02-001117 Southwest Florida Water Management District vs. Goodson Farms, Inc.
 Status: Closed
Recommended Order on Tuesday, July 30, 2002.


View Dockets  
Summary: Holder of water use permit responsible for over-pumpage of water by leasee using its property.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SOUTHWEST FLORIDA WATER )

12MANAGEMENT DISTRICT, )

15)

16Petitioner, )

18)

19vs. ) Case Nos. 02 - 1116

26) 02 - 1117

30BALM ASSOCIATES, INC., and )

35GOODSON FARMS, INC., )

39)

40Respondents. )

42______________________________)

43RECOMMENDED ORDER

45Pursua nt to notice, these matters were heard before the

55Division of Administrative Hearings by its assigned

62Administrative Law Judge, Donald R. Alexander, on June 12,

712002, in Tampa, Florida.

75APPEARANCES

76For Petitioner: Christine C. Stretesky, Esquire

82Mary Beth Russell, Esquire

86Southwest Florida Water Management

90District

912379 Broad Street

94Brooksville, Florida 34604 - 6899

99For Respondent: H. Vance Smith, Esquire

105(B alm) Smith, Clark, Delesie, Bierly,

111Mueller & Kadyk

114Post Office Box 2939

118Tampa, Florida 33601 - 2939

123For Respondent: William L. Williams, Jr., Esquire

130(Goodson Farms) Williams and Trayner

135602 Channelside Drive

138Tampa, Florida 33602 - 5443

143STATEMENT OF THE ISSUE

147The issue is whether Respondents should be subject to

156civil penalties and required to submit a Compliance Plan fo r

167the reasons stated in the Administrative Complaint and Order

176filed on January 8, 2002.

181PRELIMINARY STATEMENT

183This matter began on January 8, 2002, when Petitioner,

192Southwest Florida Water Management District, issued an

199Administrative Complaint and Order alleging that between

206March 1999 and July 2001, Respondents, Balm Associates, Inc.

215and Goodson Farms, Inc., had made withdrawals of water without

225having a water use permit, and after obtaining a permit in

236August 2001, had made withdrawals in excess of the quantity of

247water authorized by the water use permit. For these

256violations, the charging document seeks to impose civil

264penalties and to require Respondents to take corrective

272action. On January 30, 2002, Balm Associates, Inc. filed its

282Petition and Request for Hearing. That matter has been

291assigned DOAH Case No. 02 - 1116. On January 31, 2002,

302Goodson Farms, Inc. (through a lay person) filed a paper

312styled as Revised Petition for Informal Administrative

319Hearing. That matter has been assigned DOAH Case No. 02 - 1117.

331Both matters were referred to the Division of Administrative

340Hearings on March 19, 2002, with a request that an

350Administrative Law Judge be assigned to conduct a hearing.

359The two cases were later consolidated by Order dated April 1,

370200 2. On June 2, 2002, the cases were transferred from

381Administrative Law Judge Charles A. Stampelos to the

389undersigned.

390Petitioner's Motion to Dismiss the Revised Petition for

398Informal Administrative Hearing filed by Goodson Farms, Inc.,

406was granted by Orde r dated April 1, 2002, with leave to file

419an amended petition by April 20, 2002. After Goodson Farms,

429Inc., failed to make an amended filing, on May 22, 2002,

440Petitioner filed a Motion to Dismiss With Prejudice on the

450ground that Goodson Farms, Inc., had failed to file an amended

461petition as required by the earlier Order. At the final

471hearing, however, Petitioner requested that a ruling be

479reserved on its pending Motion to Dismiss until after the

489conclusion of the hearing.

493By Notice of Hearing dated Apri l 3, 2002, a final hearing

505was scheduled on June 12, 2002, in Tampa, Florida. At the

516final hearing, Petitioner presented the testimony of Edward

524Kouadio, staff hydrologist and accepted as an expert, and

533Michael E. Hare, supervisor for Goodson Farms, Inc. Also, it

543offered Petitioner's Exhibits 1 - 4, 6 - 10, 12, 13, and 15 - 17,

558which were received in evidence.

563The Transcript of the hearing was filed on June 28, 2002.

574Proposed Findings of Fact and Conclusions of Law were filed by

585Petitioner and Balm Associate s, Inc., on July 15, 2002, and

596they have been considered by the undersigned in the

605preparation of this Recommended Order. None were filed by

614Goodson Farms, Inc.

