State Dept. of Environmental Regulation v. Puckett Oil Co., Inc.

• Decision Date: 03 April 1991
• Docket Number: No. 90-1426,90-1426
• Citation: 16 Fla. L. Weekly 926,577 So.2d 988
• Parties: 16 Fla. L. Weekly 926 STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. PUCKETT OIL COMPANY, INC., Appellee.
• Court: Florida District Court of Appeals

Page 988

577 So.2d 988

16 Fla. L. Weekly 926

STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. PUCKETT OIL COMPANY, INC., Appellee.

No. 90-1426.

District Court of Appeal of Florida First District.

April 3, 1991.

E. Gary Early, Asst. General Counsel, for State of Fla., Dept. of Environmental Regulation, appellant.

Robert D. Fingar, of Huey, Guilday, Kuersteiner & Tucker, P.A., Tallahassee, for appellee.

ERVIN, Judge.

The Department of Environmental Regulation (DER or department) appeals from a summary final order entered by the Division of Administrative Hearings (DOAH or division), assessing against it attorney's fees and costs, pursuant to Section 57.111, Florida Statutes (1989), in favor of Puckett Oil Company, Inc. (Puckett), as a prevailing small business party. We reverse and remand for further proceedings.

Following this court's decision reversing DER's order denying Puckett's eligibility to apply for reimbursement pollution cleanup costs, see Puckett Oil Co. v. Department of Envtl. Reg., 549 So.2d 720 (Fla. 1st DCA 1989), Puckett filed a petition with the DOAH seeking an award of costs and fees as a prevailing small business party. Contrary to the provisions of Florida Administrative Code Rule 22I-6.035(5)(a), requiring that the agency file its response within twenty days after the filing of a petition, DER filed its response twenty-four days later. On the same date, Puckett filed a motion requesting that a summary final order be entered due to DER's failure to file a responsive pleading within the time required by the rule, and it later moved to strike DER's response to its petition because of the untimely filing. On April 16, 1990, the hearing officer entered a summary final order awarding $15,000 in attorney's fees and costs to Puckett. Thereafter, on May 8, 1990, DER moved to vacate the summary final order and submitted an affidavit alleging, inter alia, that the late filing of its response was a result of counsel's mistaken belief that, because Puckett's petition was served upon him by mail, he was entitled to an additional five days' mailing time pursuant to Florida Administrative Code Rule 22I-6.002. Before a ruling was obtained on DER's motion to vacate, the agency filed its timely appeal from the summary final order, and an order was subsequently entered granting Puckett's request to dismiss the motion to vacate on the ground that the filing of the notice of appeal divested the hearing officer of jurisdiction to entertain the motion.

Appellant's primary contention on appeal is that the hearing officer abused his discretion in refusing to vacate the summary final order because the record discloses that its late-filed response was the result of excusable neglect. In support of this argument, it relies upon cases in the civil sector construing the excusable neglect standard applicable to default judgments under Florida Rule of Civil Procedure 1.540(b). Appellee answers, arguing, among other things, that the doctrine of excusable neglect does not pertain to administrative proceedings, because it is not provided for in the Administrative Procedure Act (APA).

We are of the view that it is unnecessary to apply the doctrine of excusable neglect to the case at bar. We agree that the hearing officer correctly ruled he had no jurisdiction to consider the motion to vacate the summary final order once the notice of appeal was filed. Hence he had, under the circumstances, no opportunity to consider appellant's defense of excusable neglect. Cf. Taylor v. Department of Professional Reg., Bd. of Medical Examiners, 520 So.2d 557 (Fla.1988) (agencies possess inherent authority to correct clerical errors and errors arising from mistake or inadvertence if a request for correction is made within thirty days from the entry of the amended order). Accordingly, we consider only the propriety of the entry of the summary final order.

It is not clear from the order whether it was issued on the ground that the hearing officer considered that he no longer had jurisdiction to entertain the response filed by the agency once twenty days had expired from the filing of the petition for costs and fees, or whether it was entered on the basis that he was granting the then-pending motion to strike. On either theory, the summary final order was erroneous. One of the reasons given in the order was that the rule requiring a response to be filed within twenty days from the filing of a petition employed the word "shall," ¹ which, in the hearing officer's judgment, was mandatory. The hearing officer continued that DER's failure to timely file a responsive pleading constituted a waiver of the agency's opportunity to dispute the petitioner's allegations and thus rendered the petition uncontroverted. Consequently, the hearing officer concluded that there were no genuine issues of material fact as to the allegations asserted in the petition and the supporting affidavits, thus requiring entry of the summary final order.

