18-004498BID Helicopter Applicators, Inc. vs. Coastal Air Service, Inc., And South Florida Water Management District
 Status: Closed
Recommended Order on Thursday, November 15, 2018.


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Summary: Petitioner did not prove that the District's intended award of the contract to Respondent, Coastal, was contrary to the bid specifications.

1STANDARD OF REVIEW FOR RECOMMENDED ORDERS

7I. FINDINGS OF FACT

11Section 120.57, Florida Statutes, prescribes that an agency reviewing a

21recommended order may not reject or modify an ALJ's findings, "unless the agency first

35determines from a review of the entire record, and states with particularity in the order,

50that the findings of fact were not based on competent substantial evidence ... " Stokes v.

65Bd. of Prof'/ Eng'rs, 952 So. 2d 1224, 1225 (Fla. 1st DCA 2007); see also Padron v. Dep't

83of Envtl. Prot., 143 So. 3d 1037, 1041 (Fla. 3d DCA 2014). The term "competent

98substantial evidence" does not relate to the quality, character, convincing power,

109probative value or weight of the evidence. See Scholastic Book Fairs, Inc. v.

122Unemployment Appeals Comm'n, 671 So. 2d 287, 289 n. 3 (Fla. 5th DCA 1996). Rather,

"137competent substantial evidence" refers to the existence of some evidence for each

149essential element and as to its admissibility under the rules of evidence. /d.

162A reviewing agency may not reweigh the evidence presented at the Division of

175Administrative Hearings ("DOAH") final hearing, reject an ALJ's findings of fact if

189supported by the record, or judge the credibility of the witnesses. See, e.g., Heifetz v.

204Dep't of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).; Rogers v. Oep't of

221Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005) (citing, Aldrete v. Oep't of Health, Bd. of

239Med., 879 So. 2d 1244, 1246 (Fla. 1st DCA 2004); Pillsbury v. Oep't of Health and Rehab.

256Svcs., 744 So. 2d 1040, 1041 (Fla. 2d DCA 1999)). If the record shows competent

271substantial evidence to support an ALJ's factual findings, then "it is irrelevant that there is

286also competent substantial evidence to support a contrary finding." See, e.g., Arand

298Constr. Co. v. Oyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991) (citing, Conshor, Inc. v.

315Roberts, 498 So. 2d 622, 623 (Fla. 1st DCA 1986)). As the "fact-finder", these evidentiary­

330related matters are within the ALJ's province. See, e.g., Tedder v. Fla. Parole Comm'n,

344842 So. 2d 1022, 1025 (Fla. 1st DCA 2003); Heifetz, 475 So. 2d at 1281.

359The ALJ may draw permissible inferences from the evidence and make ultimate

371findings based thereon. See Tedder, 842 So. 2d at 1025. An ultimate fact is a mixture of

388fact and law defined as "[t]hose facts found in that vaguely defined field lying between

403evidential facts on the one side and the primary issue or conclusion of law on the other,

420being but the logical results of the proofs, or, in other words, mere conclusions of fact."

436Tedder v. Fla. Unemployment Appeals Comm'n, 697 So. 2d 900, 902 (Fla. 2d DCA 1997)

451(Danahy, P. concurring) (citing, Black's Law Dictionary 1365 (5th ed. 1979)). An ultimate

464finding of fact is still a finding of fact which is solely in the province of the ALJ. /d. at 902.

485An agency should not reject an ALJ's ultimate findings that deal with "factual issues

499susceptible of ordinary methods of proof that are not infused with [agency] policy

512considerations ... " Heifetz at 1281-82. "[An] agency is not authorized to weigh the

525evidence presented, judge credibility of witnesses or otherwise interpret the evidence to

537fit its desired ultimate conclusion." /d. at 1281. Such evidentiary rulings are within the

551ALJ's sound "prerogative ... as the finder of fact." An agency may only alter an ALJ's

567ultimate finding of fact if it is not supported by competent substantial evidence. Homles v.

582Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985).

