92-003654 Suwannee River Water Management District vs. William Bedard Status: Closed Recommended Order on Tuesday, November 3, 1992.

Summary: Contractor fined for drilling well without permit. District could not collect atty fees and costs because statutes limits recovery to proceeding in courts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUWANNEE RIVER WATER MANAGEMENT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3654

)

WILLIAM BEDARD, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice

by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative

Hearings, on September 24, 1992, in Lake City, Florida.

APPEARANCES

For Petitioner: Janice F. Bessinger, Esquire

BRANNON, BROWN, HALEY, ROBINSON &

COLE, P.A.

10 North Columbia Street

Lake City, Florida 32056-1029

For Respondent: William Bedard, pro se

Post Office Box 545

Branford, Florida 32208

ISSUE

Whether the Respondent committed the acts alleged in the Administrative

Complaint.

PRELIMINARY STATEMENT

William Bedard (Bedard) is a water well contractor with license #2830.

Sometime prior to July 11, 1991, Bedard constructed a four inch well for Wendell

Forsythe in Columbia County, Florida. However, Bedard did not apply for a

permit for said well until July 11, 1991. The Suwannee River Water Management

District (District) requested additional information regarding the location of

the well. Said information was not provided to the District until May 22, 1992.

On June 16, 1992, a permit was issued for said well approximately eleven months

after the well had been drilled. On or about May 28, 1992, a Notice of

Violation was sent to Bedard for failure to obtain a well permit prior to

construction of a private supply well. Said Notice of Violation ordered Bedard

to pay the District its reasonable administrative costs and attorney's fees in

the amount of $202.56, submit to the District a penalty of $275.00 and have 2.5

points assessed against Bedard's license. On or about June 4, 1992, the

District received a request for a hearing from Bedard regarding this matter.

After the hearing, the Respondent submitted a letter which was read and

considered. The Petitioner submitted proposed findings which were substantially

adopted.

FINDINGS OF FACT

1. District is a governmental agency of the State of Florida created and

empowered by Chapter 373, Florida Statutes, to regulate permitting and

construction of water wells, and to regulate well contractors.

2. William Bedard, Post Office Box 545, Branford, Florida 32208, is a

water well contractor with license #2830.

3. Bedard constructed a water well for Wendell Forsythe in Three Rivers

Estate, Township 6 South, Range 15 East, Section 25 in Columbia County, Florida.

This is within the District.

4. Said well was a four inch water well.

5. Said well was constructed sometime prior to July 11, 1991.

6. Bedard applied for a permit from the District on July 11, 1991.

7. District requested additional information from Bedard by telephone on

July 11, 1991, and followed up with a letter which was mailed March 23, 1992.

8. The additional information in the form of a survey was provided to the

District on May 22, 1992.

9. The District issued a permit for said water well on June 16, 1992,

approximately 11 months after the well was drilled.

10. Bedard had one previous violation for drilling a water well without a

permit. He applied for and received an after-the-fact permit in that instance.

11. In mitigation, Bedard offered the following facts:

(a) Wendell Forsythe (Forsythe) lives in

South Florida and only comes to his property

in Columbia County on weekends.

(b) Forsythe met with Bedard on the site to

discuss the proposed well.

(c) Forsythe said he wanted to go forward,

and Bedard advised Forsythe that he would

begin on Monday after he obtained a permit

from the District Office which was closed.

(d) Forsythe wanted to see the work done, and

told Bedard that he would get another

contractor if Bedard would not start the well

right away.

(e) Bedard constructed the well and applied

for a permit on the first working day after

construction of said well.

(f) Before Bedard constructed the well,

Forsythe told him that the site was not within

the flood plain and a survey would not be

required.

(g) The site was within the flood plain, and

a topographic survey was required. The

District asked Bedard for a survey.

(h) Bedard passed the request for the survey

on to Forsythe, however, Forsythe did not

provide this information until May of 1992

when he became aware that he might be liable.

12. The District's attorney's fees and administrative costs were $970.00.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause pursuant to Section 120.57,(1), Florida

Statutes.

14. Suwannee River Water Management District, Route 3, Box 64, Live Oak,

Florida 32060, is an agency of the State with authority to regulate water well

construction in the district and well drilling contractors operating within the

district pursuant to Chapters 373, Florida Statutes. Section 373.129, supra,

provides as follows:

373.129 Maintenance of actions. - The

department, the governing board of any water

management district, or any local board is

authorized to commence and maintain proper

and necessary actions and proceedings in any

court of competent jurisdiction for any of

the following purposes:

(1) To enforce rules, regulations, and orders

adopted or issued pursuant to this law.

(2) To enjoin or abate violations of the

provisions of this law or rules, regulations,

and orders adopted pursuant hereto.

(3) To protect and preserve the water

resources of the state.

(4) To defend all actions and proceedings

involving its powers and duties pertaining to

the water resources of the state.

(5)(a) To recover a civil penalty for each

offense in an amount not to exceed $10,000 per

offense. Each date during which such

violation occurs constitutes a separate offense.

