STATE OF FLORIDA ADMINISTRATION COMMISSION ROGER THORNBERRY, AC CASE NO: ACC-15-006 et al DOAH CASE NO. 15-003825 Petitioners DEO FILE NO.: CPA 14-7ESR v. Lee County CPA 2012-00001 LEE COUNTY and RH VENTURE II, LLC; et al Respondent/Intervenors. / Motion to Accept Late Filed Response to Exceptions as filed on December 31, 2015 & Response to Motion to Strike Petitioners file this motion to accept their Response to Exceptions as filed on Thursday December 31, 2015, which was incorrectly calendared and filed by undersigned attorney for petitioners four (4) days late after the date stated in the Rule for the response, i.e., Monday December 28, 2015. Late filed Exceptions and Responses to Recommended Orders have been allowed previously in other similar cases, and should be granted in this case. In Martin Land v Martin County, DOAH Case No. 15-0300GM, a Petitioner s late filed exceptions to the Recommended Order were accepted because the Department's late receipt of the Exceptions caused no harm to any parties involved, the Department accepts Petitioner's Exceptions and will rule on them as set forth below. Late filed responses to exceptions were similarly allowed in Spinrad v. DEP, DOAH Case 13-0858 and accepted as late-filed despite respondents objections to the late-filed responses. Appellate courts have held that late filed responses can and should be accepted. Hamilton County v. State Dept. of Environmental Regulation, 587 So.2d 1378 (Fla. 1 st DCA., 1991) and cases have been reversed and remanded where late filed responses were not accepted. See, State Department of Environmental Regulation v. Puckett Oil Co., Inc., 577 So.2d 988 (Fla. 1st DCA 1991). Page 1 of 6
The filing of responses to exceptions is not jurisdictional and can be extended if there is no prejudice to parties. In this case extension of the filing response in this case by four (4) days during the holiday week between Christmas and New Year's Day does not result in prejudice to the Respondents. There is no prejudice to Respondent as the exceptions were already filed, both exceptions and responses are limited to the record and arguments already raised below, and the Response was filed well in advance of the Administration Commission review of the exceptions. The prejudice to Petitioners that could result from striking the response far outweighs the lack of prejudice to respondents caused by the passage of four (4) additional days. Excusable neglect means and presumes that the attorney for a party has made a mistake in calendaring a hearing or deadline. Mistakes by the attorney should not be held against the party. Due to the end of December holidays, and press of both business and family obligations of counsel during the Holiday week between Christmas and New Year s Day, Petitioners attorney was distracted by the concurrent press of family and business obligations, as many people are during this time, resulting in a mistaken calendaring of the deadline by Petitioners attorney who mis-calendared the filing deadline. Mis-calendaring a date by the attorney for a party is excusable neglect. 205 Jacksonville, LLC v. A-Affordable Air, LLC, 16 So. 3d 974 (Fla. 3d D.C.A. 2009) ( A- Affordable concedes that Jacksonville's counsel's failure to calendar a response to the complaint constitutes excusable neglect that would justify setting aside either the clerk's default or the final default judgment. See Giron v. Fairways of Sunrise Homeowners' Ass'n, 903 So.2d 1008, 1009 (Fla. 4th DCA 2005) (citing Al Hendrickson Toyota, Inc. v. Page 2 of 6
Yampolsky, 695 So.2d 948 (Fla. 4th DCA 1997) ("[T]he established case law deems that calendaring errors are regarded as excusable neglect.")). It is no answer to a request for excusable neglect that the party making the request should not have made the mistake as that is self-evident. Hindsight always affords clarity, and generally confirms that had close attention to details been afforded, no mistake would have been made. The reality is however that human beings occasionally make mistakes, and the mistakes by an attorney, or attorney s office, should not be held against the party. The extension of time by 4 days during a holiday week, does not delay review of the Recommended Order and Exceptions by the Administration Commission. Review of the Response to the exceptions allows full consideration of the exceptions on their merits rather than ruling on exceptions without the benefit of the response. Appellate courts have held that late filed responses to exceptions in administrative proceedings can and should be accepted because the rule establishing time frames for responses to exceptions is designed to further the orderly conduct of business. The agency should extend the time for filing exceptions to the recommended order in order to address the merits. Hamilton County v. State Dept. of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA, 1991) (The Rule is designed simply to further the orderly conduct of business, and should be construed as directory only. Notwithstanding the mandatory language of rule, the Department had discretion to extend the time for filing exceptions to the recommended order. ). State Department of Environmental Regulation v. Puckett Oil Co, Inc., 577 So.2d 988 (Fla. 1st DCA 1991). Equitable tolling includes excusable neglect and is described by the Florida Supreme Court as a type of equitable modification which focuses on [the] lack of prejudice to the defendant. Machules v. Department of Administration, 523 So.2d 1132, 1134 (Fla. Page 3 of 6