592Further, the ALJ's decision to accept one witness' testimony over another serves

604as an evidentiary ruling that should not be altered by a reviewing agency. See, e.g., Peace

620River/Manasota Reg'/ Water Supply Auth. v. fMC Phosphates Co., 18 So. 3d 1079, 1082

634(Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep't of Health & Rehabilitative Servs.,

649462 So. 2d 83, 85 (Fla. 1st DCA 1985). An agency has no authority to make independent

666or supplemental findings of fact. See, e.g., City of N. Port, Fla. v. Canso/. Minerals, Inc.,

682645 So. 2d 485, 487 (Fla. 2d DCA 1994) ("The agency's scope of review of the facts is

701limited to ascertaining whether the hearing officer's factual findings are supported by

713competent substantial evidence."); Manasota 88, Inc. v. Tremor, 545 So. 2d 439, 441

727(Fla. 2d DCA 1989) (citing, Friends of Children v. Dep't of Health & Rehabilitative Servs.,

742504 So. 2d 1345 (Fla. 1st DCA 1987) (an agency reviewing an ALJ's proposed order has

758no authority to make independent and supplementary findings of fact to support

770conclusions of law in the agency's final order).

778II. CONCLUSIONS OF LAW

782Section 120.57, Florida Statutes, authorizes an agency to reject or modify an ALJ's

795conclusions of law and interpretations of administrative rules "over which it has

807substantive jurisdiction." see also Barfield v. Oep't of Health, Bd. of Dentistry, 805 So. 2d

8221008, 1011 (Fla. 1st DCA 2001); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d

8381140, 1143 (Fla. 2d DCA 2001). An agency can only review legal conclusions in a

853recommended order that concern matters within the agency's field of expertise. See, e.g.,

866G.E.L. Corp. v. Dep't of Envtl. Prot., 875 So. 2d 1257, 1263-64 (Fla. 5th DCA 2004); State

883Contracting & Eng'g Corp. v. Dep't of Transp., 709 So. 2d 607 (Fla. 1st DCA 1998).

899If an ALJ improperly labels a conclusion of law as a finding of fact, an agency

915should disregard the label and treat the item as though it were labeled correctly. See,

930e.g., Battaglia Properties, Ltd. v. Fla. Land & Water Adjudicatory Comm'n, 629 So. 2d

944161, 168 (Fla. 5th DCA 1993). Further, an agency may not label an ultimate factual

959determination as a "conclusion of law" to modify or overturn what it may view as an

975unfavorable finding of fact. See, e.g., Stokes, 952 So. 2d at 1225 (quoting Kinney v. Oep't

991of State, Div. of Licensing, 501 So. 2d 129, 132 (Fla. 5th DCA 1987)).

1005An agency's principal responsibility includes interpreting statutes that fall within the

1016agency's regulatory jurisdiction and expertise. See Pub. Emps. Relations Comm'n v.

1027Dade County Police Benevolent Ass'n, 467 So. 2d 987, 989 (Fla. 1985); see also Manatee

1042Educ. Ass'n, FEA, AFT (Local3821) v. Sch. Bd. of Manatee Cty., 62 So. 3d 1176, 1183

1058(Fla. 1st DCA 2011 ). Courts should defer to an agency's interpretation of statutes and

1073rules when such statutes and rules fall within the agency's regulatory jurisdiction. See

1086Dep't of Envtl. Regulation v. Goldring, 4 77 So. 2d 532, 534 (Fla. 1985). Further, an

1102agency's interpretation does not have to be the only reasonable interpretation as long as

1116the interpretation is "permissible". See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl.

1131Prot., 668 So. 2d 209, 212 (Fla. 1st DCA 1996). Courts may not overturn an agency

1147interpretation unless it is "clearly erroneous." See Goldring at 534; Falk v. Beard, 614 So.

11622d 1086, 1089 (Fla. 1993). Yet, an agency is prohibited from rejecting or modifying a

1177conclusion of law to form the basis for rejecting or modifying a finding of fact. §

1193120.57(1)(1), Fla. Stat.

1196Ill. BID PROTESTS

1199The standard of review in this proceeding where an agency procurement decision

1211is contested is also governed by Section 120.57(3), Florida Statutes, and established

1223Florida case law. "In the context of bid protests, a public body has wide discretion in the

1240bidding process and its decision, when based on an honest exercise of the discretion,

1254should not be overturned even if reasonable persons might disagree." AT&T Corp. v.

1267State., Dep't of Mgmt. Servs., 201 So. 3d 852, 854 (Fla. 1st DCA 2016).

1281Section 120.57(3) reads, in pertinent part, as follows:

1289(f) Unless otherwise provided by statute, the burden of proof

1299shall rest with the party protesting the proposed agency

1308action. In a competitive-procurement protest, other than a

1316rejection of all bids, proposals, or replies, the administrative

1325law judge shall conduct a de novo proceeding to determine

1335whether the agency's proposed action is contrary to the

1344agency's governing statutes, the agency's rules or policies, or

1353the solicitation specifications. The standard of proof for such

1362proceedings shall be whether the proposed agency action

1370was clearly erroneous, contrary to competition, arbitrary, or

1378capricious.

