00-001201 Southwest Florida Regional Planning Council vs. Fletcher Holt
 Status: Closed
Recommended Order on Tuesday, July 18, 2000.


View Dockets  
Summary: Evidence of record is sufficient to establish Respondent is guilty of several rule violations dealing with construction of and abandonment of water wells, but not guilty of cutting off casing below ground on one well.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SOUTHWEST FLORIDA WATER )

12MANAGEMENT DISTRICT, )

15)

16Petitioner, )

18)

19vs. ) Case No. 00-1201

24)

25FLETCHER HOLT, )

28)

29Respondent. )

31______________________________)

32RECOMMENDED ORDER

34A hearing was held in this case in Tampa, Florida, on May

4631, 2000, before Arnold H. Pollock, an Administrative Law Judge

56with the Division of Administrative Hearings.

62APPEARANCES

63For Petitioner: Margaret M. Lytle, Esquire

69South west Florida Water

73Management District

752379 Broad Street

78Brooksville, Florida 34609-6899

81For Respondent: Onofre Cintron, Esquire

86305 North Parson Avenue

90Brandon, Florida 33510

93STATEMENT OF THE ISSUE

97The issue for cons ideration in this matter is whether

107Respondent’s license as a water well contractor should be

116disciplined because of the matters alleged in the Administrative

125Complaint and Order entered herein by the District.

133PRELIMINARY MATTERS

135By Administrative Compla int and Order dated December 21,

1441999, the Southwest Florida Water Management District’s

151(District) Executive Director seeks to discipline Respondent’s

158license as a water well contractor within the District because

168of misconduct alleged therein. Specifically, the District

175alleges that sometime between June 1 and November 15, 1998, the

186Respondent cut-off the casing of a water well below the land

197surface; failed to seal the casing of the well with an approved

209substance; and improperly abandoned the well by failing to fill

219it from bottom to top with an approved grout. The District also

231alleges that Respondent also drilled two other wells on the same

242property, the first of which he covered with a cracked PVC cap

254and also failed to properly abandon. It is further alleged that

265the second of these two wells, which was the third drilled by

277Respondent on the property, was drilled without amending the

286permit he had received for the first well; without properly

296abandoning the well for which the permit had been taken; and

307without obtaining from the District a valid well construction

316permit (WCP) authorizing the construction of the third well. It

326is further alleged that the casing of the third well did not

338extend below the static water level of the producing aquifer, as

349required. If proven, Respondent’s misconduct violates the

356provisions of Chapter 373, Florida Statutes, and Rules 40D-

3653.521, 40D-3.531, 40D-3.517(3), and 62-532.500, Florida

371Administrative Code.

373By Petition and Request for Hearing dated March 14, 2000,

383Respondent sought a formal administrative hearing on the

391allegations, and this hearing ensued.

396At the hearing, Petitioner presented the testimony of

404Anthony E. Gilboy, manager of well construction for the

413District; Karen Anne Grant, owner of the property on which the

424subject wells were drilled by Respondent; Sharon Lee Vance, the

434District’s acting field services supervisor; and Mark C. Pike, a

444water resources technician III for the District. Petitioner

452also introduced Petitioner’s Exhibits 7 through 13. Respondent

460testified in his own behalf and presented the testimony of his

471brother, Anthony C. Holt, also a water well contractor.

480Petitioner requested, and the undersigned officially

486recognized without objection, Chapter 373, Florida Statutes, and

494Rules 40D3, 62-531 and 62-532, Florida Administrative Code; and

503the District’s Guidelines and Procedure Manual, as well as the

513District’s Citation Dictionary.

516A Transcript of the proceedings was filed June 14, 2000.

526Subsequent to the receipt thereof, counsel for both parties

535submitted matters in writing which were carefully considered in

544the preparation of this Recommended Order.

550FINDINGS OF FACT

5531. At all times pertinent to the issues herein, the

563Southwest Florida Water Management District (SWFWMD) was the

571state agency responsible for the conservation, protection,

578management, and control of water resources within its

586boundaries, and consistent therewith, the licensing of water

594wells therein; and for the licensing and regulation of water

604wells and water well contractors within the district. The three

614wells in issue herein were within the jurisdiction of the

624Petitioner, and Respondent was a water well contractor licensed

633by the District.

6362. On June 4, 1998, Respondent signed a contract with

646Karen Anne Grant, to drill a four-inch domestic water well on

657her property located at 33442 Larkin Road, Dade City, Florida.

