00-001201 Southwest Florida Regional Planning Council vs. Fletcher Holt Status: Closed Recommended Order on Tuesday, July 18, 2000.

Summary: Evidence of record is sufficient to establish Respondent is guilty of several rule violations dealing with construction of and abandonment of water wells, but not guilty of cutting off casing below ground on one well.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 00-1201

)

FLETCHER HOLT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on May

31, 2000, before Arnold H. Pollock, an Administrative Law Judge

with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Margaret M. Lytle, Esquire

South west Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

For Respondent: Onofre Cintron, Esquire

305 North Parson Avenue

Brandon, Florida 33510

STATEMENT OF THE ISSUE

The issue for cons ideration in this matter is whether

Respondent’s license as a water well contractor should be

disciplined because of the matters alleged in the Administrative

Complaint and Order entered herein by the District.

PRELIMINARY MATTERS

By Administrative Compla int and Order dated December 21,

1999, the Southwest Florida Water Management District’s

(District) Executive Director seeks to discipline Respondent’s

license as a water well contractor within the District because

of misconduct alleged therein. Specifically, the District

alleges that sometime between June 1 and November 15, 1998, the

Respondent cut-off the casing of a water well below the land

surface; failed to seal the casing of the well with an approved

substance; and improperly abandoned the well by failing to fill

it from bottom to top with an approved grout. The District also

alleges that Respondent also drilled two other wells on the same

property, the first of which he covered with a cracked PVC cap

and also failed to properly abandon. It is further alleged that

the second of these two wells, which was the third drilled by

Respondent on the property, was drilled without amending the

permit he had received for the first well; without properly

abandoning the well for which the permit had been taken; and

without obtaining from the District a valid well construction

permit (WCP) authorizing the construction of the third well. It

is further alleged that the casing of the third well did not

extend below the static water level of the producing aquifer, as

required. If proven, Respondent’s misconduct violates the

provisions of Chapter 373, Florida Statutes, and Rules 40D-

3.521, 40D-3.531, 40D-3.517(3), and 62-532.500, Florida

Administrative Code.

By Petition and Request for Hearing dated March 14, 2000,

Respondent sought a formal administrative hearing on the

allegations, and this hearing ensued.

At the hearing, Petitioner presented the testimony of

Anthony E. Gilboy, manager of well construction for the

District; Karen Anne Grant, owner of the property on which the

subject wells were drilled by Respondent; Sharon Lee Vance, the

District’s acting field services supervisor; and Mark C. Pike, a

water resources technician III for the District. Petitioner

also introduced Petitioner’s Exhibits 7 through 13. Respondent

testified in his own behalf and presented the testimony of his

brother, Anthony C. Holt, also a water well contractor.

Petitioner requested, and the undersigned officially

recognized without objection, Chapter 373, Florida Statutes, and

Rules 40D3, 62-531 and 62-532, Florida Administrative Code; and

the District’s Guidelines and Procedure Manual, as well as the

District’s Citation Dictionary.

A Transcript of the proceedings was filed June 14, 2000.

Subsequent to the receipt thereof, counsel for both parties

submitted matters in writing which were carefully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Southwest Florida Water Management District (SWFWMD) was the

state agency responsible for the conservation, protection,

management, and control of water resources within its

boundaries, and consistent therewith, the licensing of water

wells therein; and for the licensing and regulation of water

wells and water well contractors within the district. The three

wells in issue herein were within the jurisdiction of the

Petitioner, and Respondent was a water well contractor licensed

by the District.

2. On June 4, 1998, Respondent signed a contract with

Karen Anne Grant, to drill a four-inch domestic water well on

her property located at 33442 Larkin Road, Dade City, Florida.

The property, on which Ms. Grant was building a residence, was a

part of a pre-existing citrus grove. After application by the

Respondent, SWFWMD issued WCP No. 606175.01 to him on June 1,

1998, and Respondent began construction of the well on June 15,

1998. His application reflected the well was to be drilled

using the cable-tool method.