1379If there are disputed issues of material fact, the de novo hearing under Section

1393120.57(3)(f), Florida Statutes, is subject to the same procedural requirements as other

1405formal hearings held pursuant to Section 120.57(1). See§ 120.57(3)(d)(3), Fla. Stat. It is

1418the responsibility of the administrative law judge under Section 120.57(d)(f), Florida

1429Statutes, to "determine whether the agency's proposed [procurement] action is contrary

1440to the agency's governing statutes, the agency's rules or policies, or the solicitation

1453specifications," and the burden of proof is on "the party protesting the proposed agency

1467action."

1468Florida case law constructing Section 120.57(3)(f), Florida Statutes, concludes that

1478the phrase "de novo proceeding" set forth therein is used to describe a somewhat different

1493administrative proceeding from that normally conducted under Section 120.57(1), Florida

1503Statutes. See State Contracting and Eng'g Corp. v. Dep't of Transp., 709 So. 2d 607 (Fla.

15191st DCA 1998). In a typical Section 120.57(1) hearing, the administrative law judge

1532essentially sits in the place of the agency being challenged; and this de novo proceeding

1547is designed not to review prior agency action, but to formulate final agency action on the

1563matter being contested. See, e.g., Hamilton County Bd. of Cty. Comm'rs v. Oep't of Envtl.

1578Regulation, 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991 ).

1589In contrast, the First District Court of Appeal of Florida found that the de novo

1604proceeding described in Section 120.57(3)(f) is a "form of intra-agency review" where the

1617object of the proceeding is to "evaluate the [prior] action taken by the agency," rather than

1633to formulate final agency action. State Contracting, 709 So. 2d at 609. The State

1647Contracting opinion cites with approval to Intercontinental Props., Inc. v. State Dep't of

1660Health & Rehab. Servs., 606 So. 2d 380 (Fla. 3d DCA 1992), interpreting the phrase "de

1676novo hearing" as used in bid protest proceedings before the 1996 revision of the APA.

1691State Contracting at 609. On page 386 of its Intercontinental Properties opinion, the court

1705concluded as follows:

1708Although the hearing before the hearing officer was a de novo

1719proceeding, that simply means that there was an evidentiary

1728hearing during which each party had a full opportunity to

1738develop an evidentiary record for administrative review

1745purposes. It does not mean, as the hearing officer apparently

1755thought, that the hearing officer sits as a substitute for the

1766Department and makes a determination whether to award the

1775bid de novo.

1778The State Contracting "intra-agency review" interpretation of a Section 120.57(3)(f)

1788de novo proceeding actually results in a proceeding having the "hybrid nature of an

1802appellate trial." See Syslogic Technology Services v. South Florida Water Management

1813District, 26 FALR 1368, 1382 (Fla. SFWMD 2002), appeal dismissed without a published

1826opinion, 819 So. 2d 771 (Fla. 2d DCA 2002); and R.N. Expertise, Inc. v. Miami-Dade Cty.

1842Sch. Bd., DOAH Case No. 01-2663BID, 2002 WL 182217, adopted in toto March 14,

18562002, affirmed without a published opinion, 875 So. 2d 1251 (Fla. 5th DCA 2004).

1870The Syslogic Technology Services and R.N. Expertise Final Orders adopt a

1881detailed analysis of the "standard of review" issue under Section 120.57(3)(f), Florida

1893Statutes. Although designated as a "standard of proof' in Section 120.57(3)(f), Florida

1905Statutes, the terms "clearly erroneous," "arbitrary," or "capricious" are recognized review

1916standards, rather than standards of proof normally applicable in evidentiary hearings.

1927Sys/ogic Technology Services, 26 FALR at 1380. This "standard of review" interpretation

1939of Section 120.57(3)(f), Florida Statutes, was adopted without any modifications by the

1951South Florida Water Management District in its Final Order. !d. at 1368. This

1964interpretation of Section 120.57(3)(f), Florida Statutes, in the Sys/ogic Technology

1974Services case and the R.N. Expertise case is reasonable and persuasive. Accordingly,

1986in preparing this Final Order, the standard of review applied in determining the propriety

2000of the Department's proposed award was whether this action was "clearly erroneous,

2012contrary to competition, arbitrary, or capricious."