617FINDINGS OF FACT

620Based upon all of the evidence, the following findings of

630fact are determine d:

634a. Background

6361. In this enforcement action, Petitioner, Southwest

643Florida Water Management District (District), proposes to

650assess civil penalties against, and require a compliance plan

659from, Respondents, Balm Associates, Inc. (Balm) and Goodson

667Fa rms, Inc. (Goodson), on the grounds that from March 1999

678through July 2001 they made water withdrawals from certain

687property in Hillsborough County, Florida, without a water use

696permit, and after a permit was obtained in August 2001, they

707continued to exce ed the annual average daily withdrawals

716authorized under the permit through the month of November

7252001, or just prior to the preparation and issuance of the

736Administrative Complaint and Order (Complaint). 1

7422. While not denying that excessive pumpages ma y have

752occurred, and that a permit was not obtained until August

7622001, Balm points out that it is the owner - lessor of the

775property and not the consumptive user of the water, and

785contends that the District has no authority to enforce its

795rules against, and recover civil penalties from, the non - user

806of the water. In its request for a hearing, Goodson did not

818specifically dispute the allegation that it consumed water

826without a permit, or exceeded the withdrawal limits under the

836new permit, but contended inste ad that the limits were

846unrealistic and should be modified. At the final hearing,

855however, Goodson disputed the accuracy of the water

863consumption figures used in the Complaint.

8693. The District is the administrative agency charged

877with the responsibility to conserve, protect, manage, and

885control water resources within its boundaries and to

893administer and enforce Chapter 373, Florida Statutes.

9004. Balm is a corporation registered to do business in

910the State of Florida. Its mailing address is 2101 Huntingto n

921Avenue, Sarasota, Florida 34232. It owns approximately 220

929acres of land in Section 28, Township 31 South, Range 21 East,

941in Hillsborough County, Florida, which is the site of the

951alleged wrongdoing.

9535. Goodson is a corporation registered to do busin ess in

964the State of Florida. Its mailing address is Post Office Box

975246, Balm, Florida 33503. Goodson is in the farming business

985and operates a total of 13 farms, including the farm at issue

997in this proceeding.

1000b. Permit Requirements

10036. Under Rule 40D - 2.041(1), Florida Administrative Code,

1012a water use permit is required whenever total withdrawal

1021capacity from any source or combined sources is greater than

1031or equal to 1,000,000 gallons per day (gpd); annual average

1043withdrawal from any source or combined sources is greater than

1053or equal to 100,000 gpd; or withdrawal is from a well having

1066an outside diameter of 6 inches or more at the surface.

10777. Rule 40D - 2.351(1), Florida Administrative Code,

1085provides that a permittee must notify the District within 30

1095days of the sale or conveyance of permitted water withdrawal

1105facilities or the land on which the facilities are located.

1115The same rule also provides that where a permit has been

1126issued to a party whose ownership or legal control of the

1137permitted water wi thdrawal facilities subsequently ends, the

1145party who assumes control over the facilities may apply to

1155transfer the permit to himself or herself up to the renewal

1166date of the transferor's permit.

11718. Finally, Rule 40D - 2.351(2), Florida Administrative

1179Code , provides that until a permit is transferred or a new

1190permit is obtained, the party subsequently controlling the

1198permitted water withdrawal facilities will be in violation of

1207District rules for making withdrawals without the required

1215permit.

1216c. History of Permits on the Property

12239. On September 29, 1989, the District issued Water Use

1233Permit No. 207135.001 (the .001 permit) to James Brown (Brown)

1243and B & T Growers Partnership (B & T) for water withdrawals

1255from one well for agricultural purposes on Balm 's property.

1265The .001 permit authorized annual average withdrawals of

1273102,000 gpd of groundwater for agricultural irrigation.

128110. On August 29, 1990, the District adopted new rules

1291applicable to District permits within the Eastern Tampa Bay

1300Water Use C aution Area (ETBWUCA). The .001 permit was within

1311the ETBWUCA, and Brown and B & T were provided with a Notice

1324of Permit Modification and new Permit Conditions. The new

1333conditions became effective November 15, 1990. New Condition

1341No. 5 provided that

1345By July 31, 1995, all permitted withdrawal

1352points shall be equipped with totalizing

1358flow meters or other measuring devices as

1365approved in writing by the Director,

1371Resource Regulation Department. Such

1375devices shall have and maintain accuracy

1381within five perc ent of the actual flow

1389installed.

