, we noted that if the Division of Administrative Hearings (DOAH) intended, in adopting the rule, to establish a jurisdictional time limit for filing a responsive pleading to such petitions, DOAH had acted in excess of any express or reasonably implied delegated legislative authority, as no statute authorized such a construction. In Machules, because the petitioner had been misled or lulled into inaction by the affirmative acts of his employer, it was held that the doctrine of equitable tolling should be applied in order to permit the employee to seek administrative review of his termination.

In contrast to the holdings in the above cases, the only issue before us which I consider proper for resolution is whether the appellant was provided by the agency's notice with a clear point of entry into the administrative proceeding. If it was, but it failed to avail itself of this opportunity, appellant must be considered to have waived its right to a hearing.

The clear-point-of entry rule was first articulated by this court in Capeletti Brothers v. Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979), in the following terms:

[A]n agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57. Uncertainty in an agency's rules and practices on this point usually results, as is shown by our experience in the past several months, in a petition for review followed by an agency motion to dismiss on the alternative grounds that the agency has not yet taken final action or that, if it has done so, the request for Section 120.57 proceedings and the review petition are too late.

This court and other courts have applied the above rule in different factual contexts, some holding that the notice provided by the agency was sufficient, and others that it was not. See, e.g., Florida League of Cities, Inc. v. Administration Comm'n, 586 So.2d 397 (Fla. 1st DCA 1991); Southeast Grove Management Inc. v. McKiness, 578 So.2d 883 (Fla. 1st DCA 1991); Capital Copy, Inc. v. University of Fla., 526 So.2d 988 (Fla. 1st DCA 1988); Lamar Advertising Co. v. Department of Transportation, 523 So.2d 712 (Fla. 1st DCA 1988); City of St. Cloud v. Department of Envtl. Reg., 490 So.2d 1356 (Fla. 5th DCA 1986); Henry v. Department of Admin., Div. of Retirement, 431 So.2d 677 (Fla. 1st DCA 1983).

I consider the essential facts in the present case to be practically on all fours with those in Lamar Advertising Co. v. Department of Transportation, 523 So.2d 712 (Fla. 1st DCA 1988), wherein this court held that although the agency's notice denying a sign permit did not track the precise language in the department's rule concerning such denials, the notice "clearly informed appellant that the application had been denied and that appellant had the right to request a Sec. 120.57 hearing within 30 days of the date of the notice." Id. at 713. We thereupon concluded that the applicant had been provided a clear point of entry to administrative review, which had been waived by its noncompliance with the limitation period stated in the notice.

In the instant case, the notice informed appellant that any request for an administrative hearing "must be filed with this department within twenty-one (21) days of receipt of this letter." As such, the notice was in reasonable compliance with Florida Administrative Code Rule 60-4.012, which states that the date the request is filed shall be the date which it is received by the agency. By using the term "filed," rather than "served," the notice unambiguously advised appellant that any request for hearing must be received by the agency within the time specified following the appellant's receipt of the notice of the letter terminating appellant's contract. The term "filed," when used to denote a limitation period, is a legal term generally understood to mean that the agency must receive the matter required no later than the date stated. Cf. Bank of Port St. Joe v. Department of Banking & Fin., 362 So.2d 96 (Fla. 1st DCA 1978).

Finally, the language used in...