2018RULING ON EXCEPTIONS

2021I. GENERALLY

2023Florida's case law holds that parties to formal administrative proceedings must

2034alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the

2048ALJ's findings of fact by filing exceptions to the ALJ's Recommended Order. See, e.g.,

2062Comm'n on Ethics v. Barker, 677 So. 2d 254, 256 (Fla. 1996); Henderson v. Dep't of

2078Health, Bd. of Nursing, 954 So. 2d 77, 81 (Fla. 5th DCA 2007). If a party does not file

2097exceptions to findings of fact, the party "has thereby expressed its agreement with, or at

2112least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v.

2127Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical

2142Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th

2160DCA 2003).

2162In reviewing a recommended order and any written exceptions, the agency's final

2174order "shall include an explicit ruling on each exception."§ 120.57(1)(k), Fla. Stat. The

2188agency need not rule on an exception that "does not clearly identify the disputed portion

2203of the recommended order by page number or paragraph, that does not identify the legal

2218basis for the exception, or that does not include appropriate and specific citations to the

2233record." /d.

2235II. RULING ON HAl'S EXCEPTIONS

2240HAl's Exceptions Generally

2243The District is not required to include an explicit ruling on exceptions that do not

2258comply with Section 120.57(1)(k), Florida Statutes. HAl raised three exceptions to the

2270Recommended Order. One of the exceptions fails to comply with the requirements of

2283Section 120.57(1 )(k), Florida Statutes, because it does not clearly identify the disputed

2296portion of the Recommended Order. Despite HAl's failure to comply with the statutory

2309requirements, the District has tried to determine what HAl's exception is and rule on it.

2324Exception 1

2326(Finding of Fact 31)

2330In Exception 1, HAl claims that the ALJ's statement that Coastal has the ability to

2345obtain the required insurance coverage is not supported by competent substantial

2356evidence. (Pet. Except. 6; Exhibit 31 ). The ALJ relied on a letter from Coastal's

2371insurance provider and HAl's own witness, Johanna Labrada, the District's Bureau Chief

2383of Procurement, to permissibly infer that Coastal would be capable of fulfilling all

2396necessary insurance requirements. The letter states, "[a]ll required coverage and

2406amounts are available to Coastal Air Service, Inc. to fulfill the requirements of this

2420contract." (Jnt. Ex. 1, p. 229; RO 27). Ms. Labrada testified that she believed Coastal's

2435insurance letter met the RFB's insurance requirements. (Hr'g Transcript, 46: 2-12). These

2447pieces of evidence constitute competent substantial evidence to support the ALJ's finding

2459of fact. The District is not authorized to reweigh this evidence.

2470Therefore, HAl's Exception 1 is denied.

2476Exception 2

2478(Finding of Fact 18 and 34)

2484In Exception 2, HAl did not correctly identify a disputed portion of the

2497Recommended Order. Instead, HAl merely asserted that the ALJ's finding that the

2509District's intended award to Coastal is consistent with the RFB specifications is erroneous.

2522Because HAl did not clearly explain the disputed portions of the Recommended Order,

2535this District is guessing that HAl is challenging Findings of Fact 18 and 34. These two

2551findings focus on the two RFB specifications discussed at the hearing: the insurance

2564requirement and the aircraft certification requirement. (Pet'r Except. ,-r 7; Exhibit "A" ,-r,-r 18

2579and 34). The RFB required Coastal to provide Part 137 Certificates for at least two

2594helicopters and it required Coastal to demonstrate its ability to obtain the required

2607insurance coverage.

2609The ALJ found that Coastal complied with all RFB specifications. First, the ALJ

2622found that Coastal's bid, which listed five aircrafts with Part 137 Certificates, exceeded

2635the RFB requirements. (Exhibit "A" ,-r 18). Second, as previously explained, the ALJ relied

2649on Coastal's insurance letter and Ms. Labrada's testimony to find that Coastal was eligible

2663for the insurance coverage required by the RFB. (Exhibit "A" ,-r 34; Hr'g Transcript, 46: 2-

267912).

2680Thus, there was competent substantial evidence to support the ALJ's finding that

2692the District's intended award to Coastal is consistent with the RFB specifications. Because

2705both findings of fact were supported by competent substantial evidence, the District must

2718accept them.

2720Therefore, HAl's Exception 2 is denied.

2726Exception 3

2728(Ultimate Finding of Fact 53)

2733In Exception 3, HAl argues that "the ALJ attempted to distinguish [Syslogic's]

2745clearly relevant holding by highlighting a purported key factual distinction." (Pet'r Except.

,2757-r 1 0). During the hearing, HAl relied on Sys/ogic to show that it met its burden of proof.