139011. On December 14, 1992, the District approved the

1399transfer of the .001 permit from Brown and B & T to B. Kenda

1413Produce.

1414d. The Unpermitted Water Withdrawals

141912. On June 30, 1997, Goodson entered into a two - year

1431agr icultural lease with Balm to use a portion of the property,

1443including acreage previously used by B. Kendra Produce. At

1452the time the lease was entered into, neither Respondent

1461applied to the District to have the .001 permit transferred

1471from B. Kendra Produ ce. It can be reasonably inferred from

1482the evidence that after the first lease expired, the parties

1492continued to execute new lease agreements at least through the

1502time of the hearing.

150613. The portion of the property which Goodson leased and

1516farmed is ref erred to as the "Sweat Loop Farm" and consists of

1529approximately 100 acres. There is one well with an outside

1539diameter of 10 inches at the surface located on the Sweat Loop

1551Farm. The well's total withdrawal capacity is approximately

15591,500 gallons per minu te (gpm), which is over 1,000,000 gpd.

1573Thus, withdrawals from the well required a water use permit.

158314. As noted earlier, Goodson operates a total of 13

1593farms on approximately 2,500 acres of land. There are

1603approximately 15 wells on all 13 farms, includ ing the Sweat

1614Loop Farm.

161615. Michael E. Hare, an irrigation supervisor who is

1625responsible for the irrigation of all 13 of Goodson's farms,

1635installed a total of approximately 8 meters on the farms,

1645including the meter on the Sweat Loop Farm. A totalizin g flow

1657meter, which was made by MiCrometer, was installed at the

1667Sweat Loop Farm in June 1997.

167316. Mr. Hare acknowledged that he was familiar with

1682MiCrometer meters and would be aware if the MiCrometer flow

1692meter on the Sweat Loop Farm was not functioni ng properly.

1703Whenever metering devices on the various Goodson farms have

1712malfunctioned in the past, Mr. Hare has taken the

1721malfunctioning meter to a metering company to be fixed.

173017. Goodson began irrigating the Sweat Loop Farm in

1739June 1997. Since t hat time, Goodson has been the sole water

1751user of the well on the farm. In March 1999, Goodson began

1763submitting to the District monthly pumpage reports for the

1772groundwater withdrawals on the Sweat Loop Farm. Although some

1781unmeasured withdrawals presumabl y occurred prior to March

17891999, the Complaint does not identify these as being a

1799violation.

180018. Mr. Hare and other supervisors are responsible for

1809collecting the meter readings which go on the monthly pumpage

1819reports and providing them to the District. The information

1828on the reports includes the permit number; the last month's

1838meter reading; the current month's meter reading; the total

1847gallons of water pumped for the current month; the meter

1857total; and the meter factor.

186219. To determine the average d aily withdrawal on the

1872Sweat Loop Farm, the District relied upon the calculations

1881provided by Goodson as to the total gallons of water pumped

1892for the month and divided this number by 30 days. From March

19041999 through July 2001, these quantities were as fol lows:

1914MONTH/YEAR AVERAGE DAILY PUMPAGE

1918March 1999 531,487

1922April 1999 No data available

1927May 1999 364,930

1931June 1999 0

1934July 1999 0

1937August 1999 57,410

1941September 1 999 49,563

1946October 1999 222,667

1950November 1999 250,667

1954December 1999 755,003

1958January 2000 689,433

1962February 2000 695,073

1966March 2000 544,427

1970April 2000 305,153

1974May 2000 597,720

1978June 2000 0

1981July 2000 62,120

1985August 2000 86,370

1989September 2000 123,233

1993October 2000 602,020

1997November 2000 409,550

2001December 2000 145,823

2005Janu ary 2001 957,690

2010February 2001 890,213

2014March 2001 391,280

2018April 2001 467,640

2022May 2001 617,177

2026June 2001 0

2029July 2001 0

203220. Under Rule 40D - 2.041(1)(a) - (c), Flo rida

2042Administrative Code, a water use permit was required for

2051Goodson's withdrawals since the well's total withdrawal

2058capacity is approximately 1,500 gpm, which is greater than

20681,000,000 gpd; the annual average withdrawals exceeded 100,000

2079gpd; and the wel l has an outside diameter of 10 inches at the

2093surface.

