08-005528 Southwest Florida Water Management District vs. William Going Status: Closed Recommended Order on Wednesday, March 11, 2009.

Summary: It is recommended that Respondent pay a $500 fine and be assessed five points against his water well contractor license for constructing irrigation wells without a permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 08-5528

)

WILLIAM GOING, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on

February 6, 2009, by video teleconference, at sites in

Tallahassee and Tampa, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner Southwest Florida Water Management District:

Adrienne Ellen Vining, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 36404-6899

For Respondent William Going:

Charles Going, Qualified Representative

c/o William Going

4645 86th Avenue North

Pinellas Park, Florida 33782-5714

STATEMENT OF THE ISSUE

The issue to be decided is whether William Going failed to

obtain a permit before installing water wells in Palm Harbor,

Pinellas County, Florida, as required by the statutes and rules

administered by the District under Chapter 373, Florida Statutes

(2007) 1 , and, if so, whether the District’s proposed penalties

are reasonable and appropriate.

PRELIMINARY STATEMENT

On or about August 15, 2008, Petitioner Southwest Florida

Water Management District (District) issued an Administrative

Complaint and Order (Complaint) pursuant to Sections 373.119 and

373.333, Florida Statutes, against Respondent William Going.

The Complaint charged Respondent with violating Section

373.313(1), Florida Statutes, and Florida Administrative Code

Rule 40D-3.041(1), for failing to obtain a well construction

permit before constructing certain water wells. On

September 24, 2008, the District received a request for hearing

from Respondent, which the District dismissed for failing to be

in prescribed form. The District granted Respondent leave to

re-file an amended request for hearing, which Respondent filed

on October 21, 2008. The District then referred the matter to

DOAH to conduct an evidentiary hearing and to issue a

recommended order.

At the hearing, the parties’ Joint Exhibits 1 through 16

were accepted into evidence. The District presented the

testimony of Susan Althoff, Sonia Beau, and William Permenter,

who was accepted as an expert in water well construction.

Respondent’s request to have his son, Charles Going, act as his

representative at the hearing was granted. Respondent testified

on his own behalf. The District’s request for official

recognition of several statutes and rules applicable to water

well construction and disciplinary action was granted.

A transcript of the hearing was filed with DOAH.

Petitioner filed a proposed Recommended Order. No post-hearing

writing was filed by Respondent.

FINDINGS OF FACT

1. The District is the regional agency charged with the

power and duty to administer and enforce the provisions of

Chapter 373, Part III, Florida Statutes, entitled “Regulation of

Wells,” and the rules the District has promulgated pursuant

thereto in Florida Administrative Code Title 40D-3.

2. Respondent William Going is a licensed water well

contractor, holding License No. 1564.

3. On June 1, 2007, the District received a complaint

alleging that Respondent had constructed water wells at 5068

Kernwood Court in Palm Harbor without first obtaining a well

construction permit from the District.

4. A subsequent inspection by the District disclosed that

six “sand point” irrigation wells had been constructed at the

Palm Harbor property, which is the residence of Stephen and

Susan Althoff.

5. The District had no record of a permit application for

the wells and no well construction permit had been issued to

Respondent to construct the wells at the Althoff property.

6. Respondent admits that he constructed the wells at the

Althoff property on June 1, 2007, and that he did so without

first obtaining a well construction permit for the work.

7. The District maintains a website where water well

contractors can apply for water construction permits by filling

out an on-line application. The District’s software program can

automatically issue the permit if the information submitted by

the applicant meets certain programmed parameters.

8. Respondent testified that his wife attempted to access

the website and to apply for the permit to construct the wells

at the Althoff property, but she was unable to do so because she

is not familiar with computers.

9. Neither Respondent, nor his wife, telephoned the

District to speak to the District’s permitting staff before the

work was commenced at the Althoff property.

10. Section 373.313(1), Florida Statutes, provides that in

any geographic area where the Department of Environmental

Protection (DEP) determines that prior permission to construct a

water well would cause “undue hardship,” prior permission will

not be required. Respondent made reference to this statute, but

he did not show that the Althoff property is within a geographic

area where DEP has declared that prior permission is not

required for the construction of water wells. William

Permenter, the District’s Field Technician Supervisor, has been

regulating water well construction for many years, but is

unaware of any such areas being designated.