2776HAl asserts that Syslogic is factually similar to this case because the District had no

2791assurance that its contractor was capable of obtaining the necessary insurance required

2803to perform the contract.

2807HAl's Exception 3 is actually challenging an ultimate finding of fact, which is clearly

2821within the realm of the ALJ's fact-finding discretion. An "ultimate fact" is a mixture of fact

2837and law defined as "[t]hose facts found in that vaguely defined field lying between

2851evidential facts on the one side and the primary issue or conclusion of law on the other,

2868being but the logical results of the proofs, or, in other words, mere conclusions of fact."

2884See Tedder, 697 So. 2d at 902.

2891The ALJ thoroughly reviewed Syslogic and through ordinary methods of proof,

2902such as weighing the evidence and judging the credibility of witnesses, concluded that

2915Sys/ogic's analysis holding was not applicable in this case. Based on clear factual

2928distinctions, the ALJ made a reasonable interpretation of the law in Syslogic to come to

2943the ultimate conclusion that Sys/ogic does not control the outcome of HAl's Petition as

2957HAl argued. Because there are no overriding policy considerations at issue here and

2970because the finding is supported by competent substantial evidence it would be improper

2983for the District to reject or modify the ALJ's ultimate finding in Paragraph 53.

2997Additionally, the key distinguishing fact that led to the ALJ's conclusion was Finding

3010of Fact 31, which HAl has taken exception to. To grant HAl's Exception 3 the District

3026would be required to accept HAl's exception to Finding of Fact 31 where the ALJ found

3042that Coastal's insurance letter was competent substantial evidence to establish that

3053Coastal can fulfill all necessary insurance requirements as specified by the RFB. Since

3066the District denied HAl's Exception 1, and it must deny Exception 3.

3078Therefore, HAl's Exception 3 is denied.

3084ORDER

3085Having reviewed the Recommended Order, the exceptions and responses to

3095exceptions, and the record of the proceeding before DOAH, and having considered the

3108applicable law, and being otherwise fully advised in the premises, it is ORDERED that:

31221. Helicopter Applicators, Inc.'s exceptions are denied for the reasons set forth

3134above;

31352. The Recommended Order ("Exhibit A") is adopted in its entirety, except that

3150on page 18 of the Recommended Order "Southwest Florida Water Management District"

3162is changed to "South Florida Water Management District";

31703. Contract No. 4600003819 is awarded to Coastal Air Service, Inc. for aerial

3183application services, granular application services, and aerial transport services;

31924. Contract No. 4600003818 is awarded to Helicopter Applicators, Inc. for spot

3204spraying services; and

32075. A Notice of Rights is attached as "Exhibit B."

3217Pursuant to Section 1 01-22(b ), South Florida Water Management District Policies and

3230Procedures, the Governing Board delegated to the Executive Director authority to execute

3242final orders following Governing Board action.

3248DONE AND ORDERED ; this 1 '-( th day of December 2018, West Palm Beach,

3262Florida 33406.

3264CERTIFICATE OF SERVICE

3267I certify that a true and correct copy of the foregoing was furnished by electronic

3282mail on this 1 L/ · ttl. day of December 2018, to all counsel of record as listed below.

3301SOUTH FLORIDA WATER

3304MANAGEMENT DISTRICT

3306SERVICE LIST

3308Michael W . Marcil, Esquire Timothy B . Elliott, Esquire

3318Lawrence G. Horsburg , Esquire Geoffrey D . Smith, Esquire

3327Gunster, Yoakley & Stewart, P.A Stephen B . Burch, Esquire

3337Suite 1400 Smith & Associates

3342450 East Las Olas Bouleva r d Suite 201

3351Fort Lauderdale, Florida 33301 3301 Thomasville Road

3358mmarcil@gunster.com Tallahassee , Florida 32308

3362lhorsburgh@gunster.com tim@smithlawtlh . com

3366eservice@gunster.com geoff@smithlawtlh .com

3369lvanegas@gunster . com stephen@smithlawtlh.com

3373Julia G . Lamonica, Esquire

3378Frank M . Mendez, Esquire

3383Brian J . Accardo , Esquire

3388South Florida Water Management District

33933301 Gun Club Road, MSC 1410

3399West Palm Beach, Florida 33406

3404(561) 682-6210

3406jlomonic@sfwmd . gov

3409fmendez@sfwmd .gov

3411baccardo@sfwmd .gov

3413litigation@sfwmd . gov

3416EXHIBIT "B"

3418NOTICE OF RIGHTS

3421As required by Sections 120.569 and 120.60(3), Fla. Stat., the following is notice of the opportunities which

3438may be available for administrative hearing or judicial review when the substantial interests of a party are

3455determined by an agency. Please note that this Notice of Rights is not intended to provide legal advice. Not

3474all of the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to

3492consult an attorney regarding your legal rights.