209421. The withdrawals on the Sweat Loop Farm were not

2104authorized by the .001 permit since neither Goodson or Balm

2114was a permittee under the permit. Even if Goodson could rely

2125on the permit, which it ca nnot, pumpage data provided by

2136Goodson reflects that the water withdrawals (except for nine

2145months) were in excess of that authorized by the permit.

215522. On June 16, 2000, the District mailed a Notice of

2166Non - Compliance for excessive water withdrawals to Go odson.

2176The Notice indicated that if the pumpage values submitted by

2186Goodson were incorrect, Goodson was to explain the error and

2196provide corrected quantities.

219923. On June 26, 2000, the District received a written

2209response to the Notice of Non - Compliance from the

2219superintendent of the Sweat Loop Farm who indicated that the

2229pumpage values were correct, and that the excess usage was due

2240to a "serious drought condition" which had caused a

"2249significant financial hardship on [the] farm." The response

2257also indi cated that Goodson would contact Mr. Haftel, owner of

2268Balm, to request that he "revise the water use permit for

2279spring crops."

228124. On November 22, 2000, the District mailed Goodson a

2291Notice of Violation indicating that the quantities authorized

2299by the .00 1 permit were still being exceeded and that the

2311District might seek monetary penalties if Goodson failed to

2320come into compliance within 30 days.

232625. Despite the foregoing Notice, Goodson continued to

2334make withdrawals without a permit and in excess of the

2344quantities formerly authorized under the .001 permit until

2352August 2001 when a new permit was finally obtained.

2361e. Issuance of a New Water Use Permit

236926. On January 2, 2001, the District received an

2378application for a General Water Use Permit seeking to mo dify

2389the .001 permit to increase the withdrawal quantities and to

2399transfer the permit from B. Kendra Produce to Balm. "Seymour

2409Haftel/ Balm Associates, Inc." was listed as the applicant,

2418and "Donn Goodson" from " Goodson Farms" was listed as

2427the con tact or consultant. Mr. Haftel signed the application

2437on behalf of Balm. Goodson assisted Balm in securing the

2447permit for the Sweat Loop Farm because Goodson wanted more

2457water for irrigation purposes.

246127. Section 2.1 of the Basis of Review for Water U se

2473Permit Application, adopted and incorporated by reference by

2481Rule 40D - 2.091, Florida Administrative Code, provides that

"2490[a]pplications for leased property, except property leased

2497from the District, must be either a joint application in the

2508name of the lessee and the property owner(s) or be only in the

2521name of the property owner(s)."

252628. In a Request for Additional Information mailed to

2535Balm on January 29, 2001, the District asked whether Goodson

2545should be listed as co - applicant on the application. O n April

255827, 2001, Balm submitted a response which indicated that

2567Goodson should not be listed as co - applicant.

257629. On August 6, 2001, the District issued Water Use

2586Permit No. 200007135.002 (the .002 permit) to Seymour

2594Haftel/Balm Associates, Inc. authoriz ing an increase in the

2603annual average withdrawals to 224,300 gpd. The permit had an

2614expiration date of September 29, 2009. The permit contained a

2624number of special conditions, none of which were challenged by

2634Balm.

2635f. Unauthorized Withdrawals Under the .002 Permit

264230. Special Condition No. 2 of the .002 permit requires

2652in part that the permittee:

2657continue to maintain and operate the

2663existing non - resettable, totalizing flow

2669meter(s), or other flow measuring device(s)

2675as approved by the Regulation Depart ment

2682Director, Resource Regulation, for District

2687ID No(s), Permittee ID No(s)[,] G - 1. Such

2697device(s) shall maintain an accuracy within

2703five percent of the actual flow as

2710installed. Total withdrawal and meter

2715readings from each metered withdrawal shall

2721be recorded on a monthly basis and reported

2729to the Permit Data Section, Records and

2736Data Department, (using District forms) on

2742or before the tenth day of the following

2750month.