1988). Equitable tolling is intended and utilized to ameliorate harsh results and injustices that sometimes flow from a strict application of administrative time limits contained in statutes and rules, particularly non-jurisdictional time frames and deadlines which may be extended by motion (to extend or accept late filings) upon good cause or excusable neglect. In this case, there is excusable neglect caused by the mistake in calendaring made by the attorney for petitioner and there is no prejudice or harm to either Respondent, and any minor harm to respondent is far outweighed by harm to Petitioner resulting from striking the response. Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987). Brown v. Department of Financial Services, 899 So. 2d 1246, 1247 (Fla. 4th DCA 2005) (Because late filing of a petition was not jurisdictional); Avante, Inc. v. Agency for Health Care Administration, 722 So. 2d 965, 966 (Fla. 1st DCA 1998); Haynes v. Public Employees Relations Commission, 694 So. 2d 821, 822 (Fla. 4th DCA 1977). Another major concern is judicial economy with regard to the proceedings before the Governor and Cabinet, which have a great deal of pressing business of great importance to the public. If the Response to Exceptions is not accepted, staff review of the case and already lengthy presentations before the Governor and Cabinet sitting as the Administration Commission will be far more difficult and time consuming and presentations will likely be longer, more confusing, and afford greater chance of error without written briefs that contain complete case law citations and evidentiary citations. While we do not doubt the Commission s ability to review the Recommended Order appropriately, our response provides specific, quickly accessible written references to the transcript which detail the conflicting testimony, arguments and evidence presented to the Administrative Law Judge (ALJ). These specific transcript page references and exhibit citations support the Recommended Order of the ALJ. The ALJ in this case, Page 4 of 6
recommended that the Administration Commission find the plan amendment not in compliance and the exceptions require the Administration Commission scour the record to determine whether there is any testimony or exhibits that support the findings of fact in its review of the Recommended Order. Petitioner desire is to make sure that the Administration Commission has as much relevant information as possible in order to timely and efficiently evaluate the Recommended Order and Exceptions filed by Respondents in advance of the oral argument held by the Administration Commission during the regular meeting of the Governor and Cabinet and not unduly delay other important public business before the Governor and Cabinet. Importantly to the process, the response assists and provides transcript and exhibit citations to the Administration Commission that should consider which were located and cited in the response. The response is helpful to the Administration Commission in its review of the exceptions on the merits. Cases should be decided on their merits, rather than procedural rules that were designed to facilitate the orderly submittal of exceptions and responses, and not as jurisdictional bars. Hamilton County v. D.E.R., 587 So.2d 1378 (Fla. App. 1 Dist., 1991). D.E.R. v. Puckett Oil Co., Inc., 577 So.2d 988 (Fla. 1st DCA 1991). In this instant case, Petitioner s Response was filed a mere 4 days past the filing deadline, and the passage of those 4 days during the week between Christmas and New Year s Eve did not create any disadvantage for the Intervenors or Respondent or the Administration Commission whatsoever. The circumstances facing Respondent and Intervenor did not change between Monday, December 28, 2015 and Thursday, December 31, 2015. Page 5 of 6
The Petitioner s Response to Exceptions to the Recommended Order from both the Intervenor and Respondent should both be given due consideration. An abundance of caution should be exercised in order to ensure all arguments that will be considered by the Administration Commission in order that the arguments can be appropriately reviewed on their merits. The Respondents object. WHEREFORE, Undersigned sincerely apologies for the mistaken calendaring of the filing the Response to Exceptions four (4) days late and respectfully requests that the Response to Exceptions be accepted as filed on December 31, 2015. /s/ Ralf Brookes Attorney Attorney for Petitioners Florida Bar No. 07783621217 E Cape Coral Parkway #107 Cape Coral, Florida 33904 Telephone (239) 910-5464 Facsimile (866) 341-6086 Ralf@RalfBrookesAttorney.com RalfBrookes@gmail.com Page 6 of 6
CERTIFICATE OF FILING & SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed and served on January 13, 2016 to the following counsel of record: LEE COUNTY FLORIDA Neysa Borkert Mark Trank NBorkert@leegov.com MTrank@leegov.com Lee County Attorney s Office 2115 2 nd Street Fort Myers, FL 33901-3012 Phone 239-533-2236 HENDERSON, FRANKLIN, STARNES & HOLT, P.A. Russell P. Schropp russell.schropp@henlaw.com Richard B. Akin richard.akin@henlaw.com 239.344.1280 (telephone) 239.344.1535 (facsimile) Designated email recipients: melissa.sharnsky@henlaw.com brenda.sitar@henlaw.com MOORE, BOWMAN & RIX, P.A. S. William Moore 3277 Fruitville Road Unit E Sarasota, FL 32437 941.365.3800 (telephone) Designated email recipients: bmoore@mbrfirm.com ksasse@mbrfirm.com As filed with Administration Commission electronically AC.Clerk@LASPBS.STATE.FL.US and via fax at (850) 922-6200. I represent that the original physically signed document will be retained by that party for the duration of the proceeding and of any subsequent appeal or subsequent proceeding in that cause, and that the party shall produce it upon the request of other parties; and be responsible for any delay, disruption, or interruption of the electronic signals and accepts the full risk that the document may not be properly filed. /s/ Ralf Brookes Attorney Attorney for Petitioners Florida Bar No. 0778362 1217 E Cape Coral Parkway #107 Cape Coral, Florida 33904 Telephone (239) 910-5464 Facsimile (866) 341-6086 Ralf@RalfBrookesAttorney.com RalfBrookes@gmail.com Page 7 of 6