3499RIGHT TO REQUEST ADMINISTRATIVE HEARING

3504A person whose substantial interests are or may be affected by the South Florida Water Management District's

3521(SFWMD or District) action has the right to request an administrative hearing on that action pursuant to

3538Sections 120.569 and 120.57, Fla. Stat. Persons seeking a hearing on a SFWMD decision which affects or

3555may affect their substantial interests shall file a petition for hearing with the Office of the District Clerk of the

3575SFWMD, in accordance with the filing instructions set forth herein, within 21 days of receipt of written notice of

3594the decision, unless one of the following shorter time periods apply: (1) within 14 days of the notice of

3613consolidated intent to grant or deny concurrently reviewed applications for environmental resource permits and

3627use of sovereign submerged lands pursuant to Section 373.427, Fla. Stat.; or (2) within 14 days of service of

3646an Administrative Order pursuant to Section 373.119(1), Fla. Stat. "Receipt of written notice of agency

3661decision" means receipt of written notice through mail, electronic mail, or posting that the SFWMD has or

3678intends to take final agency action, or publication of notice that the SFWMD has or intends to take final agency

3698action. Any person who receives written notice of a SFWMD decision and fails to file a written request for

3717hearing within the timeframe described above waives the right to request a hearing on that decision.

3733If the District takes final agency action which materially differs from the noticed intended agency decision,

3749persons who may be substantially affected shall, unless otherwise provided by law, have an additional Rule

376528-106.111, Fla. Admin. Code, point of entry.

3772Any person to whom an emergency order is directed pursuant to Section 373.119(2), Fla. Stat., shall comply

3789therewith immediately, but on petition to the board shall be afforded a hearing as soon as possible.

3806A person may file a request for an extension of time for filing a petition. The SFWMD may, for good cause,

3827grant the request. Requests for extension of time must be filed with the SFWMD prior to the deadline for filing

3847a petition for hearing. Such requests for extension shall contain a certificate that the moving party has

3864consulted with all other parties concerning the extension and that the SFWMD and any other parties agree to

3882or oppose the extension. A timely request for an extension of time shall toll the running of the time period for

3903filing a petition until the request is acted upon.

3912FILING INSTRUCTIONS

3914A petition for administrative hearing must be filed with the Office of the District Clerk of the SFWMD. Filings

3933with the Office of the District Clerk may be made by mail, hand-delivery, or e-mail. Filings by facsimile will not

3953be accepted. A petition for administrative hearing or other document is deemed filed upon receipt during

3969normal business hours by the Office of the District Clerk at SFWMD headquarters in West Palm Beach,

3986Florida. The District's normal business hours are 8:00 a.m. - 5:00 p.m., excluding weekends and District

4002holidays. Any document received by the Office of the District Clerk after 5:00 p.m. shall be deemed filed as of

40228:00a.m. on the next regular business day. Additional filing instructions are as follows:

4035• Filings by mail must be addressed to the Office of the District Clerk, 3301 Gun Club Road, West Palm

4055Beach, Florida 33406.

4058Rev. 11/08/16

4060• Filings by hand-delivery must be delivered to the Office of the District Clerk. Delivery of a petition to

4079the SFWMD's security desk does not constitute filing. It will be necessary to request that the

4095SFWMD's security officer contact the Office of the District Clerk. An employee of the SFWMD's

4110Clerk's office will receive and file the petition.

4118• Filings by e-mail must be transmitted to the Office of the District Clerk at clerk@sfwmd.gov. The filing

4136date for a document transmitted by electronic mail shall be the date the Office of the District Clerk

4154receives the complete document. A party who files a document by e-mail shall (1) represent that the

4171original physically signed document will be retained by that party for the duration of the proceeding

4187and of any subsequent appeal or subsequent proceeding in that cause and that the party shall

4203produce it upon the request of other parties; and (2) be responsible for any delay, disruption, or

4220interruption of the electronic signals and accepts the full risk that the document may not be properly

4237filed.

4238INITIATION OF AN ADMINISTRATIVE HEARING

4243Pursuant to Sections 120.54(5)(b)4. and 120.569(2)(c), Fla. Stat., and Rules 28-106.201 and 28-106.301, Fla.

