08-003053 Dr. Octavio Blanco vs. Gpg, Inc And Southwest Florida Water Management District Status: Closed Recommended Order on Friday, September 19, 2008.

Summary: Petitioner is barred from relitigating issues previously decided in prior related administrative proceedings. Recommend that petition be dismissed, with prejudice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. OCTAVIO BLANCO, )

)

Petitioner, )

)

vs. ) Case No. 08-3053

)

GPG, INC. and SOUTHWEST )

FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER OF DISMISSAL

This matter came before the undersigned on a Motion to

Dismiss and for Fees and Costs (Motion) filed by Respondent,

GPG, Inc. (GPG), on July 23, 2008. The Motion represents that

Respondent, Southwest Florida Water Management District

(District), joins in that part of the Motion seeking dismissal

of the pleading, but takes no position on the request for fees

and costs. The Motion was served by facsimile on Petitioner's

counsel on July 23, 2008. However, by Order dated August 11,

2008, Petitioner's counsel was authorized to withdraw. Because

no response to the Motion was ever filed by his former counsel,

Petitioner was given an additional fifteen days, or until

August 26, 2008, in which to file one. On August 26, 2008,

Petitioner timely filed his Response.

The Motion seeks dismissal of Petitioner's Request for

Administrative Hearing (Request) on two grounds: (1) the

matters raised in the Request have been previously adjudicated

in prior administrative cases and he is barred by the doctrines

of collateral estoppel and res judicata from relitigating those

matters, and (2) the Request fails to comply with the

requirements of Florida Administrative Code Rule 28-106.201(2)

and Section 120.569(2)(c), Florida Statutes (2007). GPG also

seeks attorney's fees and/or sanctions under Sections 57.105(5)

and 120.569(2)(e), Florida Statutes (2007), on the theory that

the Request was filed for an improper purpose, and it seeks fees

and costs under Section 120.595(1), Florida Statutes (2007), on

the theory that Petitioner participated in this proceeding for

an improper purpose by seeking to harass GPG or delay or

increase the costs of the project.

Based upon prior administrative cases in which Petitioner,

the District, and related parties have been involved, of which

the undersigned has taken official recognition, the lengthy

history of this matter can be briefly summarized as follows.

Petitioner owns land in southern Pasco County, Florida, which

abuts State Road 54 to the south and lies directly west of two

parcels of property for which Environmental Resource Permits

(ERPs) have been issued. The larger (and most northern) parcel

consists of 266.34 acres and is known as the Ashley Glen parcel.

In 2006, the District issued an ERP authorizing the construction

of a surface water management system to serve a proposed

residential subdivision on the Ashley Glen parcel. See Blanco

v. Southwest Florida Water Management District, Entryway

Developers, LLC, and Westfield Homes of Florida , Case No. 04-

0003, 2003 (sic) Fla. Div. Adm. Hear. LEXIS 1255 (DOAH Dec. 17,

2004, SWFWMD Jan. 25, 2005)(Blanco I); Blanco v. Westfield Homes

of Florida and Southwest Florida Water Management District , DOAH

Case No. 05-3274, 2006 Fla. Div. Adm. Hear. LEXIS 144 (DOAH

April 10, 2006, SWFWMD May 30, 2006)(Blanco II), aff'd Blanco v.

Southwest Florida Water Management District, et al. , 955 So. 2d

573 (Fla. 2d DCA 2007). The ERP approved in Blanco II

authorizes the entire filling of a small isolated wetland in the

southeast corner of the smaller parcel known as Wetland B-12,

whose eastern third would be occupied by Ashley Glen Boulevard,

a roadway designed to serve the larger parcel. When

constructed, the road will begin on State Road 54 and run

northward generally bisecting both the smaller and larger

parcels. The second (and most southern) parcel, which is 36.7

acres, was the subject of another ERP application filed on

April 25, 2006. At the conclusion of that proceeding, the

District issued ERP Permit No. 43024788.004 authorizing the

construction of a surface water management system for a

commercial development on that property. See Blanco v. Win-

Suncoast, Ltd and Southwest Florida Water Management District ,

DOAH Case No. 07-3945 (DOAH Feb. 14, 2008, SWFWMD Mar. 25,

2008)(Blanco III). The District's Final Order in Blanco III has

been appealed to the Second District Court of Appeal. See

Blanco v. Southwest Florida Water Management District , Case No.

2D08-2012.

In this case (Blanco IV), the District has proposed to

modify the recently issued ERP Permit No. 43024788.004 to

authorize the construction of an on-site surface water

management system for a 1.72-acre outparcel, which connects to

the master surface water management system for the commercial

development being constructed on the smaller parcel. The terms

of the permit provide that all water quantity and water quality

treatment is provided by the master system, and the permit does

not authorize wetland impacts.

