03-001129 Alan R. Behrens vs. Has-Ben Groves And Southwest Florida Water Management District Status: Closed DOAH Final Order on Wednesday, February 25, 2004.

Summary: Respondent Water Management District proved that Petitioner signed Petition and Amended Petition for Formal Hearing for an improper purpose pursuant to Section 120.569(2)(e), Florida Statutes; $500 sanctions awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN R. BEHRENS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1129

)

HAS - BEN GROVES and SOUTHWEST )

FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

)

FINAL ORDER

Notice was given, and on November 13, 2003, a final hearing

was held in this case. Pursuant to the authority set forth in

Sections 120.569(2)(e) and 120.57(1), Florida Statutes, the

final hearing was conducted by Charles A. Stampelos,

Ad ministrative Law Judge, by video teleconference with sites in

Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Alan R. Behrens, pro se

4070 Southwest Armadillo Trail

Arcadia, Florida 34266

For Southwest Flori da Water Management District

Martha A. Moore, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

STATEMENT OF THE IS SUE

Whether the Southwest Florida Water Management District

proved that Alan R. Behrens signed a pleading, motion, or other

paper in this proceeding for an “improper purpose,” and, if so,

whether sanctions should be imposed pursuant to Section

120.569(2)(e ), Florida Statutes?

PRELIMINARY STATEMEN T

On January 27, 2003, the Southwest Florida Water Management

District (District) issued a notice of final agency action for

approval of Water Use General Permit (WUP) No. 20012410.000

issued to Has - Ben Groves. Has - Ben Groves’ well and property are

located in Hardee County.

On February 19, 2003, Alan R. Behrens (Mr. Behrens) filed a

Petition for Formal Hearing, which the District found to be

timely, but not in substantial compliance with the requirements

of Section 120.569(2)(c), Florida Statutes, and Florida

Administrative Code Rule 28 - 106.201(2) governing the initiation

of administrative proceedings. The District issued an Order of

Dismissal Without Prejudice on February 27, 2003. On March 12,

2003, Mr. Behrens f iled an Amended Petition for Formal Hearing.

On March 26, 2003, the District referred the matter to the

Division of Administrative Hearings (DOAH) for the assignment of

an administrative law judge.

After receiving a response to the Initial Order, the case

was set for final hearing for June 2 - 3, 2003, in Bartow,

Florida. After granting a joint motion to continue the final

hearing, the final hearing was re - set for August 14 - 15, 2003, in

Bartow, Florida.

On May 23, 2003, the District deposed Mr. Behrens.

On J une 25, 2003, the District filed a "Motion for Summary

Recommended Order of Dismissal and for Reasonable Costs and

Attorney’s Fees," with affidavits and a copy of the Transcript

of Mr. Behrens’ deposition.

On June 30, 2003, Mr. Behrens filed a "Notice of Voluntary

Dismissal" and responded, in part, to the District’s Motion for

Summary Recommended Order, but not to the District’s request for

attorney’s fees and costs.

On June 30, 2003, an “Order Closing File” was issued,

canceling the final hearing. This O rder also denied the

District’s motion for reasonable costs and attorney’s fees

requested pursuant to Section 120.595(1), Florida Statutes.

However, jurisdiction was retained “for consideration of the

District’s motion for reasonable attorney’s fees and c osts (as a

sanction) pursuant to Section 120.569(2)(e), Florida Statutes.”

The District was requested to advise the undersigned within ten

days from the date of the Order if the District wished to pursue

the request for sanctions.

On July 2, 2003, the Dis trict advised that it wished to

pursue sanctions.

On July 18, 2003, an Order was issued which clarified the

“Order Closing File” and gave Mr. Behrens until August 1, 2003,

to file a response to the District’s request for reasonable

attorney’s fees and cost s as a sanction.

On July 30, 2003, Mr. Behrens filed a response and objected

to the District’s request.

On November 13, 2003, a final hearing was held by video

teleconference with sites in Tallahassee and Tampa, Florida.

The District presented the testimo ny of Michael L. Phillippi,

professional geologist; Michael K. Balser, Water Use Manager for

the Bartow Regulation Department; Mary Beth McNeil, Esquire;

Diane Lee, Administrative Supervisor; and Douglas P. Manson,

Esquire. The District’s Exhibits 1 - 13 we re admitted into

evidence. Mr. Behrens testified in his own behalf and his

Exhibits 1 - 4 were admitted into evidence.