275131. In the event a permittee chooses not to use a

2762totalizing flow meter, as req uired by Special Condition No. 2,

2773the District will review information provided by the measuring

2782device's manufacturer to determine if the measuring device

2790would maintain a five percent accuracy as required by the

2800Condition.

280132. The meters have to be moni tored and calibrated

2811periodically for accuracy. It is the permittee's

2818responsibility to comply with the conditions of the permit,

2827including Special Condition No. 2, which requires the

2835submittal of accurate pumpage reports.

284033. Goodson submitted the meter readings on behalf of

2849Balm beginning in September 2001, which covered the

2857withdrawals for the month of August 2001.

286434. The District relied on the meter readings submitted

2873by Goodson to determine the annual average daily pumpage

2882calculation for the .002 permit. The calculation is a running

289212 - month average, whereby each month the annual average daily

2903quantity is recalculated based on the previous 12 - month

2913pumpage.

291435. The running annual average daily pumpage and

2922percentage of pumpage which exceeded the .002 permit from

2931August 2001 through May 2002 are as follows:

2939M ONTH/YEAR ANNUAL AVERAGE DAILY PUMPAGE PERCENTAGE

2946OVERPUMPED

2947August 2001 378,462 69 percent

2953September 2001 382,622 71 percent

2959Octob er 2001 376,687 68 percent

2966November 2001 383,008 71 percent

2972December 2001 379,212 69 percent

2978January 2002 327,343 46 percent

2984February 2002 321,530 43 percent

2990March 2002 350,701 56 percent

2996April 2002 356,013 59 percent

3002May 2002 338,131 51 percent

300836. As the foregoing data reflects, the withdrawals from

3017the Sweat Loop Farm were in excess of that authorized by the

3029.002 permit from August 2001 through May 2002.

3037CONCLUSIONS OF LAW

304037. The Division of Administrative Hearings has

3047jurisdiction over the subject matter and the parties heret o

3057pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

306538. Because Respondents may suffer civil penalties and

3073other disciplinary action, Petitioner bears the burden of

3081showing by clear and convincing evidence that the charges in

3091the Administrat ive Complaint and Order are true. See , e.g. ,

3101Ferris v. Turlington , 510 So. 2d 292, 294 (Fla. 1987).

311139. Section 373.119(1), Florida Statutes, provides in

3118part that

3120Whenever the executive director of a water

3127management district has reason to believe

3133that a violation of any provision of this

3141chapter or any regulation promulgated

3146thereunder or permits or order issued

3152pursuant thereto has occurred, is

3157occurring, or is about to occur, the

3164executive director may cause a written

3170complaint to be served upon the alleged

3177violator or violators.

318040. Acting under that authority, the District has issued

3189a charging document alleging that (a) Respondents made

"3197withdrawals prior to transferring an existing permit or

3205obtaining a new permit" in violation of Section 373.21 9(1),

3215Florida Statutes, and Rules 40D - 2.041(1) and 40D - 2.351,

3226Florida Administrative Code, and (b) Respondents made

"3233withdrawals in excess of the quantity of water authorized by

3243the .002 Permit" in violation of Section 373.219(1),

3251Florida Statutes, and Rule 40D - 2.381, Florida Administrative

3260Code.

326141. As to the first charge, Section 373.219(1), Florida

3270Statutes, authorizes the District to "require such permits for

3279consumptive use of water and may impose such reasonable

3288conditions as are necessary to assu re that such use is

3299consistent with the overall objectives of the district . . .

3310and is not harmful to the water resources of the area." Rule

332240D - 2.041(1), Florida Administrative Code, requires a water

3331use permit if any of the following thresholds are exc eeded:

3342total withdrawal capacity from any source is greater than

33511,000,000 gpd; annual average withdrawal from any source or

3362combined sources is greater than or equal to 100,000 gpd; and

3374withdrawal is from a well having an outside diameter of 6

3385inches or m ore at the surface. Finally, Rule 40D - 2.351,

3397Florida Administrative Code, generally relates to the transfer

3405of permits and provides that where a permit has been issued to

3417a party whose ownership or legal control of the facilities

3427subsequently terminates, the party subsequently controlling

3433the facilities may apply to transfer the permit to himself or

3444herself up to the renewal date of the transferor's permit.

3454Subsection (2) of the rule also contains a prohibition against

3464any water withdrawals from a well un til a permit is

3475transferred or a new permit is obtained.