3. Construction was completed on the well on or about July

7, 1998, but because the well was vandalized during construction

by the dropping of an unknown substance (probably a piece of

casing) down the well, the well was unsatisfactory and was not

used. Respondent attempted to repair the well but was unable to

do so. Respondent claimed the well was unusable and he would

have to drill another one. Although he did not obtain a permit

to close the well, he subsequently did so. He was paid

$5,375.00 to dig this Well (No. 1).

4. Because of the failure of Well No. 1 , Respondent

applied to the District for and received WCP No. 613349.01 on

December 9, 1998, to construct a second four-inch water well on

Ms. Grant's property. This was Well No. 2. He began

construction that day and completed it on January 27, 1999.

From the time of its initial use, Well No. 2 produced water

which contained unacceptable amounts of sediment, debris, and

sand. In addition to the unsatisfactory quality of the water it

produced, Well No. 2 also failed to produce a sufficient

quantity of water for domestic potable water use or grove

irrigation. Respondent admitted to Ms. Grant that Well No. 2

was not satisfactory for grove irrigation, and in an effort to

fix the water quality problem, installed a sand filter and

sedimentation tank.

5. Wel l No. 2 was not properly closed. It was covered

with a PVC cap instead of a tamper-resistant watertight cap or

valve as required, and Respondent did not properly seal the

upper terminus of the well.

6. Without obtaining a third WCP, on February 25, 1999 ,

Respondent started construction of a third well on the Grant

property. Respondent contends WCP No. 613349.01, pulled for

Well No. 2, was not for that well but for Well No. 3. He argues

that the second well was so close to the first well that he did

not feel another permit was required.

7. Though Well No. 3 was completed and produces water, the

water quality is poor. It contains sand, sediment, debris, and

rock, which results in clogging of plumbing fixtures at the

Grant home. In addition, the volume of water produced is

insufficient for comfortable home use. Well No. 3 is open down

to 178 feet below land surface, beyond which point it is

obstructed by sand. Use of a diagnostic tool available to the

District reveals that the sand seems to be coming from around

the well casing.

8. Ms. Grant initially contracted with Respondent to dig

her well in June 1998. Although Petitioner disputes it, the

location of the well near the new house she was building was,

she claims, by mutual agreement. Respondent did not express any

dissatisfaction with the location of this or either of the other

wells, He said he was familiar with the area and had worked all

around there.

9. Respondent started work on Well No. 1 on June 15, 1998

and it was completed on July 2, 1998. The house was not yet

completed, and electric service had not been installed, though

it was being arranged for.

10. Before the well could be put in operation, however,

Respondent claimed it was vandalized and his equipment, which he

had left at the site, stolen. At this point, Respondent told

Ms. Grant that he had run into an obstruction which he believed

was pipe which had been dropped into the well at more than 100

feet. He said he had tried to get it out, but could not, and

had to drill another well. The casing of Well No. 1 was not cut

off at that time. Ms. Grant later discovered it had been cut

off and plugged, but she does not know who did that.

11. Ms. Grant used Well No. 2, which was located about 20

to 30 feet west of Well No. 1, for just about two months but was

never satisfied with the amount or quality of the water it

produced. Not only was the water quality low, but there was

also insufficient volume for grove irrigation, one of the

intended uses of which she had advised Respondent. When Grant

complained to Respondent about the water quality, he suggested

she run hoses constantly to clear the sand out.

12. In February, 1999, just after Ms. Grant contacted the

District to complain, Respondent said he would come by to cap

Well Nos. 1 and 2, and start Well No. 3. On February 25, 1999,

Respondent started Well No. 3 at a site about 200 feet north of

Well Nos. 1 and 2, agreed upon by the parties after some

discussion, and on March 5, 1999, he completed it. Respondent

billed Ms. Grant $3,271 for this well, in addition to the $5,375

paid for Well No. 1 and the $4,585 paid for Well No. 2. Whereas

the builder paid for the first two wells, Ms. Grant paid for

Well No. 3, but she had the same problems with Well No. 3 that

she had had with the prior two wells. An irrigation company

called in to see what could be done to get water to the citrus

grove indicated there was too much sediment in the water and not

enough flow.