667The property, on which Ms. Grant was building a residence, was a

679part of a pre-existing citrus grove. After application by the

689Respondent, SWFWMD issued WCP No. 606175.01 to him on June 1,

7001998, and Respondent began construction of the well on June 15,

7111998. His application reflected the well was to be drilled

721using the cable-tool method.

7253. Construction was completed on the well on or about July

7367, 1998, but because the well was vandalized during construction

746by the dropping of an unknown substance (probably a piece of

757casing) down the well, the well was unsatisfactory and was not

768used. Respondent attempted to repair the well but was unable to

779do so. Respondent claimed the well was unusable and he would

790have to drill another one. Although he did not obtain a permit

802to close the well, he subsequently did so. He was paid

813$5,375.00 to dig this Well (No. 1).

8214. Because of the failure of Well No. 1 , Respondent

831applied to the District for and received WCP No. 613349.01 on

842December 9, 1998, to construct a second four-inch water well on

853Ms. Grant's property. This was Well No. 2. He began

863construction that day and completed it on January 27, 1999.

873From the time of its initial use, Well No. 2 produced water

885which contained unacceptable amounts of sediment, debris, and

893sand. In addition to the unsatisfactory quality of the water it

904produced, Well No. 2 also failed to produce a sufficient

914quantity of water for domestic potable water use or grove

924irrigation. Respondent admitted to Ms. Grant that Well No. 2

934was not satisfactory for grove irrigation, and in an effort to

945fix the water quality problem, installed a sand filter and

955sedimentation tank.

9575. Wel l No. 2 was not properly closed. It was covered

969with a PVC cap instead of a tamper-resistant watertight cap or

980valve as required, and Respondent did not properly seal the

990upper terminus of the well.

9956. Without obtaining a third WCP, on February 25, 1999 ,

1005Respondent started construction of a third well on the Grant

1015property. Respondent contends WCP No. 613349.01, pulled for

1023Well No. 2, was not for that well but for Well No. 3. He argues

1038that the second well was so close to the first well that he did

1052not feel another permit was required.

10587. Though Well No. 3 was completed and produces water, the

1069water quality is poor. It contains sand, sediment, debris, and

1079rock, which results in clogging of plumbing fixtures at the

1089Grant home. In addition, the volume of water produced is

1099insufficient for comfortable home use. Well No. 3 is open down

1110to 178 feet below land surface, beyond which point it is

1121obstructed by sand. Use of a diagnostic tool available to the

1132District reveals that the sand seems to be coming from around

1143the well casing.

11468. Ms. Grant initially contracted with Respondent to dig

1155her well in June 1998. Although Petitioner disputes it, the

1165location of the well near the new house she was building was,

1177she claims, by mutual agreement. Respondent did not express any

1187dissatisfaction with the location of this or either of the other

1198wells, He said he was familiar with the area and had worked all

1211around there.

12139. Respondent started work on Well No. 1 on June 15, 1998

1225and it was completed on July 2, 1998. The house was not yet

1238completed, and electric service had not been installed, though

1247it was being arranged for.

125210. Before the well could be put in operation, however,

1262Respondent claimed it was vandalized and his equipment, which he

1272had left at the site, stolen. At this point, Respondent told

1283Ms. Grant that he had run into an obstruction which he believed

1295was pipe which had been dropped into the well at more than 100

1308feet. He said he had tried to get it out, but could not, and

1322had to drill another well. The casing of Well No. 1 was not cut

1336off at that time. Ms. Grant later discovered it had been cut

1348off and plugged, but she does not know who did that.

135911. Ms. Grant used Well No. 2, which was located about 20

1371to 30 feet west of Well No. 1, for just about two months but was

1386never satisfied with the amount or quality of the water it

1397produced. Not only was the water quality low, but there was

1408also insufficient volume for grove irrigation, one of the

1417intended uses of which she had advised Respondent. When Grant

1427complained to Respondent about the water quality, he suggested

1436she run hoses constantly to clear the sand out.

144512. In February, 1999, just after Ms. Grant contacted the

1455District to complain, Respondent said he would come by to cap

1466Well Nos. 1 and 2, and start Well No. 3. On February 25, 1999,

1480Respondent started Well No. 3 at a site about 200 feet north of

1493Well Nos. 1 and 2, agreed upon by the parties after some

1505discussion, and on March 5, 1999, he completed it. Respondent

1515billed Ms. Grant $3,271 for this well, in addition to the $5,375

1529paid for Well No. 1 and the $4,585 paid for Well No. 2. Whereas

1544the builder paid for the first two wells, Ms. Grant paid for

1556Well No. 3, but she had the same problems with Well No. 3 that

1570she had had with the prior two wells. An irrigation company

1581called in to see what could be done to get water to the citrus

1595grove indicated there was too much sediment in the water and not

1607enough flow.

