99-001609 Southwest Florida Water Management District vs. Tony Holt Status: Closed Recommended Order on Wednesday, August 18, 1999.

Summary: Respondent failed to place water-well casing in rock layer or other consolidated formation in violation of Rule 62-532.500(2)(d), Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 99-1609

)

TONY HOLT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This cause came on for formal hearing on July 9, 1999, in

Brooksville, Florida, before the Division of Administrative

Hearings, by its designated Administrative Law Judge, Suzanne F.

Hood.

APPEARANCES

For Petitioner: Margaret M. Lytle, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

For Respondent: Tony Holt, pro se

6145 Durant Road

Durant, Florida 33530

STATEMENT OF THE ISSUES

The issues are whether Respondent violated

Rule 62-532.500(2)(d)1., Florida Administrative Code, by failing

to seat a well casing in a rock layer or other such consolidated

formation, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 9, 1998, Petitioner Southwest Water Management

District (Petitioner) issued an Administrative Complaint and

Order alleging that Respondent Tony Holt (Respondent) violated

Rule 62-532.500(2)(d)1., Florida Administrative Code. That rule

requires that a well casing be seated or sealed with neat cement

grout into the rock layer or consolidated formation. Respondent

requested a formal hearing by letter dated February 17, 1999.

On or about April 1, 1999, Petitioner amended its

Administrative Complaint and Order to allege that Respondent

violated Rule 62-532.500(2)(d)1., Florida Administrative Code, by

failing to properly seat a well casing into the rock layer or

consolidated formation. Respondent did not object to the

amendment.

Petitioner referred the case to the Division of

Administrative Hearings on April 5, 1999. The undersigned

subsequently issued a Notice of Hearing, scheduling this matter

for hearing on July 19, 1999.

At the hearing, Petitioner presented the testimony of four

witnesses, two of whom were qualified as experts. Petitioner's

Exhibits P1-P6 were officially recognized. Petitioner's Exhibits

P7-P12, P14, and P17 were accepted into evidence.

Respondent testified on his own behalf and presented the

testimony of two witnesses. Respondent did not offer any

exhibits for admission into the record.

The court reporter filed the Transcript of the proceedings

on July 28, 1999. Petitioner filed its Proposed Recommended

Order on August 9, 1999. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. Respondent is charged with the responsibility to

conserve, protect, manage, and control water resources within its

boundaries. Respondent's duties include the regulation of water

wells and water well contractors.

2. Respondent is a water well contractor. As such, he

holds Water Well Contractor License No. 2215.

3. On September 25, 1997, Petitioner issued Respondent Well

Construction Permit No. 597679.01. The permit gave Petitioner

permission to construct a water well, four-inches in diameter, on

property owned by Rex Hobbs in Pasco County.

4. Respondent subsequently constructed the water well on

the property owned by Mr. Hobbs, using the cable tool

construction method. Respondent completed construction of the

well on or about October 20, 1997.

5. After the well was constructed, Mr. Hobbs complained to

Respondent on several occasions that the well was producing sand,

rock, and other debris. Respondent made no attempt to repair the

well.

6. In May or June of 1998, Mr. Hobbs filed a complaint with

Petitioner regarding the construction of the well on his

property. Petitioner's subsequent field investigation did not

reveal a significant amount of sediment in the well water.

7. Mr. Hobbs filed a second complaint with Petitioner in

the summer of 1998, insisting that the water from his well

contained an excess amount of sediment. Petitioner's second

field investigation revealed an abnormal amount of sediment in

the well water.

8. On July 9, 1998, Petitioner issued a Notice of

Violation, advising Respondent that he had violated

Rule 40D-3.037(1), Florida Administrative Code, by failing to

seat the casing of the Hobbs well into a consolidated formation.

9. Water from the Hobbs well contains sediments including

sand, rock, and other debris. These sediments interfere with the

operation of plumbing, appliances, and irrigation devices, which

utilize water supplied by the well. The quality of the well

water produced by the Hobbs water well is unacceptable.

10. The total depth of the Hobbs well is 131 feet below

land surface. The well is cased to 42 feet below land surface.

The water pump is set at 84 or 86 feet below land surface. The

static water level was 58.2 feet below the land surface.

11. The geologic formation at the end of the casing of the

well contains gray clay, yellow clay, limerock, and sand. The

end of the casing is not seated in a layer of rock or other

consolidated formation. There is no persuasive testimony to the

contrary.

12. The area in which the well is located is geologically

unstable. Wells in that area generally require 84 feet of

casing. Respondent admitted at the hearing that the well is

producing sand and needs more "pipe."

13. Failure to seat a well casing into a consolidated

formation is a major violation under the Florida Department of

Environmental Protection's Water Well Contractor Disciplinary

Guidelines and Procedures Manual.