13. About a year after Well No. 3 was completed, the

Grants noticed the water pressure was dropping, and when they

went to the well site, they noticed the pump was constantly

running. As a result, they called another well driller who

pulled the pump and replaced the impellers.

14. After that, Ms. Grant contacted Respondent about the

fact that the wells he had drilled had never worked properly.

All he would recommend was to keep the hoses running. He

indicated he would try to develop the well to rid it of debris

but when he tried, he was unsuccessful. As a result of the

situation with the three wells, the Grants had no water to their

home; the pumps they installed were destroyed; they were unable

to irrigate their 8-acre citrus grove; they suffered a resultant

loss of income; and, they were forced to drill a fourth well.

15 . When Well No. 1 was closed, the casing was cut off at

or below ground level. It did not extend one foot above the

land surface, nor was the casing capped or sealed with a tamper-

resistant watertight cap or valve. Examination of the well site

by Sharon Lee Vance, then a technician IV for the District, on

May 25, 1999, based on a complaint filed by Ms. Grant, revealed

that the water quality was poor - cloudy with excessive sand and

rock particles. Ms. Vance tried to contact Respondent, whose

name appeared on the permit as contact, by phone but always got

his voice mail. Though she left messages requesting him to call

back, he never did.

16. Ms. Vance went back to the Grant site in July 1999 in

the company of other District personnel. At this visit, Ms.

Vance learned there were two wells. She located both and found

that Well No. 1 was buried. When she first saw that well, she

noted that it had been cut off below the surface, a fence post

had been driven into the top, and the well had been buried. In

Ms. Vance's discussions with Ms. Grant about this well, Ms.

Grant categorically denied she was the one who cut off the top

of Well No. 1 or buried it. She does not have access to the

cutting equipment used to cut off the top of the well. Such

equipment, however, is commonly used by well contractors.

17. It was obvious to Ms. Vance that Well No. 1 had

several problems. It was clearly not suitable for its intended

use because it was cut off below ground level and was

obstructed. It had not been properly abandoned. Though she dug

down approximately one-and-a-half feet all the way around the

casing, she could find no evidence of bentonite or any other

approved closing medium.

18. Even though Respondent now claims the second permit he

pulled was not for Well No. 2 but for Well No. 3 instead, the

permit itself appears to authorize the construction of Well No.

2. Ms. Vance found several problems with this well, also. It

was not properly sealed with bentonite or any other properly

approved closure medium; a PVC cap had been applied to the top

instead of a waterproof or tamperproof cap, and the PVC cap was

cracked; the well was not suitable for its intended purpose

because it was obstructed and produced both insufficient and

poor quality water; and it was not properly abandoned. Ms.

Vance observed a metal plate placed around the well top. She

does not know what purpose it was to serve, but based on her

experience and her examination of the site, she believes it was

placed there to keep the casing from falling into the well.

19. Notwithstanding, Ms. Vance's opinion that the second

permit was for Well No. 2, Respondent contends he believed the

permit for Well No. 1 was adequate to permit drilling of Well

No. 2 without a new permit. Though his belief is incorrect, he

admitted to obtaining a permit for Well No. 3. Therefore, it is

found that Well No. 2 was not properly permitted. Well No. 3

was permitted.

20. The water in Well No. 3 was not of good quality. She

examined the sand filter which had been installed by the

Respondent and found it to be full of sand. So was the settling

tank. She also noted debris and unusual sediment around the

well head. Based on water samples taken at the well, and the

observations made, it was clear to Ms. Vance that the well was

not properly seated and was pumping sand. Further, the well

casing did not extend down to the static water level, and the

well was not properly permitted.

21. Ms. Vance further noted that the water from Well No.

3, in addition to the excessive sand, also had large pieces of

rock and chunks of clay in it. This was unusual and indicated

to her that there was a problem with the well's construction.

The casing integrity as not good, which permitted an infusion of

contaminant into the well. This condition is not unusual during

the first day or so of a well's operation, but it usually clears

up after that. In this case, it did not.