160913. About a year after Well No. 3 was completed, the

1620Grants noticed the water pressure was dropping, and when they

1630went to the well site, they noticed the pump was constantly

1641running. As a result, they called another well driller who

1651pulled the pump and replaced the impellers.

165814. After that, Ms. Grant contacted Respondent about the

1667fact that the wells he had drilled had never worked properly.

1678All he would recommend was to keep the hoses running. He

1689indicated he would try to develop the well to rid it of debris

1702but when he tried, he was unsuccessful. As a result of the

1714situation with the three wells, the Grants had no water to their

1726home; the pumps they installed were destroyed; they were unable

1736to irrigate their 8-acre citrus grove; they suffered a resultant

1746loss of income; and, they were forced to drill a fourth well.

175815 . When Well No. 1 was closed, the casing was cut off at

1772or below ground level. It did not extend one foot above the

1784land surface, nor was the casing capped or sealed with a tamper-

1796resistant watertight cap or valve. Examination of the well site

1806by Sharon Lee Vance, then a technician IV for the District, on

1818May 25, 1999, based on a complaint filed by Ms. Grant, revealed

1830that the water quality was poor - cloudy with excessive sand and

1842rock particles. Ms. Vance tried to contact Respondent, whose

1851name appeared on the permit as contact, by phone but always got

1863his voice mail. Though she left messages requesting him to call

1874back, he never did.

187816. Ms. Vance went back to the Grant site in July 1999 in

1891the company of other District personnel. At this visit, Ms.

1901Vance learned there were two wells. She located both and found

1912that Well No. 1 was buried. When she first saw that well, she

1925noted that it had been cut off below the surface, a fence post

1938had been driven into the top, and the well had been buried. In

1951Ms. Vance's discussions with Ms. Grant about this well, Ms.

1961Grant categorically denied she was the one who cut off the top

1973of Well No. 1 or buried it. She does not have access to the

1987cutting equipment used to cut off the top of the well. Such

1999equipment, however, is commonly used by well contractors.

200717. It was obvious to Ms. Vance that Well No. 1 had

2019several problems. It was clearly not suitable for its intended

2029use because it was cut off below ground level and was

2040obstructed. It had not been properly abandoned. Though she dug

2050down approximately one-and-a-half feet all the way around the

2059casing, she could find no evidence of bentonite or any other

2070approved closing medium.

207318. Even though Respondent now claims the second permit he

2083pulled was not for Well No. 2 but for Well No. 3 instead, the

2097permit itself appears to authorize the construction of Well No.

21072. Ms. Vance found several problems with this well, also. It

2118was not properly sealed with bentonite or any other properly

2128approved closure medium; a PVC cap had been applied to the top

2140instead of a waterproof or tamperproof cap, and the PVC cap was

2152cracked; the well was not suitable for its intended purpose

2162because it was obstructed and produced both insufficient and

2171poor quality water; and it was not properly abandoned. Ms.

2181Vance observed a metal plate placed around the well top. She

2192does not know what purpose it was to serve, but based on her

2205experience and her examination of the site, she believes it was

2216placed there to keep the casing from falling into the well.

222719. Notwithstanding, Ms. Vance's opinion that the second

2235permit was for Well No. 2, Respondent contends he believed the

2246permit for Well No. 1 was adequate to permit drilling of Well

2258No. 2 without a new permit. Though his belief is incorrect, he

2270admitted to obtaining a permit for Well No. 3. Therefore, it is

2282found that Well No. 2 was not properly permitted. Well No. 3

2294was permitted.

229620. The water in Well No. 3 was not of good quality. She

2309examined the sand filter which had been installed by the

2319Respondent and found it to be full of sand. So was the settling

2332tank. She also noted debris and unusual sediment around the

2342well head. Based on water samples taken at the well, and the

2354observations made, it was clear to Ms. Vance that the well was

2366not properly seated and was pumping sand. Further, the well

2376casing did not extend down to the static water level, and the

2388well was not properly permitted.