4257Admin. Code, initiation of an administrative hearing shall be made by written petition to the SFWMD in legible

4275form and on 8 1/2 by 11 inch white paper. All petitions shall contain:

4289I. Identification of the action being contested, including the permit number, application number, SFWMD

4303file number or any other SFWMD identification number, if known.

43132. The name, address, any email address, any facsimile number, and telephone number of the petitioner

4329and petitioner's representative, if any.

43343. An explanation of how the petitioner's substantial interests will be affected by the agency

4349determination.

43504. A statement of when and how the petitioner received notice of the SFWMD's decision.

43655. A statement of all disputed issues of material fact. If there are none, the petition must so indicate.

43846. A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends

4400warrant reversal or modification of the SFWMD's proposed action.

44097. A statement of the specific rules or statutes the petitioner contends require reversal or modification of

4426the SFWMD's proposed action.

44308. If disputed issues of material fact exist, the statement must also include an explanation of how the

4448alleged facts relate to the specific rules or statutes.

44579. A statement of the relief sought by the petitioner, stating precisely the action the petitioner wishes the

4475SFWMD to take with respect to the SFWMD's proposed action.

4485MEDIATION

4486The procedures for pursuing mediation are set forth in Section 120.573, Fla. Stat., and Rules 28-106.111 and

450328-106.401-.405, Fla. Admin. Code. The SFWMD is not proposing mediation for this agency action under

4518Section 120.573, Fla. Stat., at this time.

4525RIGHT TO SEEK JUDICIAL REVIEW

4530Pursuant to Section 120.68, Fla. Stat., and in accordance with Florida Rule of Appellate Procedure 9.11 0, a party

4549who is adversely affected by final SFWMD action may seek judicial review of the SFWMD's final decision by filing

4568a notice of appeal with the Office of the District Clerk of the SFWMD in accordance with the filing instructions set

4589forth herein within 30 days of rendition of the order to be reviewed, and by filing a copy of the notice with the clerk

4613of the appropriate district court of appeal.