22. Ms. Vance admits she does not know who cut Well No. 1

off below ground level. She knows the well was not properly

abandoned as required by rule, however, because it was not

properly grouted with neat cement grout or bentonite. She dug

down beside the well for a total of two and a half feet without

seeing any evidence of grout or bentonite. The fact that the

well had pipe dropped into it, and the existence of the cutting

off of the pipe below ground, made it inappropriate for the

intended purpose of providing water for the home.

23. Ms. Vance she does not know who cut off the pump; Ms.

Grant does not know who cut off the pipe; and Respondent denies

having done it. Though the work was clearly done by someone

with access to well drilling tools, Respondent was not the only

driller to work at the site. Therefore, it cannot be found that

Respondent cut the pipe off below ground. It is clear, however,

that Respondent failed to properly abandon and close Well No. 1,

when he found it unusable, and it was his responsibility to do

so.

24. Well No. 2 also was not properly sealed by Respondent,

according to Ms. Vance. A proper seal would include a good cap,

not a cracked PVC cap, which would suffice only as a temporary

cap. A proper cap would be one that is water tight and could

not be readily removed. Ms. Vance admits she does not know who

cracked the existing cap - only that it is cracked. This well,

too, did not produce water fit for its intended purpose because

of the existence of the tools which had been dropped into it. A

permit was not obtained to abandon it. Under all these

circumstances, Ms. Vance did not attempt to determine if it

would produce sufficient water.

25. Finally, Ms. Vance concluded that Well No. 3 was not

properly seated. According to rule, the casing has to seat to

or below the static water level. Based on the debris in the

water drawn from this well, she was satisfied this well was not

properly cased.

26. Mack Pike, a water resources technician III for the

District, does much of the well logging for the District. The

equipment he uses goes to the bottom of the well and shows the

diameter up to the point where the casing usually starts. Among

other items, he uses a camera, which is what he used on the

wells in issue here.

27. On July 22, 1999, he went to the Grant property to

look at Well Nos. 1 and 2. His first efforts to get into these

wells were unsuccessful, so he stopped his effort and returned

on May 10, 2000 with the camera. On May 17, 2000, he also ran

the camera down all three wells. In Well No. 3 he found the

pump at 176 feet. He found Well No. 1 cut off about one and a-

half feet below ground level, with a log jammed into the casing

top down to the level of the casing. The pipe had been cut with

a torch, but the casing had not been properly sealed with

bentonite. Use of the log to stuff the pipe was an improper

seal. He found the well open below the log down to 128 feet,

but obstructed below that. There was no water in the well.

Respondent adamantly insists he used bentonite in all three

wells, but since no trace of it was found in any of the wells by

Mr. Pike or Ms. Vance, it is found that he did not.

28. At Well No. 2, Mr. Pike found a welded slab around the

pipe to keep the casing from falling in. The cap was cracked

and was no good. The camera showed the well was closed off. He

hit sand at 158 feet. The presence of sand indicated to Mr.

Pike that the casing was not properly sealed. The well was

unusable.

29. Mr. Pike did not examine Well No. 3 until after he

opened the sediment tank and found sand which appeared to have

come from the surface. If the casing had been properly sealed,

there should have been no surface sand. This means that the

well was not properly seated.

30. Respondent has been a licensed well contractor since

1989 and has drilled approximately 300 wells since that time.

Though he claims he suggested alternate locations for the wells

to Ms. Grant, she insisted the well be placed near her

irrigation line. Respondent claims he was against this because

the site was a transition area which raised the possibility of

the pipe bending. Notwithstanding the advice he got from others

regarding the siting of the wells, he agreed to place the well

where Ms. Grant wanted it.

31. Respondent claims he dug the first well and installed

the pump, but the power was insufficient to run it. As a

result, he pulled out the pump and told Ms. Grant that when she

got the proper power to run it, he'd come back and reinstall the

pump. It was when he returned to the site in response to her

call that he found that the site of Well No. 1 had been

vandalized. Though he recommended the well be abandoned, Ms.

Grant did not want to do that, so he moved over 20 feet and

started to drill again. He categorically denies having cut off

the casing of Well No. 1 below ground level. It has been found

that the evidence shows Respondent that cut the pipe on Well No.

1, is insufficient.