239321. Ms. Vance further noted that the water from Well No.

24043, in addition to the excessive sand, also had large pieces of

2416rock and chunks of clay in it. This was unusual and indicated

2428to her that there was a problem with the well's construction.

2439The casing integrity as not good, which permitted an infusion of

2450contaminant into the well. This condition is not unusual during

2460the first day or so of a well's operation, but it usually clears

2473up after that. In this case, it did not.

248222. Ms. Vance admits she does not know who cut Well No. 1

2495off below ground level. She knows the well was not properly

2506abandoned as required by rule, however, because it was not

2516properly grouted with neat cement grout or bentonite. She dug

2526down beside the well for a total of two and a half feet without

2540seeing any evidence of grout or bentonite. The fact that the

2551well had pipe dropped into it, and the existence of the cutting

2563off of the pipe below ground, made it inappropriate for the

2574intended purpose of providing water for the home.

258223. Ms. Vance she does not know who cut off the pump; Ms.

2595Grant does not know who cut off the pipe; and Respondent denies

2607having done it. Though the work was clearly done by someone

2618with access to well drilling tools, Respondent was not the only

2629driller to work at the site. Therefore, it cannot be found that

2641Respondent cut the pipe off below ground. It is clear, however,

2652that Respondent failed to properly abandon and close Well No. 1,

2663when he found it unusable, and it was his responsibility to do

2675so.

267624. Well No. 2 also was not properly sealed by Respondent,

2687according to Ms. Vance. A proper seal would include a good cap,

2699not a cracked PVC cap, which would suffice only as a temporary

2711cap. A proper cap would be one that is water tight and could

2724not be readily removed. Ms. Vance admits she does not know who

2736cracked the existing cap - only that it is cracked. This well,

2748too, did not produce water fit for its intended purpose because

2759of the existence of the tools which had been dropped into it. A

2772permit was not obtained to abandon it. Under all these

2782circumstances, Ms. Vance did not attempt to determine if it

2792would produce sufficient water.

279625. Finally, Ms. Vance concluded that Well No. 3 was not

2807properly seated. According to rule, the casing has to seat to

2818or below the static water level. Based on the debris in the

2830water drawn from this well, she was satisfied this well was not

2842properly cased.

284426. Mack Pike, a water resources technician III for the

2854District, does much of the well logging for the District. The

2865equipment he uses goes to the bottom of the well and shows the

2878diameter up to the point where the casing usually starts. Among

2889other items, he uses a camera, which is what he used on the

2902wells in issue here.

290627. On July 22, 1999, he went to the Grant property to

2918look at Well Nos. 1 and 2. His first efforts to get into these

2932wells were unsuccessful, so he stopped his effort and returned

2942on May 10, 2000 with the camera. On May 17, 2000, he also ran

2956the camera down all three wells. In Well No. 3 he found the

2969pump at 176 feet. He found Well No. 1 cut off about one and a-

2984half feet below ground level, with a log jammed into the casing

2996top down to the level of the casing. The pipe had been cut with

3010a torch, but the casing had not been properly sealed with

3021bentonite. Use of the log to stuff the pipe was an improper

3033seal. He found the well open below the log down to 128 feet,

3046but obstructed below that. There was no water in the well.

3057Respondent adamantly insists he used bentonite in all three

3066wells, but since no trace of it was found in any of the wells by

3081Mr. Pike or Ms. Vance, it is found that he did not.

309328. At Well No. 2, Mr. Pike found a welded slab around the

3106pipe to keep the casing from falling in. The cap was cracked

3118and was no good. The camera showed the well was closed off. He

3131hit sand at 158 feet. The presence of sand indicated to Mr.

3143Pike that the casing was not properly sealed. The well was

3154unusable.

315529. Mr. Pike did not examine Well No. 3 until after he

3167opened the sediment tank and found sand which appeared to have

3178come from the surface. If the casing had been properly sealed,

3189there should have been no surface sand. This means that the

3200well was not properly seated.

320530. Respondent has been a licensed well contractor since

32141989 and has drilled approximately 300 wells since that time.

3224Though he claims he suggested alternate locations for the wells

3234to Ms. Grant, she insisted the well be placed near her

3245irrigation line. Respondent claims he was against this because

3254the site was a transition area which raised the possibility of

3265the pipe bending. Notwithstanding the advice he got from others

3275regarding the siting of the wells, he agreed to place the well

3287where Ms. Grant wanted it.