Official recognition was taken of the recommended and final

orders in the following administrative cases: DeSoto Citizens

Against Polluti on, Inc. v. Farmland Hydro Limited Partnership,

Frank T. Basso, Jr., Redland Growers Exchange, Inc., and

Southwest Florida Water Management District , Case No. 02 - 0232,

2002 WL 1592349 (DOAH June 3, 2002; SWFWMD June 25,

2002)(Basso); Alan Behrens and DeSot o Citizens Against

Pollution, Inc. v. Michael J. Boran and Southwest Florida Water

Management District , Case No. 02 - 0282, 2002 WL 31125125 (DOAH

July 29, 2002; SWFWMD Aug. 27, 2002)(Boran); Alan R. Behrens, et

al. v. Consolidated Minerals, Inc. and Southwe st Florida Water

Management District, et al. , Case Nos. 92 - 0953 - 92 - 0957, 1993 WL

944120 (DOAH April 20, 1993; SWFWMD Nov. 30,(1994)

(Consolidated). (Transcript (T.), p. 88.)

The one - volume Transcript of the final hearing was filed

with DOAH on December 3, 2003. After Mr. Behrens was granted an

extension of time to file his proposed final order, the District

filed its Proposed Final Order on February 2, 2004, and

Mr. Behrens filed his Proposed Final Order on February 3 and 9,

2004, and have been considered in the preparation of this Final

Order.

FINDINGS OF FACT

The Parties

1. Alan R. Behrens has resided and owned property at 4740

Southwest Armadillo Trail, Arcadia, DeSoto County, Florida,

since 1985. There is a two - inch free - flowing artesian well used

for domestic purposes on this property. Mr. Behrens’ well is

approximately 150 feet deep and draws water from the

Intermediate aquifer. The well currently has no pumping

mechanism, and Mr. Behrens relies on an unaided artesian flow to

produce water, which at times is inadequate.

2. In prior administrative cases and the case involving

Has - Ben Groves, Mr. Behrens is concerned that the withdrawal of

water in the amounts requested by others from areas near his

property will impair his ability to draw adequate amoun ts of

water from his well.

3. Mr. Behrens stated that his purpose in challenging the

Has - Ben Groves WUP “is to receive assurances that any proposed

use is not going to adversely impact [his] well. That’s [his]

general biggest, main goal.” He feels that he did not receive

assurances from the District; therefore, his only option was to

request a hearing.

4. The Southwest Florida Water Management District is the

administrative agency charged with the responsibility to

conserve, protect, manage, and control wate r resources within

its boundaries pursuant to Chapter 373, Florida Statutes, and

the rules promulgated thereunder as Chapter 40D, Florida

Administrative Code. The District has the statutory duty to

review and approve or deny applications requesting consum ptive

water use permits.

The Has - Ben Groves WUP Application

5. On January 27, 2003, the District issued a notice of

final agency action for approval of Water Use General Permit No.

20012410.000 issued to Has - Ben Groves.

6. The WUP authorized annual averag e groundwater

withdrawals of 31,100 gallons per day (gpd) to be used for

irrigation of Has - Ben Groves’ 40 - acre citrus grove. (Peak

monthly withdrawals of 254,300 gpd and withdrawals for crop

protection at 1,015,200 gpd were authorized.)

7. Tomlinson previ ously owned the Has - Ben Groves’ 40 acres.

The District previously permitted the well on the Has - Ben Groves

40 acres when Tomlinson owned the property.

8. The Tomlinson well was previously permitted for 77,000

gpd on an annual basis, but the permit expired . Thus, Has - Ben

Groves applied for a new WUP.

9. The Has - Ben Groves permitted well site is located in

Hardee County and is approximately 16 miles from Mr. Behrens’

artesian well in DeSoto County, and is expected to draw

approximately 94 percent of its water from the Upper Floridan

aquifer.

Did Mr. Behrens sign a pleading, motion,or other paper for an

improper purpose?

10. On January 20, 2003, Mr. Behrens, by letter, asked the

District to be advised of any agency action regarding five WUP

applications, including the Has - Ben Groves application. In this

letter, Mr. Behrens also requested, what he characterized as

“ public information ,” “what the predicted drawdown to the

intermediate and Floridan aquifers are.” He inquired further:

“Please make sure the hydrologis t includes this information. I

have previously asked for this basic information; please do not

force me to take legal action against SWFMD per the Sunshine law

& other public information laws.” (Emphasis in original.)

Mr. Behrens was copied with the Dis trict’s “Final Agency Action

Transmittal Letter” sent to Has - Ben Groves on January 27, 2003.

11. According to Mr. Behrens, “legal action” meant the

filing of a petition requesting an administrative hearing. He

felt that it was his only option to receive inf ormation and

assurances. In particular, Mr. Behrens wanted the District to

create and provide him with drawdown contours and modeling even

if the District believed it was unnecessary. See Endnote 1.