348242. As to the second charge, Rule 40D - 2.381, Florida

3493Administrative Code, enumerates the standard conditions found

3500in all water use permits, including one in paragraph (3)(q)

3510that "[a]ll permits i ssued pursuant to these Rules are

3520contingent upon continued ownership or legal control of all

3529property on which pumps, wells, diversions or other water

3538withdrawal facilities are located." Another condition in

3545paragraph (3)(c) requires that the permittee " not deviate from

3554any of the terms or conditions of the permit [including the

3565total quantities of water authorized under the permit] without

3574written approval by the District."

357943. Balm does not dispute its ownership of the property,

3589the fact that overpum page occurred on the Sweat Loop Farm, or

3601that Goodson has violated the law. Rather, in its Proposed

3611Findings of Fact and Conclusions of Law, Balm contends that

3621the District lacks specific statutory authority to "require

3629Balm[,] a non - user of the water wit hdrawal facility[,] to

3643comply with the permit conditions required by Rule 40D - 2.381."

3654More specifically, it disputes the validity of Rule 40D - 2.041,

3665Florida Administrative Code, which requires a permit before

3673withdrawals of water may occur, and Section 2 .1(1) of the

3684Basis of Review, which requires that "[a]pplications for

3692leased property . . . must be either a joint application in

37041 8

3706the name of the lessee and the property owner(s) or be only in

3719the name of the property owner(s)."

372544. Balm voluntarily app lied for the .002 permit for the

3736purpose of increasing water quantities for its lessee,

3744Goodson. Although Balm was provided with notice of its rights

3754to challenge the .002 permit, including any condition that it

3764disagreed with, it did not request a hearin g. Thus, Balm has

3776waived its right to challenge any aspect of the permit.

378645. At the time Balm was issued its permit, it was

3797subjected to liability for any violations of the terms and

3807conditions of the permit, including Standard Condition No. 3

3816which p rohibits the permittee from deviating from "any of the

3827terms or conditions of this permit without written approval by

3837the District." Thus, Balm was responsible for complying with

3846the condition that withdrawals not exceed the "current

3854permitted quantities" of 224,300 gpd. By failing to comply

3864with this provision, and as the permittee having "continued

3873ownership or legal control of [the] property," Balm violated

3882the terms of the permit and is subject to this disciplinary

3893action. Accordingly, Balm is liable for any excessive

3901withdrawals of water under the .002 permit, as charged in the

3912Complaint. 2

391446. Balm has not complied with the provisions which

3923govern challenges of an agency rule. See Section 120.56(1),

3932Florida Statutes (2001). Therefore, the undersig ned lacks

3940authority to consider the contention that an administrative

3948rule or a portion of the Basis of Review are an invalid

3960exercise of delegated legislative authority.

396547. By clear and convincing evidence, Petitioner has

3973shown that the withdrawals of w ater on the Sweat Loop Farm

3985required a water use permit; that Goodson was in control of

3996the water withdrawal facility located on the farm between June

40061997 through July 2001, or prior to the issuance of permit

4017.002; and that neither Goodson or Balm possess ed a permit for

4029withdrawals during this time. The evidence also clearly and

4038convincingly demonstrates that the meter readings submitted by

4046Goodson beginning in March 1999 and continuing through July

40552001 were accurate and that all water withdrawals during that

4065time period (except for the months of June and July 1999, June

40772000, and June and July 2001 when none occurred) were not

4088authorized. However, any withdrawals which may have occurred

4096prior to March 1999, while unlawful, are not cited as a basis

4108for d isciplinary action.

411248. Accordingly, it is concluded that Goodson is liable

4121for withdrawing groundwater without a permit from March 1999

4130through July 2001 (except for the five months noted above), in

4141violation of Section 373.219(1), Florida Statutes, and Rules

414940D - 2.041(1)

4152and 40D - 2.351(2), Florida Administrative Code, as charged in

4162the Complaint.

416449. Like Balm, and as the lessee of the property,

4174Goodson is also liable for withdrawing groundwater in excess

4183of that authorized under the .002 permit from August 2001

4193through May 2002, in violation of Section 373.219(1),

4201Florida Statutes, and Rule 40D - 2.381(3)(c), Florida

4209Administrative Code, as charged in the Complaint.