32. Mr. Holt admits he did not seek a permit for this

second well because his understanding was that one could drill

like wells on the same premises without abandoning the pre-

existing wells. He drilled the second well which, he claims,

produced water for five to six months. However, it was

impossible to stop the sand from infiltrating the well, and the

well was not producing sufficient water to irrigate the grove.

Because the water produced by Well No. 2 was insufficient in

quantity to use the 5-horsepower pump called for in the

contract, Respondent replaced it with a one and a-half

horsepower pump.

33. According to Respondent, he and Ms. Grant discussed

where to site Well No. 3. Finally, Ms. Grant agreed to move it

up the hill on which Respondent wanted to site it, as this would

accommodate her irrigation system. Respondent was not

comfortable with this because it was on the slope too close to

the others, but he went along with it.

34. As W ell No. 3 was being constructed, Respondent

discussed with Ms. Grant the need to close Well Nos. 1 and 2.

She did not want to pay for the closings, so he decided to cap

the existing wells. As a result, Well No. 2 is still a viable

well, and though it will not irrigate the grove, it will,

Respondent claims, provide sufficient water for the house. He

admits placing the PVC cap on Well No. 2, but claims it was not

cracked when installed. He also admits to placing the plate

around the top of Well No. 2 because the drive shoe was bent.

It broke off, and he was afraid if he did not reinforce the area

as he had the casing would collapse when he tried to ream out

the drive shoe to recover it.

35. At the 126-foot mark of Well No. 3, Respondent hit a

boulder through which the drill would not go. At that time, the

hole below the casing was still good with no infusion.

Respondent installed a pump and drew water, but, the pump soon

began to pull sand. Respondent installed a filter, but it was

insufficient. He ultimately drilled through the rock and placed

the pump at 178 feet. That well is currently being used.

36. Respondent claims that all wells in that area pull

sand to some degree. He insists that Ms. Grant's wells just

pull too much. He claims he could have quit, but because of his

relationship with the builder, he felt obligated to drill a

working well for Ms. Grant.

37. Anthony Gilboy, who has been with the District for 20

years, is currently the District's manager of well construction.

He is familiar with the statutes and the rules of the District

relating to water well construction and abandonment. According

to Mr. Gilboy, they are loose enough to permit some latitude in

their application. There is a freedom to amend methodology

where circumstances so dictate.

38. A licensed water well contractor is required to obtain

a permit to construct a water well. Once a permit is drawn, if

the well needs to be changed, the permittee must apply for an

amendment and then plug the old well consistent with District

guidelines. Plugging is critical to prevent potential

contamination of water and to preserve it.

39. Rule 40D-3.042, Florida Administrative Code, permits

multiple (up to 8) wells under a single permit for similar types

of wells that have diameters of 4 inches or less, but not

domestic water wells.

40. There are different ways to drill a water well. One

is by cable-tool drill in which a bit is hammered into the rock.

As the casing is being driven down into the ground, it holds

back the sediment. Another method involves the use of a rotary

drill which employs water and bentonite to hold back sediment.

It is possible to tell whether bentonite was used in the

drilling process just by looking at the well. The bentonite

adheres to the well casing and looks different from the

surrounding soil. In fact, there is no soil appearing naturally

in Florida that looks like bentonite. In the instant case,

Respondent applied to use the cable-tool method. Bentonite

traces were not found at the sites.

41. When a well is drilled, the casing is to be poured in

segments as drilling progresses. When a well is to be

abandoned, one approved method of doing so involves the use of

bentonite, a type of clay which swells to about 10 to 15 times

its volume in dry form. Studies done by the District in

conjunction with the University of Florida show that over all,

bentonite is a better seal than natural soil, and it prevents

surface water from settling down the side of the casing.

42. Rule 40D-3.517(3), Florida Adm inistrative Code,

requires bentonite's use for this purpose, and a rule of the

Department of Environmental Protection, though not specifically

mentioning bentonite, requires that casings be sealed.

43. The casing of a water well is used to seal off any

unconsolidated materials. Rule 62-532, Florida Administrative

Code, requires the casing be extended into the static water

level at the time the well is drawn. If a well is not sealed,

debris and sand can slide into the well and damage the pump and

other equipment. If debris is seen, it usually means the casing

was not sealed properly.