329231. Respondent claims he dug the first well and installed

3302the pump, but the power was insufficient to run it. As a

3314result, he pulled out the pump and told Ms. Grant that when she

3327got the proper power to run it, he'd come back and reinstall the

3340pump. It was when he returned to the site in response to her

3353call that he found that the site of Well No. 1 had been

3366vandalized. Though he recommended the well be abandoned, Ms.

3375Grant did not want to do that, so he moved over 20 feet and

3389started to drill again. He categorically denies having cut off

3399the casing of Well No. 1 below ground level. It has been found

3412that the evidence shows Respondent that cut the pipe on Well No.

34241, is insufficient.

342732. Mr. Holt admits he did not seek a permit for this

3439second well because his understanding was that one could drill

3449like wells on the same premises without abandoning the pre-

3459existing wells. He drilled the second well which, he claims,

3469produced water for five to six months. However, it was

3479impossible to stop the sand from infiltrating the well, and the

3490well was not producing sufficient water to irrigate the grove.

3500Because the water produced by Well No. 2 was insufficient in

3511quantity to use the 5-horsepower pump called for in the

3521contract, Respondent replaced it with a one and a-half

3530horsepower pump.

353233. According to Respondent, he and Ms. Grant discussed

3541where to site Well No. 3. Finally, Ms. Grant agreed to move it

3554up the hill on which Respondent wanted to site it, as this would

3567accommodate her irrigation system. Respondent was not

3574comfortable with this because it was on the slope too close to

3586the others, but he went along with it.

359434. As W ell No. 3 was being constructed, Respondent

3604discussed with Ms. Grant the need to close Well Nos. 1 and 2.

3617She did not want to pay for the closings, so he decided to cap

3631the existing wells. As a result, Well No. 2 is still a viable

3644well, and though it will not irrigate the grove, it will,

3655Respondent claims, provide sufficient water for the house. He

3664admits placing the PVC cap on Well No. 2, but claims it was not

3678cracked when installed. He also admits to placing the plate

3688around the top of Well No. 2 because the drive shoe was bent.

3701It broke off, and he was afraid if he did not reinforce the area

3715as he had the casing would collapse when he tried to ream out

3728the drive shoe to recover it.

373435. At the 126-foot mark of Well No. 3, Respondent hit a

3746boulder through which the drill would not go. At that time, the

3758hole below the casing was still good with no infusion.

3768Respondent installed a pump and drew water, but, the pump soon

3779began to pull sand. Respondent installed a filter, but it was

3790insufficient. He ultimately drilled through the rock and placed

3799the pump at 178 feet. That well is currently being used.

381036. Respondent claims that all wells in that area pull

3820sand to some degree. He insists that Ms. Grant's wells just

3831pull too much. He claims he could have quit, but because of his

3844relationship with the builder, he felt obligated to drill a

3854working well for Ms. Grant.

385937. Anthony Gilboy, who has been with the District for 20

3870years, is currently the District's manager of well construction.

3879He is familiar with the statutes and the rules of the District

3891relating to water well construction and abandonment. According

3899to Mr. Gilboy, they are loose enough to permit some latitude in

3911their application. There is a freedom to amend methodology

3920where circumstances so dictate.

392438. A licensed water well contractor is required to obtain

3934a permit to construct a water well. Once a permit is drawn, if

3947the well needs to be changed, the permittee must apply for an

3959amendment and then plug the old well consistent with District

3969guidelines. Plugging is critical to prevent potential

3976contamination of water and to preserve it.

398339. Rule 40D-3.042, Florida Administrative Code, permits

3990multiple (up to 8) wells under a single permit for similar types

4002of wells that have diameters of 4 inches or less, but not

4014domestic water wells.

401740. There are different ways to drill a water well. One

4028is by cable-tool drill in which a bit is hammered into the rock.

4041As the casing is being driven down into the ground, it holds

4053back the sediment. Another method involves the use of a rotary

4064drill which employs water and bentonite to hold back sediment.

4074It is possible to tell whether bentonite was used in the

4085drilling process just by looking at the well. The bentonite

4095adheres to the well casing and looks different from the

4105surrounding soil. In fact, there is no soil appearing naturally

4115in Florida that looks like bentonite. In the instant case,

4125Respondent applied to use the cable-tool method. Bentonite

4133traces were not found at the sites.