(b) A civil penalty recovered pursuant to

paragraph (a) shall be deposited in the Water

Management Lands Trust Fund established under

s. 373.59 and utilized exclusively by the

water management district that deposits the

money into the fund. Any such civil penalty

recovered after the expiration of such fund

shall be deposited in the Pollution Recovery

Fund created by s. 403.165 and utilized

exclusively within the water management

district that deposits the money into the

fund.

(6) To recover investigative costs, court

costs, and reasonable attorney's fees.

(Emphasis supplied.)

15. Section 373.313, supra, provides:

373.313 Prior permission and notification.

(1) Taking into consideration other

applicable state laws, in any geographical

area where the department determines such

permission to be reasonably necessary to

protect the ground water resources, prior

permission shall be obtained from the

department for each of the following:

(a) The construction of any water well;

(b) The repair of any water well; or

(c) The abandonment of any water well.

However, in any area where undue hardship

might arise by reason of such requirement,

prior permission will not be required.

(2) The department shall be notified of any

of the following whenever prior permission

is not required:

(a) The construction of any water well;

(b) The repair of any water well; or

(c) The abandonment of any water well.

(Emphasis supplied.)

16. Rule 40B-3.041, Florida Administrative Code, provides in part:

Unless expressly exempted by law or district

rule, a permit must be obtained prior to the

construction . . . of any well within the

District.

17. The statutes and the rules make it a violation for anyone to construct

a well without prior permitting. The District holds the well contractor

responsible for obtaining the permit.

18. Section 373.333, supra, provides in part as follows:

373.333 Disciplinary guidelines; adoption and

enforcement; license suspension or revocation.

(1) The department shall adopt by rule

disciplinary guidelines applicable to each

specific ground for disciplinary action which

may be imposed by the water management

districts, providing each water management

district and representatives of the water well

contracting industry with meaningful

opportunity to participate in the development

of the disciplinary guideline rules as they

are drafted. The disciplinary guidelines shall

be adopted by each water management district.

The guideline rules shall be consistently

applied by the water management districts and

shall:

(a) Specify a meaningful range of designated

penalties based upon the severity and

repetition of specific offenses.

(b) Distinguish minor violations from those

which endanger public health, safety, and

welfare or contaminate the water resources.

(c) Inform the public of likely penalties

which may be imposed for proscribed conduct.

A specific finding of mitigating or

aggravating circumstances shall allow a water

management district to impose a penalty other

than that provided in the guidelines.

Disciplinary action may be taken by any water

management district, regardless of where the

contractor's license was issued.

* * *

(4) The following acts constitute grounds for

which disciplinary actions . . .

* * *

(d) Violating or refusing to comply with any

provision of this part or a rule adopted by

the department or water management district,

or any order of the water management district

previously entered in a disciplinary hearing.

(e) Constructing, repairing, or abandoning a

water well without first obtaining all

applicable permits.

* * *

(5) When the water management district finds

a person guilty of any of the grounds set

forth in subsection (4), it may enter an order

imposing one or more of the following

disciplinary actions:

* * *

(c) Imposition of an administrative fine not

to exceed $1,000 for each count or separate

offense. (Emphasis supplied.)

19. Section 373.333, Florida Statutes, quoted above, provides that the

Department of Environmental Regulation shall adopt by rule disciplinary

guidelines applicable to each specific ground for disciplinary action which may

be imposed by the water management districts. Further, the statute provides

that these guidelines shall be adopted by each water management district. Rule

40B-3.037, Florida Administrative Code, adopted the Water Well contractor

Disciplinary Guidelines, and Paragraph (6) of Rule 17-531.450, Florida

Administrative Code, provides that a copy of the guidelines may be obtained from

the Department of Environmental Regulation.

20. Bedard's construction of a water well prior to applying for a permit

is a violation of Section 373.333, supra. The Water Management District has

suggested that the Respondent be fined $275 for violation of the statute, be

assessed its costs of investigation, attorney's fees, and court costs, and be

assessed 2.5 points against his license. Presumably, the guidelines provide for

civil fines and the assessment of points; however, as noted above, the statutes

provide only that the District may commence proceedings in any court of

competent jurisdiction to recover investigative costs, court costs and

attorney's fees. The Division of Administrative Hearings, while having been

granted statutory authority to award attorney's fees and costs in some

instances, is not a court. The District's authority is limited to filing in

courts, and does not have authority to request attorney's fees and costs in this

forum.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that:

(1) A penalty be assessed against the Respondent in the amount of $275,

and

(2) Two and one half points be assessed against the Respondent's license,

and

(3) No attorneys fees or costs be assessed through this administrative

hearing process.

DONE and RECOMMENDED this 3rd day of November, 1992, at Tallahassee,

Florida.

___________________________________

STEPHEN F. DEAN, Hearing Officer

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 1992.

COPIES FURNISHED:

Janice F. Bessinger, Esquire

10 North Columbia Street

Lake City, FL 32056-1029

William Bedard

Post Office Box 545

Branford, FL 32208

Jerry Scarborough, Executive Director

Suwannee River Water Management District

Route 3 Box 64

Live Oak, FL 32060

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.