4620Rev. 11/08/16 2

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Date
Proceedings
PDF:
Date: 12/14/2018
Proceedings: Agency Final Order
PDF:
Date: 12/14/2018
Proceedings: Agency Final Order filed.
PDF:
Date: 12/14/2018
Proceedings: Notice of Appearance (Emily Canney) filed.
PDF:
Date: 11/26/2018
Proceedings: Petitioner's Exceptions to the Recommended Order of Dismissal filed.
PDF:
Date: 11/15/2018
Proceedings: Recommended Order
PDF:
Date: 11/15/2018
Proceedings: Recommended Order (hearing held September 28, 2018). CASE CLOSED.
PDF:
Date: 11/15/2018
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/25/2018
Proceedings: South Florida Water Management District's Proposed Recommended Order filed.
PDF:
Date: 10/25/2018
Proceedings: Coastal's Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 10/25/2018
Proceedings: (Proposed) Recommended Order filed.
PDF:
Date: 10/15/2018
Proceedings: Notice of Filing Transcript.
Date: 10/15/2018
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 10/01/2018
Proceedings: Joint Exhibit's 1, 2, and 3 filed (exhibits not available for viewing).
Date: 09/28/2018
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/27/2018
Proceedings: Petitioner's Response to Coastal's Second Request for Production to HAI filed.
PDF:
Date: 09/27/2018
Proceedings: Amended Pre-hearing Stipulation filed.
PDF:
Date: 09/26/2018
Proceedings: Pre-hearing Stipulation filed.
Date: 09/25/2018
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 09/25/2018
Proceedings: Order Granting Motion in Limine.
PDF:
Date: 09/25/2018
Proceedings: Confidentiality Order.
PDF:
Date: 09/24/2018
Proceedings: Cross-Notice of Taking Depositions filed.
PDF:
Date: 09/24/2018
Proceedings: Notice of Continuing Deposition by Telephonic Means (Greg Clubbs) filed.
PDF:
Date: 09/24/2018
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for September 25, 2018; 1:30 p.m.).
PDF:
Date: 09/24/2018
Proceedings: Notice of Continuing Deposition by Telephonic Means (of Mike ODonnell) filed.
PDF:
Date: 09/24/2018
Proceedings: Petitioner's Response in Opposition to Respondent Coastal Helicopters, Inc.'s Motion for Protective Order and Motion in Limine filed.
PDF:
Date: 09/24/2018
Proceedings: Notice of Joining in Coastal Helicopter Inc.'s Motion in Limine and Request for Oral Argument prior to the Formal Hearing filed.
PDF:
Date: 09/24/2018
Proceedings: Notice of Filing Agreed Confidentiality Order filed.
PDF:
Date: 09/21/2018
Proceedings: Response to First Request for Production filed.
PDF:
Date: 09/21/2018
Proceedings: Response to First Request for Production filed.
PDF:
Date: 09/21/2018
Proceedings: Coastal's Motion for Protective Order and Motion in Limine regarding Irrelevant Insurance Documents filed.
PDF:
Date: 09/20/2018
Proceedings: Cross-Notice of Taking Depositions Duces Tecum filed.
PDF:
Date: 09/20/2018
Proceedings: Notice of Taking Deposition (Sharman Rose) filed.
PDF:
Date: 09/20/2018
Proceedings: Coastal's First Request for Production to South Florida Water Management District filed.
PDF:
Date: 09/20/2018
Proceedings: Petitioner's First Request for Production to Respondent South Florida Water Management District filed.
PDF:
Date: 09/19/2018
Proceedings: Second Amended Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 09/19/2018
Proceedings: Coastal's Second Request for Production to HAI filed.
PDF:
Date: 09/19/2018
Proceedings: Amended Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 09/18/2018
Proceedings: Petitioner's Objections and Responses to Coastal's First Interrogatories to HAI filed.
PDF:
Date: 09/18/2018
Proceedings: Petitioner's Objections and Responses to Coastal's First Request for Production to HAI filed.
PDF:
Date: 09/18/2018
Proceedings: Petitioner's Responses to Coastal's First Request for Admissions to HAI filed.
PDF:
Date: 09/18/2018
Proceedings: Re-Notice of Taking Deposition (G. Clubbs) filed.
PDF:
Date: 09/14/2018
Proceedings: Coastal's Response to HAI's First Request for Production filed.
PDF:
Date: 09/14/2018
Proceedings: Notice of Cancellation of Deposition of Donald White filed.
PDF:
Date: 09/13/2018
Proceedings: Notice of Appearance filed.
PDF:
Date: 09/13/2018
Proceedings: Notice of Appearance of Certified Legal Intern filed.(FILED IN ERROR).
PDF:
Date: 09/13/2018
Proceedings: Coastal's First Request for Production to HAI filed.
PDF:
Date: 09/13/2018
Proceedings: Notice of Service of Coastal's First Interrogatories to HAI filed.
PDF:
Date: 09/13/2018
Proceedings: Coastal's First Request for Admissions to HAI filed.
PDF:
Date: 09/13/2018
Proceedings: Respondent South Florida Water Management District's Response to Petitioner's First Request for Production of Documents filed.
PDF:
Date: 09/11/2018
Proceedings: Notice of Taking Deposition by Telephonic Means (of Mike ODonnell) filed.
PDF:
Date: 09/11/2018
Proceedings: Notice of Taking Depositions Duces Tecum filed.
PDF:
Date: 09/11/2018
Proceedings: Cross-Notice of Taking Depositions Duces Tecum filed.
PDF:
Date: 09/07/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/07/2018
Proceedings: Notice of Hearing (hearing set for September 28, 2018; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 09/06/2018
Proceedings: Notice of Appearance (Lawrence Horsburgh) filed.
PDF:
Date: 09/06/2018
Proceedings: Notice of Taking Depositions filed.
PDF:
Date: 09/05/2018
Proceedings: Notice of Appearance (Frank Mendez) filed.
PDF:
Date: 09/05/2018
Proceedings: Notice of Appearance (Stephen Burch) filed.
PDF:
Date: 09/05/2018
Proceedings: Notice of Telephonic Status Conference (status conference set for September 6, 2018; 9:00 a.m.).
PDF:
Date: 09/04/2018
Proceedings: Notice of Transfer.
PDF:
Date: 08/31/2018
Proceedings: South Florida Water Management District's Notice of Availability and Motion to Enforce Statutory Timeframe filed.
Date: 08/30/2018
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 08/28/2018
Proceedings: Notice of Rights filed.
PDF:
Date: 08/28/2018
Proceedings: Formal Written Protest filed.
PDF:
Date: 08/28/2018
Proceedings: Notice of Intent to Award filed.
PDF:
Date: 08/28/2018
Proceedings: Order Referring Helicopter Applicators, Inc.'s Amended Petition to the Division of Administrative Hearings filed.
PDF:
Date: 08/28/2018
Proceedings: Agency referral filed.

Case Information

Judge:
SUZANNE VAN WYK
Date Filed:
08/28/2018
Date Assignment:
09/04/2018
Last Docket Entry:
12/14/2018
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (10):

Related Florida Rule(s) (3):