414041. When a well is drilled, the casing is to be poured in

4153segments as drilling progresses. When a well is to be

4163abandoned, one approved method of doing so involves the use of

4174bentonite, a type of clay which swells to about 10 to 15 times

4187its volume in dry form. Studies done by the District in

4198conjunction with the University of Florida show that over all,

4208bentonite is a better seal than natural soil, and it prevents

4219surface water from settling down the side of the casing.

422942. Rule 40D-3.517(3), Florida Adm inistrative Code,

4236requires bentonite's use for this purpose, and a rule of the

4247Department of Environmental Protection, though not specifically

4254mentioning bentonite, requires that casings be sealed.

426143. The casing of a water well is used to seal off any

4274unconsolidated materials. Rule 62-532, Florida Administrative

4280Code, requires the casing be extended into the static water

4290level at the time the well is drawn. If a well is not sealed,

4304debris and sand can slide into the well and damage the pump and

4317other equipment. If debris is seen, it usually means the casing

4328was not sealed properly.

433244. After a well is completed, the rules of the District

4343and the Department, Rules 40D-3.521(2) and 62-532.500(3)(a)4,

4350Florida Administrative Code, respectively, require the upper

4357part of the well to be sealed off to prevent infusion of

4369contaminants. The seal must be tamper-proof and permanent. A

4378fence post is not acceptable, nor is a cracked PVC cap. In

4390addition, the upper terminus of a private well must extend at

4401least 1 foot above the land surface. The purpose of this

4412requirement is to allow the well to be found, and to prevent

4424infusion of contaminant. (Rule 40D-3.53(2), Florida

4430Administrative Code)

443245. According to Rule 62-532-500(4), Florida

4438Administrative Code, all abandoned or incomplete wells must be

4447plugged from top to bottom with grout (neat cement). The Rule

4458and Stipulation 39 of the permit provide that the well drilling

4469contractor is responsible for proper abandonment of a well.

4478This is not conditioned on the willingness of the owner to pay.

4490The contractor has the responsibility to do it. An abandoned

4500well is one which the use of which has been permanently

4511discontinued or which is so in need of repair as to be useless.

4524These determinations must be made by the District, hence the

4534need for the permit. In the instant case it was determined that

4546Well Nos. 1 and 2 were not suited for their intended purpose,

4558and they should have been properly abandoned.

456546. The process for well abandonment is not complex, bu t

4576it does require the obtaining of a permit. At least 24 hours in

4589advance of initiation of the plugging process, the contractor

4598must advise the District that the process will be implemented.

4608Thereafter, the well hole is filled with neat cement or

4618bentonite grout. To abandon a well by any other method would

4629require a variance from the District. Neither permit nor

4638variance was sought as to Well Nos. 1 and 2.

464847. The standards adopted by the Department and the Water

4658Management Districts are statewide in application. Construction

4665of a water well without first obtaining a permit is classified

4676as a major violation. The failure to properly abandon a well or

4688the failure to use bentonite or neat cement in well closure are

4700also major violations. Failure to construct a well so that the

4711casing extends below the static water level is a major

4721violation. Failure to seat or seal a casing into rock formation

4732is a major violation. Failure to place a water-tight seal and

4743failure to extend well casing at least one foot above the ground

4755level are both major violations.

476048. Penalties may be assessed for these violations

4768according to a schedule set out in the Department rules.

4778However, these penalties may be adjusted based on such factors

4788as the economic benefit to the contractor of his non-compliance;

4798his history of non-compliance; the negligence or willfulness of

4807his actions; and whether he acted in good faith. Under the

4818circumstances of this case, Mr. Gilboy is of the opinion that

4829the actions proposed by the District are appropriate.

4837CONCLUSIONS OF LAW

484049. The Division of Administrative Hearings has

4847jurisdiction over the parties and the subject matter of these

4857proceedings. Section 120.57(1), Florida Statutes.

486250. The construction of water wells are within the

4871jurisdiction of the water management districts of the state.

4880Well construction activities must be carried on consistent with

4889the terms of applicable state statutes and the rules of the

4900water management district in which the construction activity

4908occurs. The water well construction activities carried on by

4917Respondent in this case fall within the jurisdiction of the

4927Department of Environmental Protection and the SWFWMD. The

4935applicable statute is Chapter 373, Florida Statutes. The

4943pertinent rules of the Department include Chapters 62-531 and

495262-532, Florida Administrative Code, and the applicable District

4960rule is Rule 40D-3.521, Florida Administrative Code.