44. After a well is completed, the rules of the District

and the Department, Rules 40D-3.521(2) and 62-532.500(3)(a)4,

Florida Administrative Code, respectively, require the upper

part of the well to be sealed off to prevent infusion of

contaminants. The seal must be tamper-proof and permanent. A

fence post is not acceptable, nor is a cracked PVC cap. In

addition, the upper terminus of a private well must extend at

least 1 foot above the land surface. The purpose of this

requirement is to allow the well to be found, and to prevent

infusion of contaminant. (Rule 40D-3.53(2), Florida

Administrative Code)

45. According to Rule 62-532-500(4), Florida

Administrative Code, all abandoned or incomplete wells must be

plugged from top to bottom with grout (neat cement). The Rule

and Stipulation 39 of the permit provide that the well drilling

contractor is responsible for proper abandonment of a well.

This is not conditioned on the willingness of the owner to pay.

The contractor has the responsibility to do it. An abandoned

well is one which the use of which has been permanently

discontinued or which is so in need of repair as to be useless.

These determinations must be made by the District, hence the

need for the permit. In the instant case it was determined that

Well Nos. 1 and 2 were not suited for their intended purpose,

and they should have been properly abandoned.

46. The process for well abandonment is not complex, bu t

it does require the obtaining of a permit. At least 24 hours in

advance of initiation of the plugging process, the contractor

must advise the District that the process will be implemented.

Thereafter, the well hole is filled with neat cement or

bentonite grout. To abandon a well by any other method would

require a variance from the District. Neither permit nor

variance was sought as to Well Nos. 1 and 2.

47. The standards adopted by the Department and the Water

Management Districts are statewide in application. Construction

of a water well without first obtaining a permit is classified

as a major violation. The failure to properly abandon a well or

the failure to use bentonite or neat cement in well closure are

also major violations. Failure to construct a well so that the

casing extends below the static water level is a major

violation. Failure to seat or seal a casing into rock formation

is a major violation. Failure to place a water-tight seal and

failure to extend well casing at least one foot above the ground

level are both major violations.

48. Penalties may be assessed for these violations

according to a schedule set out in the Department rules.

However, these penalties may be adjusted based on such factors

as the economic benefit to the contractor of his non-compliance;

his history of non-compliance; the negligence or willfulness of

his actions; and whether he acted in good faith. Under the

circumstances of this case, Mr. Gilboy is of the opinion that

the actions proposed by the District are appropriate.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

proceedings. Section 120.57(1), Florida Statutes.

50. The construction of water wells are within the

jurisdiction of the water management districts of the state.

Well construction activities must be carried on consistent with

the terms of applicable state statutes and the rules of the

water management district in which the construction activity

occurs. The water well construction activities carried on by

Respondent in this case fall within the jurisdiction of the

Department of Environmental Protection and the SWFWMD. The

applicable statute is Chapter 373, Florida Statutes. The

pertinent rules of the Department include Chapters 62-531 and

62-532, Florida Administrative Code, and the applicable District

rule is Rule 40D-3.521, Florida Administrative Code.

51. Rules 40D-3.521(2) and 62-532.500(3)(a)4, Florida

Administrative Code, require the upper terminus of a well casing

be sealed in a water-tight manner with a threaded, welded, or

bolted cover or valve. The evidence of record is clear that the

upper termini of Well No. 1 and Well No. 2 were not properly

sealed. Well No. 1 was closed with a wooden dowel jammed into

the opening, and Well No. 2 was closed with a cracked PVC cap

which was not threaded, welded, or bolted. Neither process

conformed to the requirements of the rules for well sealing.

These two violations are classified as major and support a fine

of $500 and assessment of five points each for a total of $1,000

fine and assessment of 10 points

52. The same provision of Rule 40D-3.52(2), Florida

Administrative Code, also requires that a well casing extend at

least 12 inches above the final ground level. Respondent

contends he did not cut the well casing of Well No. 1 off below

ground level, and considering all the evidence relevant to that

issue, it cannot be found that he did. The failure to properly

seal the well casing constitutes a major violation, which, under

the provisions of the rule, carries an administrative fine of

$500 and assessment of five points against the contractor's

license.