Clearly rule 22I-6.035(5)(a)'s use of the mandatory term "shall" does not mean that if a response is not filed within the time specified in the rule, the hearing officer no longer possesses jurisdiction to consider a response to a petition for costs and fees. If a provision, though mandatory in terms, is designed simply to further the orderly conduct of business, such provision is generally deemed directory only. See Reid v. Southern Dev. Co., 52 Fla. 595, 42 So. 206 (1906). We do not consider that an untimely response filed in an administrative proceeding should be treated any differently from an untimely answer or other response filed in a civil proceeding. Although the APA does not specifically provide for the entry of default judgments for failure of a party to serve or file a pleading within the prescribed time, or for relief from default judgments, ² we consider, for the reasons stated infra, that the DOAH has discretion to extend the time for the filing of a responsive pleading, notwithstanding that the particular rule governing the filing of such pleading employs mandatory language as to the time required for a response.

We are of the view that if it was DOAH's intent in adopting rule 22I-6.035(5)(a) to establish a jurisdictional time limitation upon the filing of an agency's responsive pleading to a petition for fees and costs, DOAH has acted in excess of any express or reasonably implied delegated legislative authority. It is well recognized that the powers of administrative agencies are measured and limited by the statutes or acts in which such powers are expressly granted or implicitly conferred. Department of Professional Reg., Bd. of Medicine v. Marrero, 536 So.2d 1094 (Fla. 1st DCA 1988), review denied, 545 So.2d 1360 (Fla.1989); Florida Dep't of Corrections v. Provin, 515 So.2d 302 (Fla. 1st DCA 1987); Hall v. Career Serv. Comm'n, 478 So.2d 1111 (Fla. 1st DCA 1985); 1 Am.Jur.2d Administrative Law Sec. 73 (1962). In Machules v. Department of Admin., 523 So.2d 1132 (Fla.1988), the question before the Florida Supreme Court was whether the failure of an employee to file an administrative appeal within twenty days from his employer's determination that he had abandoned his position, as required by Florida Administrative Code 22A-7.10(2), was jurisdictional. In approving Judge Zehmer's dissenting opinion, the supreme court agreed "that the 20-day appeal period is not jurisdictional in the sense that failure to comply is an absolute bar to appeal but is more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling." Machules, 523 So.2d at 1133 n. 2.

Similarly, in the present case, we find no statutory authority, either expressly or reasonably implied therefrom, empowering DOAH to set a jurisdictional time limitation on the right of an agency to respond to a petition for fees and costs. To the contrary, we consider that the division's power to permit a late-filed response is reasonably implied from the very statutes that rule 22I-6.035 referenced as authorizing its adoption: Section 120.57, Florida Statutes (1989), specifically subsection (1)(b)4, authorizing parties "to respond, to present evidence and argument on all issues," and sections 57.111(4)(c) and (d), allowing a state agency against which a small business party has prevailed to oppose an application for attorney's fees and costs by affidavit, and requiring the hearing officer to conduct an evidentiary hearing on the application. Clearly the two statutes, which the rule was designed to implement, imply that the agency shall be given a fair opportunity to defend against an application for fees and costs. We find nothing in the statutes reasonably suggesting that if an agency fails to comply with the time limitations required for its response, a summary final order, regardless of any mitigating circumstances, must thereafter be entered.

While the hearing officer did not explicitly rule on the appellee's pending motion to strike the agency's tardily filed response, it is conceivable that the summary final order may have been so motivated due to the hearing officer's reference in the order to the following earlier orders of DOAH: Heisler v. Department of Professional Reg., Constr. Indus. Licensing Bd., 11 F.A.L.R. 3309 (Fla.Div.Admin. Hearings 1989); Department of Professional Reg., Bd. of Landscape Architecture v. Webster, 11 F.A.L.R. 3016 (Fla.Div.Admin. Hearings 1988); David's Pharmacy v. Department of Health & Rehab. Servs., 11 F.A.L.R. 72 (Fla.Div.Admin. Hearings 1988), in which the division entered orders granting petitions for fees and costs on facts...