496751. Rules 40D-3.521(2) and 62-532.500(3)(a)4, Florida

4973Administrative Code, require the upper terminus of a well casing

4983be sealed in a water-tight manner with a threaded, welded, or

4994bolted cover or valve. The evidence of record is clear that the

5006upper termini of Well No. 1 and Well No. 2 were not properly

5019sealed. Well No. 1 was closed with a wooden dowel jammed into

5031the opening, and Well No. 2 was closed with a cracked PVC cap

5044which was not threaded, welded, or bolted. Neither process

5053conformed to the requirements of the rules for well sealing.

5063These two violations are classified as major and support a fine

5074of $500 and assessment of five points each for a total of $1,000

5088fine and assessment of 10 points

509452. The same provision of Rule 40D-3.52(2), Florida

5102Administrative Code, also requires that a well casing extend at

5112least 12 inches above the final ground level. Respondent

5121contends he did not cut the well casing of Well No. 1 off below

5135ground level, and considering all the evidence relevant to that

5145issue, it cannot be found that he did. The failure to properly

5157seal the well casing constitutes a major violation, which, under

5167the provisions of the rule, carries an administrative fine of

5177$500 and assessment of five points against the contractor's

5186license.

518753. Both the District's Rule 40D-531(2) and the

5195Department's Rule 62-532.500(4) require that an incomplete well,

5203or a well that is unsuitable for its intended purpose, must be

5215properly abandoned by filling it from bottom to top with an

5226approved sealant. The evidence of record clearly shows that

5235neither Well No. 1 nor Well No. 2 was sealed from bottom to top

5249as required. This constitutes a major violation, and since two

5259wells were involved, each violation is punishable by an

5268administrative fine of $1,000 and assessment of ten points

5278against the license for each of the violations, a total fine of

5290$2,000 and assessment of 20 points.

529754. Rules 40D-3.517(3) and 62-532.500(2)(d), Florida

5303Administrative Code, both require that dry bentonite be used to

5313seal the casing of a well during construction. The evidence of

5324record indicates that Respondent failed to utilize bentonite in

5333the construction of Well No. 1. This constitutes a major

5343violation and subjects the offender to an administrative fine of

5353$500 and assessment of 5 points.

535955. The applicable Rules here, 40D-041(1) and 62-

5367532.400(5), Florida Administrative Code, require a permit be

5375obtained prior to commencement of construction of a water well

5385not specifically exempted (the former); and establish procedures

5393for moving the location of a permitted well (the latter). What

5404is required is that the unsatisfactory well be properly

5413abandoned prior to the construction of the new or relocated

5423well. Here, the evidence indicated Respondent obtained a permit

5432for Well No. 1 which was subsequently abandoned without first

5442obtaining a permit to do so. Aside from the improper method of

5454abandonment use, previously discussed herein, Respondent then

5461began construction of a second well without obtaining a permit,

5471claiming he felt the prior issued permit was acceptable since

5481the new well was so close to and a replacement for the older

5494one. In this assumption, Respondent was in error. He also

5504improperly abandoned Well No. 2 without a permit, and also

5514improperly sealed it with a PVC cap which was unacceptable for

5525that purpose.

552756. Thereafter, Respondent began Well No. 3 located some

5536distance from the prior two wells. The District contends he did

5547not obtain a permit for this well, but the evidence of record

5559shows that two permits were obtained. The District has failed

5569to clearly show that the second permit did not pertain to Well

5581No. 3. A second permit was obtained, and the evidence indicates

5592it was for Well No. 3. Therefore, no penalty should be assessed

5604for this alleged violation. However, no permit was obtained for

5614Well No. 2. This is a major violation of Rule 40D-3.041(1),

5625Florida Administrative Code, and supports assessment of an

5633administrative fine of $100 and assessment of one point.

564257. Still with reference to Well No. 3, the evidence of

5653record clearly indicates that the casing of this well did not

5664extend below the static water level in the well. This is a

5676major violation of Rule 62-532.500(2)(b), Florida Administrative

5683Code, and permits the imposition of an administrative fine of

5693$500 and assessment of five points.

569958. The failure to seat or seal the casing of Well No. 3

5712into the rock level or other consolidated formation into which

5722it extends with neat cement grout, as called for in Rule 62-

5734532.500(2)(d)1, Florida Administrative Code, constitutes a major

5741violation permitting the imposition of an administrative fine of

5750$500 and assessment of five points.