421650. In its Proposed Recommended Order, Petitioner

4223recommends that Balm and Goodson be required to submit to the

4234District within fourteen days after entry of a final order an

4245acceptable written plan describing how Respondents shall

4252achieve full compliance with the .002 permit. However, no

4261civil penalties are recommended by the District at this time.

4271This recommendation tracks verbatim the suggested corrective

4278action in paragraph 17 of the the Complaint. While this

4288penalty appears to be relatively light given the repeated

4297nature of the violations over a 3 - year period, it has been

4310recomm ended below.

431351. In light of the above conclusions, the District's

4322Motion to Dismiss with Prejudice Goodson's Revised Petition

4330for Informal Adminstrative Hearing is rendered moot.

4337RECOMMENDATION

4338Based on the foregoing Findings of Fact and Conclusions

4347of Law, it is

4351RECOMMENDED that the Southwest Florida Water Management

4358District enter a final order determining that Respondents are

4367guilty of the charges in its Administrative Complaint and

4376Order except as concluded in paragraph 48 above a nd endnote 2

4388below; that Respondents be required to submit an acceptable

4397written plan (Compliance Plan) to the District for its

4406consideration and approval within fourteen days after entry of

4415the final order; that the Compliance Plan describe how

4424Respondent s shall achieve full compliance with the .002

4433permit; that the Compliance Plan include reductions in

4441withdrawals, water conservation measures, and development and

4448utilization of alternative resources; that the Compliance Plan

4456establish deadlines for implem entation and completion of

4464corrective actions; that full compliance be achieved within

4472120 days after entry of the final order; and that any failure

4484of Respondents to comply with any provision of the Compliance

4494Plan shall constitute a violation of the fina l order.

4504DONE AND ENTERED this 30th day of July, 2002, in

4514Tallahassee, Leon County, Florida.

4518___________________________________

4519DONALD R. ALEXANDER

4522Administrative Law Judge

4525Division of Administrative Hearings

4529The DeSoto Building

45321230 Apalachee Parkway

4535Tallahassee, Florida 32399 - 3060

4540(850) 488 - 9675 SUNCOM 278 - 9675

4548Fax Filing (850) 921 - 6847

4554www.doah.state.fl.us

4555Filed with the Clerk of the

4561Division of Administrative Hearings

4565this 30th day of July, 20 02.

4572ENDNOTES

45731/ At hearing, and without objection, Petitioner introduced

4581evidence showing that withdrawals continued to exceed the

4589permit limits through the month of May 2002.

45972/ Although the Complaint alleges that Balm is also guilty of

4608withdrawing water without a permit prior to the issuance of the

4619.002 permit, the District has abandoned that charge in its

4629Proposed Recommended Order.

4632COPIES FURNISHED:

4634E.D. "Sonny" Vergara, Executive Director

4639Southwest Florida Water M anagement District

46452379 Broad Street

4648Brooksville, Florida 34604 - 6899

4653Christine C. Stretesky, Esquire

4657Southwest Florida Water Management District

46622379 Broad Street

4665Brooksville, Florida 34604 - 6899

4670William L. Williams, Jr., Esquire

4675Williams & Traynor

4678602 Channelside Drive

4681Tampa, Florida 33602 - 5443

4686H. Vance Smith, Esquire

4690Smith, Clark, Delesie, Bierly,

4694Mueller & Kadyk

4697Post Office Box 2939

4701Tampa, Florida 33601 - 2939

4706NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4712All parties have the right to submit written exc eptions within

472315 days of the date of this Recommended Order. Any exceptions

4734to this Recommended Order should be filed with the agency that

4745will render a final order in this matter.