11. Respondent contends that if he had waited to obtain a

permit before constructing wells at the Althoff property, it

would have created a hardship for him because (1) water well

construction in Pinellas County is very competitive and he

probably would have lost the Althoff job if he had not done the

work immediately; and (2) he would have paid the wages of his

helper without a benefit (to Respondent).

12. Section 337.326, Florida Statutes, establishes a

procedure to seek an exemption from District rules to avoid an

undue hardship. Respondent did not request an exemption from

the District regarding the water wells constructed at the

Althoff property.

13. The competitive disadvantage that a water well

contractor might face in waiting a day (or hours) to obtain a

permit is not an undue hardship.

14. Respondent’s potential loss in having to pay an

employee for “down time” is not an undue hardship.

15. On June 12, 2007, Respondent submitted an application

to the District for a well construction permit for the wells at

the Althoff property and the District issued Respondent a permit

the following day.

16. The Pinellas County Licensing Board issued a citation

against Respondent pursuant to Section 489.127(5), Florida

Statutes. The citation issued by the Board pertained to the

same water wells that are the subject of the District’s

enforcement case. A hearing was held before a Special Master

designated by the Board and was prosecuted by a County employee.

The Special Master issued a final order dismissing the case

against Respondent.

17. On or about August 15, 2008, the District issued its

Complaint against Respondent, which seeks an administrative fine

of $500 and the assessment of five points against Respondent’s

water well contractor license. These penalties are consistent

with the disciplinary guidelines that have been adopted by rule

by the District.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties to and the

subject matter of this case under Sections 120.569, 120.57(1),

and 120.65(7), Florida Statutes. Pursuant to Section 120.65(7),

Florida Statutes, DOAH and the District have entered into a

contract for administrative law judges to conduct hearings for

the District.

19. If the District has reason to believe a violation of

the laws that it administers has occurred, it may file a

complaint against the alleged violator. See § 373.119, Fla.

Stat.

20. The enforcement proceeding initiated against

Respondent by the Pinellas County Licensing Board was the action

of a different governmental entity, was based on different

statutory authority, and pertained to the violation of different

laws. Therefore, the Board’s final action is not binding on the

District. The District’s enforcement action does not cause

Respondent to be tried twice for the same offense.

21. The District has the burden to prove by a

preponderance of the evidence that Respondent has violated the

law as alleged in the Complaint. See St. Johns River Water

Management District v. Modern, Inc. , 784 So. 2d 464 (Fla. 1st

DCA 2001).

22. Section 373.313(1), Florida Statutes, requires prior

permission from the District for the construction of any water

well. 2 Respondent violated this statute when he constructed the

irrigation wells at the Althoff property without first obtaining

a permit.

23. Florida Administrative Code Rule 40D-3.041(1) requires

that a permit be obtained from the District prior to the

construction, repair, modification, or abandonment of any water

well. Respondent violated this rule when he constructed the

irrigation wells at the Althoff property without first obtaining

a permit.

24. Respondent did not present evidence sufficient to

establish mitigating factors that would justify the reduction of

the proposed penalties.

25. The District’s proposed disciplinary action is fair

and reasonable under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the District issue a Final Order that

imposes the penalties set forth in its Administrative Complaint

and Order, dated August 15, 2008.

DONE AND ENTERED this 11th day of March, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March, 2009.

ENDNOTES

1 / All references to the Florida Statutes are to the 2007

codification.

2 / This section refers to the “department,” but the water

management districts are authorized to exercise any power

authorized to be exercised by the Department of Environmental

Protection. See § 373.308(2), Fla. Stat.

COPIES FURNISHED :

Adrienne Ellen Vining, Esquire

Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 36404-6899

William Going

DBA Going Irrigation

4645 86th Avenue North

Pinellas Park, Florida 33782-5714

David L. Moore, Executive Director

Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34604-6899

NOTICE OF RIGHT TO SUBMIT 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.