14. Respondent has entered into three previous Consent

Orders with Petitioner to resolve permitting and construction

violations.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

16. Petitioner has the burden of proving by a preponderance

of the evidence that Respondent violated Rule 62-532.500(2)(d)1.,

Florida Administrative Code, by failing to seat a water well

casing in a rock layer or other such consolidated formation.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

17. Section 373.302, Florida Statutes, states as follows in

pertinent part:

The Legislature recognizes that the practice

of constructing, repairing, and abandoning

water wells, if conducted by incompetent

contractors, is potentially threatening to

the health of the public and to the

environment.

18. Section 373.303, Florida Statutes, defines a water well

contractor as a "person who is responsible for the construction,

repair, or abandonment of a water well and who is licensed under

this part to engage in the business of construction, repair, or

abandonment of water wells."

19. Section 373.308, Florida Statues, charges the

Department of Environmental Protection as follows in pertinent

part:

(1) The department shall authorize the

governing board of a water management

district to implement a program for the

issuance of permits for the location,

construction, repair, and abandonment of

water wells.

(2) The department shall authorize the

governing board of a water management

district to exercise any power authorized to

be exercised by the department under ss.

373.309, 373.313, 373.316, 373.319, 373.323,

373.329, and 373.333 and shall encourage the

district to fully exercise such powers as

soon as practicable.

20. Section 373.309, Florida Statutes, states as follows in

pertinent part:

(1) The department shall adopt, and may from

time to time amend, rules governing the

location, construction, repair, and

abandonment of water wells and shall be

responsible for the administration of this

part. With respect thereto, the department

shall:

(a) Enforce the provision of this part and

any rules adopted pursuant thereto.

(b) Delegate, by interagency agreement

adopted pursuant to s. 373.046, to water

management districts . . . any of its

authority under this part in the

administration of the rules adopted

hereunder . . . .

21. Section 373.323(1), Florida Statutes, states that

"[e]very person who wishes to engage in business as a water well

contractor shall obtain from the water management district a

license to conduct such business."

22. Section 373.333, Florida Statutes, gives the Department

of Environmental Protection and water management districts the

following responsibilities regarding disciplinary guidelines, in

pertinent part:

(1) The department shall adopt by rule

disciplinary guidelines which may be imposed

by water management districts. . . . 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 violation from those

which endanger public health, safety, and

welfare or contaminate the water resources.

* * *

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. . . .

(2) Whenever the water management district

has reasonable grounds for believing that

there has been a violation of this part or

any rule or regulation adopted pursuant

hereto, it shall give written notice to the

person alleged to be in violation. . . .

* * *

(4) The following acts constitute grounds

for which disciplinary actions specified in

subsection (5) may be taken by a water

management district:

* * *

(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.

* * *

(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:

* * *

(b) Revocation or suspension of a license;

(c) Imposition of an administrative fine not

to exceed $1,000 for each count or separate

offense.

(d) Placement of the water well contractor

on probation for a period of time subject to

such conditions as the water management

district may specify.

(e) Restriction of the licensee's authorized

scope of practice.

23. Petitioner has adopted Rule 40D-3.037, Florida

Administrative Code, which states as follows in pertinent part:

(1) The regulations promulgated by the

Department [of Environmental Protection]

governing the construction of water wells as

set forth in Chapter 62-532, [Florida

Administrative Code,] . . . are hereby

incorporated by reference and made a part of

this rule and shall apply to all water wells

constructed, repaired, modified or abandoned

in the District.

(2) The department's Water Well Contractor

Disciplinary Guidelines and Procedures Manual

and the department's Florida Unified

Citations Dictionary for Water Well

Construction are hereby incorporated by

reference and made a part of this rule.

24. Rule 62-532.500(2)(d)1., Florida Administrative Code,

sets forth the following applicable water well construction

standard:

(d)1. Casing for wells which obtain their

water from a rock layer or other such

consolidated formation shall, as a minimum,

be seated or sealed with neat cement grout

into that rock layer or other consolidated

formation.

25. The greater weight of the evidence indicates that

Respondent did not construct the Hobbs water well as required by

Rule 62-532.500(2)(d)1., Florida Administrative Code. The water

quality of the Hobbs well is unacceptable due to Respondent's

failure to seat the well casing into the rock layer or other

consolidated formation.

26. Pursuant to the Water Well Contractor Disciplinary

Guidelines and Procedures Manual, October 1992, and the Florida

Unified Citations Dictionary for Water Well construction, Revised

September 1992, the appropriate penalty for violating

Rule 62-532.500(2)(d)1., Florida Administrative Code, is an

administrative fine in the amount of $500 and the assessment of

five points against Respondent's well water contractor's license.

27. There is no evidence that Respondent's penalty in this

case should be accelerated based on the issuance of the prior

three Consent Orders.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED:

That Petitioner enter a final order requiring Respondent to

pay an administrative fine in the amount of $500 and assessing

five points against his water well contractor's license.

DONE AND ENTERED this 18th day of August, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

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 18th day of August, 1999.

COPIES FURNISHED:

Margaret M. Lytle, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Tony Holt

6145 Durant Road

Durant, Florida 33530

E. D. Sonny Vegara, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

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.