575659. Penalties considered under the terms of these rules

5765may be mitigated if appropriate. The evidence of record

5774indicates Respondent was previously disciplined by the district

5782in 1996, but in light of the fact that the penalty imposed was

5795rescinded or mitigated shortly thereafter, the prior discipline

5803is not considered for the purpose of aggravation or mitigation

5813of penalty in this case.

581860. Taken together, the established violations by

5825Respondent support an administrative fine and assessment of less

5834than 50 points. This does not support a suspension of his

5845license.

5846RECOMMENDATION

5847Based on the foregoing Findings of Fact and Conclusions of

5857Law, it is recommended that Respondent, Fletcher Holt be ordered

5867to pay an administrative fine of $4,600; that 46 points be

5879assessed against his water well contractor's license; and that

5888he be required to properly abandon Well Nos. 1, 2, and 3, which

5901he drilled on the Grant property.

5907DONE AND ENTERED this 18th day of July, 2000, in

5917Tallahassee, Leon County, Florida.

5921__________________________________

5922ARNOLD H. POLLOCK

5925Administrative Law Judge

5928Division of Administrative Hearings

5932The DeSoto Building

59351230 Apalachee Parkway

5938Tallahassee, Florida 32399-3060

5941(850) 488-9675 SUNCOM 278-9675

5945Fax Filing (850) 921-6847

5949www.doah.state.fl.us

5950Filed with the Clerk of the

5956Division of Administrative Hearings

5960this 18th day of July, 2000.

5966COPIES FURNISHED:

5968Onofre Cintron, Esquire

5971305 North Parson Avenue

5975Brandon, Florida 33510

5978Margaret M. Lytle, Esquire

5982Southwest Florida Water

5985Management District

59872379 Broad Street

5990Brooksville, Florida 34609-6899

5993E. D. "Sonny" Vergara, Executive Director

5999Southwest Florida Water

6002Management District

60042379 Broad Street

6007Brooksville, Florida 34609-6899

6010Kathy C. Carter, Agency Clerk

6015Office of General Counsel

6019Department of Environmental Protection

60233900 Commonwealth Boulevard, Mail Station 35

6029Tallahassee, Florida 32399-3000

6032NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6038All parties have the right to submit written exceptions within

604815 days from the date of this Recommended Order. Any exceptions

6059to this Recommended Order should be filed with the agency that

6070will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 09/05/2000
Proceedings: Notice of Entry of Final Order No. SWF 00-43, Final Order no. SWF 00-43 filed.
PDF:
Date: 08/29/2000
Proceedings: Agency Final Order
PDF:
Date: 07/18/2000
Proceedings: Recommended Order
PDF:
Date: 07/18/2000
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held May 31, 2000.
PDF:
Date: 07/03/2000
Proceedings: Closing Argument and Recommended Proposed Order (Respondent) filed.
Date: 06/28/2000
Proceedings: Closing Argument and Recommended Proposed Order (filed via facsimile)
PDF:
Date: 06/27/2000
Proceedings: Argument; Proposed Recommended Order (filed by Petitioner via facsimile) filed.
Date: 06/14/2000
Proceedings: Transcript Volumes 1 and 2 filed.
Date: 05/31/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 05/25/2000
Proceedings: Pre-Hearing Stipulation w/Exhibits (Petitioner filed via facsimile) filed.
PDF:
Date: 05/25/2000
Proceedings: Pre-Hearing Stipulation (Petitioner filed via facsimile) filed.
PDF:
Date: 05/09/2000
Proceedings: (Petitioner) Notice of Taking Deposition filed.
PDF:
Date: 04/03/2000
Proceedings: Notice of Hearing sent out. (hearing set for May 31, 2000; 9:00 a.m.; Tampa, FL)
PDF:
Date: 03/30/2000
Proceedings: Joint Response to Initial Order filed.
Date: 03/23/2000
Proceedings: Initial Order issued.
PDF:
Date: 03/20/2000
Proceedings: Administrative Complaint and Order (filed via facsimile).
PDF:
Date: 03/20/2000
Proceedings: Agency Referral Letter filed.
PDF:
Date: 03/20/2000
Proceedings: Petition for Request for Hearing (filed via facsimile).
PDF:
Date: 03/20/2000
Proceedings: Notice of Referral filed.

Case Information

Judge:
ARNOLD H. POLLOCK
Date Filed:
03/20/2000
Date Assignment:
03/23/2000
Last Docket Entry:
09/05/2000
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (1):

Related Florida Rule(s) (5):