MANASOTA-88, INC., APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, APPELLEE
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Manasota-88, Inc. appealed the Department of Environmental Regulation's denial of a request for an administrative hearing regarding permit revisions for a crude oil splitter. The court reversed, holding that DER failed to provide adequate notice of hearing rights and that the petition was therefore timely filed.
DER's letters failed to meet the requirements for providing a clear point of entry to Chapter 120 proceedings because they did not mention the right to request a hearing, specify the time limit, or refer to applicable procedural rules. Consequently, the petition filed March 4, 1981 was timely. DER conceded Manasota-88 would have had standing in November 1980, but the organization should have been given an opportunity to amend its petition to add sufficient factual allegations.
[1] An agency's notice of action must provide a clear point of entry to administrative proceedings by including information about the right to request a hearing, the time lim…
[2] A petition for an administrative hearing is not untimely if the agency failed to provide a clear point of entry in its notice of action.
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Join FLexlaw to unlock all legal intelligence“the letters from DER to Rains failed to mention Manasota-88's right to request a hearing, to set forth the time limit for requesting a hearing, and to refer to the applicable procedural rules of the agency. Thus DER failed to meet the requirements for providing a clear point of entry to Chapter 120 proceedings.”
Establishes the clear point of entry doctrine and what notice must contain
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Join FLexlaw to unlock all legal intelligenceIn November 1980, DER issued a revised operating permit for a crude oil splitter operated by Manatee Energy Company and sent notice to Mr. and Mrs. Ra…
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JOANOS, Judge.
Manasota-88, Inc., appeals from the Department of Environmental Regulation’s (DER) denial of its request for an administrative hearing pursuant to Section 120.-57(2), Florida Statutes. We reverse.
The record in this case reveals that in November of 1980 after DER issued a revised operating permit for a crude oil splitter operated by Manatee Energy Company, it sent a letter to Mr. and Mrs. Rains informing them of this action.1 Mrs. Rains is Chairman of Manasota-88, Inc. Mrs. Rains immediately wrote a letter protesting the action and asking for more information. More correspondence subsequently passed between Rains and DER, including a letter informing Rains of a second change or clarification in the operating permit.
On March 4,1981, Manasota-88, Inc. filed a petition for an informal de novo administrative proceeding concerning these two permit revisions. DER denied the petition on the basis that (1) Manasota-88, Inc., had received actual notice of DER’s actions and the notice constituted a clear point of entry to Section 120.57 proceedings, (2) the petition was not timely filed pursuant to Rule 17-1.62, Florida Administrative Code, which requires filing within fourteen days after written notice of agency action, and (3) Manasota-88, Inc., failed to allege that it has been or will be substantially affected by the agency’s actions and, therefore, has no standing.
As for the first point, the letters from DER to Rains failed to mention Mana-sota-88’s right to request a hearing, to set forth the time limit for requesting a hearing, and to refer to the applicable procedural rules of the agency. Thus DER failed to meet the requirements for providing a clear point of entry to Chapter 120 proceedings. Sterman v. The Florida State University, 414 So. 2d 1102 (Fla. 1st DCA 1982); Dickerson, Inc. v. Rose, 398 So. 2d 922 (Fla. 1st DCA 1981). DER’s own rule setting the time for requesting a hearing at fourteen days did not specify what must be included in the contents of the notice sent to an affected person. Rule 28-5.111, Florida Administrative Code. To the extent that the agency does not adopt a comprehensive rule on the subject matter, the Model Rules apply. See, Citizens of the State of Florida v. Mayo, 357 So. 2d 731 (Fla.1978).
On the second issue, it follows that since the letters from DER to Rains did not constitute a clear point of entry to Chapter 120 proceedings, the petition for an administrative proceeding filed March 4, 1981, was not untimely.
As for the question of standing, DER concedes that Manasota-88, Inc. would have had sufficient standing in November of 1980 to have requested a hearing, but adheres to its position that the petition does not contain sufficient factual allegations. Under these circumstances, Manasota-88, Inc., should have been given an opportunity to amend. All Risk Corporation of Florida v. State of Florida, Department of Labor and Employment Security, 413 So. 2d 1200 (Fla. 1st DCA 1982), [7 FLW 668].
REVERSED and REMANDED for further proceedings consistent with this opinion.
THOMPSON and WIGGINTON, JJ., concur. . Mr. and Mrs. Rains were members of the Izaak Walton League, an organization which participated in Chapter 120 proceedings regarding the original permitting of the crude oil splitter. Manasota-88, Inc. is a nonprofit corporation which is organized for the purpose of protecting and preserving the environmental health and welfare of Manatee and Sarasota Counties and the citizens of those counties.
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Fla. Optometric Ass'n & Alan P. Fisher v. Dep't OF Prof'l Reg., 567 So. 2d 928 (Fla. 1st DCA 1990)…l agency action” of issuance of a declaratory statement,9 must be provided a clear point of entry into formal proceedings; i.e., a clear opportunity to file a petition for formal proceedings. See Manasota-88, Inc. v. Department of Envtl. Regulation, 417 So. 2d 846 (Fla. 1st DCA 1982); Capeletti Bros., Inc. v. Department of Transp., 362 So. 2d 346 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1374 (Fla.1979). The twenty-one day notice requirement of Rule 28-5.111 does not apply to every agency decision. The r…
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City OF ST. Cloud v. Dep't of Env't Reg., 490 So. 2d 1356 (Fla. 5th DCA 1986)…ice must contain a statement concerning a right to a hearing, set forth a time limit for requesting a hearing, and refer to the applicable procedural rules of the agency. See Manor sota-88, Inc. v. State of Florida Dept. of Environmental Regulation, 417 So. 2d 846 (Fla. 1st DCA 1982), and Florida Administrative Code Rule 28-5.111(1), which provides that “[t]he notice shall state the time limit for requesting a hearing and shall reference the Agency’s procedural rules.”2 In the instant case, the letter sent t…
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Ffec-Six, Inc. v. Fla. Pub. Serv. Comm'n, 425 So. 2d 152 (Fla. 1st DCA 1983)…e procedural rules. The Commission has thereby failed to provide appellant with a clear point of entry into the administrative proceeding, thus rendering the Commission action invalid. See Manosata-88 v. State Department of Environmental Regulation, 417 So. 2d 846 (Fla. 1st DCA 1982); Sterman v. Florida State University, 414 So. 2d 1102 (Fla. 1st DCA 1982). The order appealed is reversed and the cause remanded for further proceedings. BOOTH and THOMPSON, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sterman v. The Fla. State Univ. Bd. OF Regents, 414 So. 2d 1102 (Fla. 1st DCA 1982)
- The Citizens OF the State of Fla. v. Mayo, 357 So. 2d 731 (Fla. 1978)
- ALL Risk Corp. OF Fla. v. State, 413 So. 2d 1200 (Fla. 1st DCA 1982)
- Roberts v. Se. Dev. Corp., 398 So. 2d 922 (Fla. 4th DCA 1981)