53. Both the District's Rule 40D-531(2) and the

Department's Rule 62-532.500(4) require that an incomplete well,

or a well that is unsuitable for its intended purpose, must be

properly abandoned by filling it from bottom to top with an

approved sealant. The evidence of record clearly shows that

neither Well No. 1 nor Well No. 2 was sealed from bottom to top

as required. This constitutes a major violation, and since two

wells were involved, each violation is punishable by an

administrative fine of $1,000 and assessment of ten points

against the license for each of the violations, a total fine of

$2,000 and assessment of 20 points.

54. Rules 40D-3.517(3) and 62-532.500(2)(d), Florida

Administrative Code, both require that dry bentonite be used to

seal the casing of a well during construction. The evidence of

record indicates that Respondent failed to utilize bentonite in

the construction of Well No. 1. This constitutes a major

violation and subjects the offender to an administrative fine of

$500 and assessment of 5 points.

55. The applicable Rules here, 40D-041(1) and 62-

532.400(5), Florida Administrative Code, require a permit be

obtained prior to commencement of construction of a water well

not specifically exempted (the former); and establish procedures

for moving the location of a permitted well (the latter). What

is required is that the unsatisfactory well be properly

abandoned prior to the construction of the new or relocated

well. Here, the evidence indicated Respondent obtained a permit

for Well No. 1 which was subsequently abandoned without first

obtaining a permit to do so. Aside from the improper method of

abandonment use, previously discussed herein, Respondent then

began construction of a second well without obtaining a permit,

claiming he felt the prior issued permit was acceptable since

the new well was so close to and a replacement for the older

one. In this assumption, Respondent was in error. He also

improperly abandoned Well No. 2 without a permit, and also

improperly sealed it with a PVC cap which was unacceptable for

that purpose.

56. Thereafter, Respondent began Well No. 3 located some

distance from the prior two wells. The District contends he did

not obtain a permit for this well, but the evidence of record

shows that two permits were obtained. The District has failed

to clearly show that the second permit did not pertain to Well

No. 3. A second permit was obtained, and the evidence indicates

it was for Well No. 3. Therefore, no penalty should be assessed

for this alleged violation. However, no permit was obtained for

Well No. 2. This is a major violation of Rule 40D-3.041(1),

Florida Administrative Code, and supports assessment of an

administrative fine of $100 and assessment of one point.

57. Still with reference to Well No. 3, the evidence of

record clearly indicates that the casing of this well did not

extend below the static water level in the well. This is a

major violation of Rule 62-532.500(2)(b), Florida Administrative

Code, and permits the imposition of an administrative fine of

$500 and assessment of five points.

58. The failure to seat or seal the casing of Well No. 3

into the rock level or other consolidated formation into which

it extends with neat cement grout, as called for in Rule 62-

532.500(2)(d)1, Florida Administrative Code, constitutes a major

violation permitting the imposition of an administrative fine of

$500 and assessment of five points.

59. Penalties considered under the terms of these rules

may be mitigated if appropriate. The evidence of record

indicates Respondent was previously disciplined by the district

in 1996, but in light of the fact that the penalty imposed was

rescinded or mitigated shortly thereafter, the prior discipline

is not considered for the purpose of aggravation or mitigation

of penalty in this case.

60. Taken together, the established violations by

Respondent support an administrative fine and assessment of less

than 50 points. This does not support a suspension of his

license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that Respondent, Fletcher Holt be ordered

to pay an administrative fine of $4,600; that 46 points be

assessed against his water well contractor's license; and that

he be required to properly abandon Well Nos. 1, 2, and 3, which

he drilled on the Grant property.

DONE AND ENTERED this 18th day of July, 2000, in

Tallahassee, Leon County, Florida.

__________________________________

ARNOLD H. POLLOCK

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 July, 2000.

COPIES FURNISHED:

Onofre Cintron, Esquire

305 North Parson Avenue

Brandon, Florida 33510

Margaret M. Lytle, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

E. D. "Sonny" Vergara, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Kathy C. Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

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.