JANCYN MFG. v. State, Dept. of Health, 98-578.

• Decision Date: 22 September 1999
• Docket Number: No. 98-578.,98-578.
• Citation: 742 So.2d 473
• Parties: JANCYN MANUFACTURING CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, Appellee.
• Court: Florida District Court of Appeals

742 So.2d 473

JANCYN MANUFACTURING CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, Appellee.

No. 98-578.

District Court of Appeal of Florida, First District.

September 22, 1999.

J. Robert Griffin, Tallahassee; Michael Alan Dailey of Gillen, Daily & Cromwell, LLC, Atlanta, Georgia, for appellant.

Amy N. Jones, Deputy General Counsel, and Patricia A. Matthews, Senior Attorney, Department of Health, Office of the General Counsel, Tallahassee, for appellee.

VAN NORTWICK, J.

Jancyn Manufacturing Corporation appeals a final order of the Florida Department of Health, the appellee, which denied Jancyn an administrative hearing under chapter 120, Florida Statutes. The Department's ruling was based on its conclusion that Jancyn had waived its right to a hearing by its failure to request a hearing in a timely manner following the Department's entry of a stop sale order which required Jancyn to remove its septic tank cleaning product, "Drainz," from Florida markets. Jancyn argues that the Department erred in failing to rule that the time for filing a petition for an administrative hearing had been equitably tolled by what Jancyn describes as "informal negotiations" between Jancyn and the Department. Because we find that the record on appeal does not support the application of this equitable doctrine, we affirm.

By a stop sale order issued on July 13, 1993, the Department ordered Jancyn to remove Drainz from the Florida market because it contained materials banned under Florida law. On January 10, 1996, the parties entered into a settlement agreement whereby Jancyn agreed to remove certain compounds from the product before further distribution in Florida. A second stop sale order was entered by the Department on June 18, 1997, on the grounds that the product was found again to contain certain banned substances and because the product was being distributed in violation of the 1996 settlement agreement. In the June 1997 stop sale order, Jancyn was advised of its right to a formal administrative hearing under chapter 120, Florida Statutes.

On August 8, August 15, October 6 and October 15, 1997, Jancyn, through counsel, requested and obtained extensions of the time within which Jancyn must "remove `Drainz' from sale in Florida or ... file initial pleadings regarding the stop sale order received by Jancyn on June 23, 1997." Jancyn's request of October 27, 1997 provided further:

As you know, the parties met on August 13, and reached a conceptual agreement as to the resolution of this matter. At the meeting, Jancyn agreed to provide DOH with some additional information to facilitate the parties' conceptual agreement.

Jancyn provided the requested information to DOH on September 5 and, at that time, DOH requested 30 days to review the information. Subsequently, DOH requested additional information from Jancyn regarding the chemical composition of OPO-140. That information, in the form of a Material Safety Data Sheet (MSDS) from Jancyn's supplier is being provided to you today under separate cover. The purpose of the extension of time that we are requesting in this letter is to give DOH an additional twenty (20) days to complete its review.

On October 28, 1997, the Department requested additional information concerning the chemical composition and concentration of certain ingredients in Drainz. On October 30, 1997, counsel for Jancyn advised the Department in writing that he had withdrawn from representation of Jancyn. Counsel also advised:

We have provided Mr. Budd [President of Jancyn] [with] DOH's request for additional information dated October 28, 1997, and advised him of the importance of promptly providing the requested information. Mr. Budd is also aware that Jancyn requested an additional extension of time through November 17, 1997, and that no written response has yet been received.

By a fax dated November 3, 1997, Budd provided a response to the Department's October 28 letter. Budd's fax describes the chemical properties of certain ingredients in Drainz; but Budd does not request a further extension of time for the filing of a petition for an administrative hearing. No further communication occurred between Jancyn and the Department until the issuance of the final order.

The Department issued a final order on January 12, 1998. The final order contains several findings of fact, including the following:

15. Finally, on October 27, 1997 [after granting repeated requests for extensions of time], the Department granted Jancyn an extension of time, until November 17, 1997, to either remove "Drainz" from sale in Florida or to file initial pleadings regarding the stop sale issued by the Department. The Department granted this request for [an] extension of time.

16. On October 30, 1997, Jancyn's counsel informed the Department that it would no longer represent Jancyn in this matter and that Mr. Richard Budd, President of Jancyn, was aware that an

...