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PDF
Date
Proceedings
PDF:
Date: 12/16/2002
Proceedings: Order from the District Court of Appeal: Appellant`s motion for extension of time is granted filed.
PDF:
Date: 11/01/2002
Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 2DO2-4696
PDF:
Date: 10/21/2002
Proceedings: Order from the District Court of Appeal: "Stipulation to Transfer Appellate Proceeding, filed October 10, 2002, is granted."
PDF:
Date: 09/30/2002
Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 5D02-311
PDF:
Date: 09/03/2002
Proceedings: Notice of Entry of Final Order; Final Order filed.
PDF:
Date: 08/29/2002
Proceedings: Agency Final Order
PDF:
Date: 08/13/2002
Proceedings: Order issued. (motion denied)
Date: 08/09/2002
Proceedings: Pre-Hearing Stipulation (filed by Complainant via facsimile).
Date: 08/09/2002
Proceedings: Administrative Complaint and Order (filed by Complainant via facsimile).
PDF:
Date: 08/09/2002
Proceedings: Complainant Southwest Florida Water Management District`s Motion for Corrected Recommended Order (filed via facsimile).
PDF:
Date: 07/30/2002
Proceedings: Recommended Order
PDF:
Date: 07/30/2002
Proceedings: Recommended Order issued (hearing held June 12, 2002) CASE CLOSED.
PDF:
Date: 07/30/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 07/15/2002
Proceedings: Balm & Associates Inc.`s Proposed Findings of Fact, Conclusions of Law filed.
PDF:
Date: 07/15/2002
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 07/15/2002
Proceedings: Petitioner`s Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 06/28/2002
Proceedings: Transcript (Final Hearing) filed.
PDF:
Date: 06/28/2002
Proceedings: Complainant`s Exhibits (Volume 1 and 2) filed.
Date: 06/19/2002
Proceedings: Transcript (Volume 1 and 2) filed.
Date: 06/19/2002
Proceedings: Transcript (Volume 1 and 2) filed.
Date: 06/12/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 05/31/2002
Proceedings: (Joint) Pre-Hearing Stipulation (filed via facsimile).
PDF:
Date: 05/22/2002
Proceedings: Notice of Taking Deposition, R. Lyman, M. Hare(2) (filed via facsimile).
PDF:
Date: 05/22/2002
Proceedings: Complainant`s Motion to Dismiss with Prejudice Respondent Goodson Farms, Inc.`s Petition for Informal Administrative Hearing (filed via facsimile).
PDF:
Date: 05/13/2002
Proceedings: Notice of Appearence (filed by W. Williams via facsimile).
PDF:
Date: 05/13/2002
Proceedings: Letter to Judge Stampelos from R. Lyman responding to order. (filed via facsimile).
PDF:
Date: 05/03/2002
Proceedings: Order issued. (within 10 days of this order Mr. Lyman shall file an affidavit setting forth his qualifications)
PDF:
Date: 05/02/2002
Proceedings: Letter to Judge Stampelos from R. Lyman requesting continuation of qualifications (filed via facsimile).
PDF:
Date: 04/05/2002
Proceedings: Letter to Judge Stampelos from D. Goodson regarding qualified representative filed.
PDF:
Date: 04/04/2002
Proceedings: Letter to Judge Stampelos from R. Lyman in response to initial order (filed via facsimile).
PDF:
Date: 04/03/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 04/03/2002
Proceedings: Notice of Hearing issued (hearing set for June 12, 2002; 9:00 a.m.; Tampa, FL).
PDF:
Date: 04/03/2002
Proceedings: Order issued (enclosing rules regarding qualified representatives).
PDF:
Date: 04/01/2002
Proceedings: Order issued. (District`s motion to dismiss is granted and Goodson shall file an amended petition which complies with Rule 28-106.201(2)(c)-(g), within 20 days from this order)
PDF:
Date: 04/01/2002
Proceedings: Order of Consolidation issued. (consolidated cases are: 02-001116, 02-001117)
PDF:
Date: 04/01/2002
Proceedings: Complainant Southwest Florida Water Management District`s Motion to Consolidate (cases requested to be consolidated: case nos. 02-1116, 02-1117) filed via facsimile.
PDF:
Date: 03/20/2002
Proceedings: Initial Order issued.
PDF:
Date: 03/19/2002
Proceedings: Complainant`s Motion to Dismiss Petition for Informal Administrative Hearing or, in the Alterantive, Motion for More Definate Statement filed.
PDF:
Date: 03/19/2002
Proceedings: Administrative Complaint and Order filed.
PDF:
Date: 03/19/2002
Proceedings: Petition for Informal Administrative Hearing filed.
PDF:
Date: 03/19/2002
Proceedings: Agency referral filed.
PDF:
Date: 03/18/2002
Proceedings: Letter to C. Stretesky from R. Lyman requesting a dismissal of petition filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
03/19/2002
Date Assignment:
06/05/2002
Last Docket Entry:
12/16/2002
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (5):