In Blanco I, a determination was made by both the

Administrative Law Judge and the District that impacts to

Wetland B-12 were unavoidable and that the proposed mitigation

was sufficient. In Blanco II, the Administrative Law Judge

officially recognized the findings in Blanco I and barred

Petitioner from attempting to relitigate matters adjudicated in

Blanco I, including the impacts to Wetland B-12, under the

doctrines of collateral estoppel and res judicata. This ruling

was reaffirmed by the District and later by an appellate court.

In Blanco III, the Administrative Law Judge officially

recognized the final orders in Blanco I and II and barred

Petitioner from relitigating "issues regarding the character and

function of Wetland B-12, . . . the alignment and minimization

of impacts caused by [Ashley Glen Boulevard], and wildlife

studies for wetlands on its property." However, because the

applicant in Blanco III proposed new mitigation for the loss of

Wetland B-12, the Administrative Law Judge made a determination

(which was later approved by the District) that the functional

gain from the proposed new mitigation offset the functional loss

from its filling.

Here, a fair reading of the Request is that it is based

wholly upon "Proposed Impacts to Wetland B12." Based upon the

doctrines of collateral estoppel and res judicata, Petitioner is

again barred from raising issues and litigating in this case

matters that were resolved in the earlier Blanco decisions.

These include allegations concerning the location and

construction of Ashley Glen Boulevard, the nature and function

of Wetland B-12, the impacts to Wetland B-12, and the adequacy

of the master surface water management system for the project.

Because the Request only raises issues previously decided in

Blanco I, II, and III, the Request should be dismissed.

GPG argues that the dismissal should be with prejudice

since it is apparent from the face of the Request that

Petitioner will not be able to cure the defects in his pleading.

This becomes apparent after considering Petitioner's Response,

which states that his primary concern in requesting a hearing in

Blanco IV is to subpoena a Department of Transportation employee

who will testify that Ashley Glen Boulevard can be constructed

without impacting Wetland B-12. His secondary concern is that

both the Administrative Law Judge and the District failed to

discover in Blanco I that a violation of Florida Administrative

Code Rule 40D-4.101(2) occurred because the application filed on

February 7, 2003, was not signed by the actual landowner or

landowner's agent. The first issue amounts to an effort to

again relitigate the location and construction of Ashley Glen

Boulevard and associated impacts to Wetland B-12. Under the

doctrines of collateral estoppel and res judicata, Petitioner is

barred from retrying these issues. To hold otherwise would

allow a third party to litigate the same issue in multiple cases

so long as a witness could be found who disagreed with related

findings made in the original proceeding. As to the second

issue, the time to raise this alleged deficiency in the Blanco I

application has long since passed. In view of this, the

dismissal should be with prejudice. This ruling renders moot

that portion of the Motion seeking dismissal of the Request on

the ground it fails to comply with the requirements of a statute

and rule. Finally, the final hearing on November 5 and 6, 2008,

is canceled.

Section 120.595(1), Florida Statutes (2007), requires that

in any proceeding in which the administrative law judge

determines that a party participated for an improper purpose,

the recommended order shall "so designate and shall determine

the award of costs and attorney's fees." Although the parties

have not addressed the issue, the statute arguably comes into

play even under circumstances such as this where an evidentiary

hearing on the merits of the challenge has not been conducted,

but rather the outcome is decided on the basis of a motion to

dismiss. Section 57.105(5), Florida Statutes (2007), authorizes

the entry of a final order for the purpose of awarding "a

reasonable attorney's fee and damages" to be paid to the

prevailing party by the losing party and his attorney in an

administrative action. Section 120.569(2)(e), Florida Statutes

(2007), authorizes the entry of a final order awarding sanctions

(which may include expenses and attorney's fees) upon a

determination that a party has filed a paper for an improper

purpose. GPG's Motion for Fees and Costs seeks relief under

each of these statutes. Because final disposition of the

Recommended Order of Dismissal is required before the request

for an attorney's fee, damages, and sanctions can be determined,

and because further evidence is necessary before a determination

can be made that Petitioner participated in this case for an

improper purpose, and if so, the amount of costs and attorney's

fees, jurisdiction is retained in this matter for the limited

purpose of considering all three claims until after a final

disposition of the Recommended Order of Dismissal is made by the

District, if such claims are renewed within thirty days after

the entry of a final order. Based on the foregoing, it is

RECOMMENDED that a final order be entered dismissing, with

prejudice, Petitioner's Request for Administrative Hearing.

Jurisdiction is retained in this matter, however, for the

limited purpose of considering the requests for fees, costs, and

sanctions if such requests are renewed within thirty days after

a final order is entered.

DONE AND ENTERED this 3rd day of September, 2008, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of September, 2008.

COPIES FURNISHED:

Dr. Octavio Blanco

22537 Laureldale Drive

Lutz, Florida 33549-8786

Jason L. Smith, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604-6899

David Smolker, Esquire

Bricklemyer, Smolker & Bolves, P.A.

500 East Kennedy Boulevard, Suite 200

Tampa, Florida 33602-4936

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.