12. By letter dated January 29, 2003, the District, by

Pam ela A. Gifford, CLA, Office of General Counsel, responded to

Mr. Behrens’ request for ‘predicted drawdown’ information and

stated in part: “First, please be advised, the District does

not prepare ‘predicted drawdown’ for all water use permits.

Second, to ask for ‘predicted drawdown’ for permits, you are

making a pubic records request. The District does not accept

anticipatory public record requests. In other words, when the

District receives a public records request, it will search for

existing records responsive to the request as of the date of the

public records request. . . . Third, the District will not

create a record to respond to a public records request. If a

‘predicted drawdown’ exists, it will be provided to you, if it

does not, it will not b e created to answer your request.” 1

13. By letter dated January 31, 2003, Mr. Behrens

responded to the District’s January 29, 2003, letter referred to

above and expressed his understanding that he could “expect the

results of drawdown modeling to be included i n Notices of Agency

Action that [he] receive from the District.” Mr. Behrens

requested the name of the District office and the hydrologist

who reviewed the Has - Ben Groves WUP application; the location of

the file; a statement that it was “apparently a new withdrawal”;

a request to identify the amount of water coming from the

Intermediate and Floridan aquifers; a query as to why the

withdrawal would “be cased to only a depth of 120 feet; won’t

this mean that much of the water will be drawn from the

intermed iate?” Mr. Behrens also requested “a copy of the

drawdown modeling results (map).” Mr. Behrens advised that it

was “very important that new groundwater withdrawals do not

lower [his] well level further, because [he is] relying

completely on artesian free - flowing pressure; every inch of

level reduction creates further hardship for [him].” (During

his deposition, Mr. Behrens felt that the District could produce

the information on a “voluntary” basis in order to give him

“assurances up front.”)

14. By letter dated February 10, 2003, the District, by

Ms. Gifford, responded to Mr. Behrens’ January 31, 2003, letter

and advised him “that drawdown modeling will not be included in

Notices of Agency Action that you receive from the District.

The only way that you wi ll receive the drawdown modeling is if

the District has records related to the modeling at the time you

make a specific public records request for same. For example,

if you make a public records request today for drawdown

modeling, the District will only provide records to you that are

in our files as of today. You would have to make a subsequent

public records request to get any records that were received or

created by the District after today’s date.” (Emphasis in

original.) Ms. Gifford also advised Mr . Behrens that he was

being provided with “copies of documents that are responsive to

[his] public records request dated January 31, 2003.”

15. Mr. Behrens was provided with a copy of the Has - Ben

Groves General Water Use Permit Application which indicated, i n

part, that the application was “new” as opposed to a “renewal”

or “modification”; the location of the well site; that Has - Ben

Groves intended to irrigate 40 acres for citrus; and that the

construction date of the well was in “1960.” The word

“existing” is written on the line describing, in part, the

casing diameter, depth, and pump capacity. See Finding of Fact

18. The name “Phillippi” is handwritten on page one of the

application. (Michael Phillippi is a professional geologist and

employed with the D istrict for over nine years. He had a pre -

application telephone conversation with the applicant for the

Has - Ben Groves WUP.) A “Water Use Permit Evaluation Worksheet”

was also enclosed which included, among other information, the

names “Lucille” and “Deb orah” and the initials of two persons.

16. The record does not indicate that Mr. Behrens followed

up with the District regarding the Has - Ben Groves application

after receiving the District’s February 10, 2003, letter and

enclosures.

17. On February 19, 2003, Mr. B ehrens filed a Petition for

Formal Hearing challenging the District’s preliminary decision

to approve the WUP. The District determined that the Petition

was timely filed, but not in substantial compliance with the

requirements of Section 120.569(2)(c), Fl orida Statutes, and

Florida Administrative Code Rule 28 - 106.201(2), governing the

initiation of administrative proceedings. The District issued

an Order of Dismissal Without Prejudice on February 27, 2003.

18. On March 12, 2003, Mr. Behrens filed an Amended

Petition for Formal Hearing. Mr. Behrens alleged that the

withdrawal to be authorized by the WUP “would use huge

quantities of water from the intermediate aquifer, even though

water from the Floridan aquifer is completely suitable for

citrus irrigation”; is “very close” to Mr. Behrens’ “property

and well”; and the “cone of depression in the Intermediate

aquifer that would be caused by the new use will cause a

reduction in Petitioner’s water level and pressure and impair

the ability of his well to produce water.” (Mr. Behrens also

alleged that “[t]he proposed well would be eight inches in

diameter, 920 feet deep, and cased to only 120 feet.” See

Finding of Fact 15.)

19. Mr. Behrens also alleged that the District refused to

provide certain information, such a s predicted drawdown to area

wells. He also raised numerous disputed issues of material

fact.

20. On May 23, 2003, the District deposed Mr. Behrens.

During his deposition, Mr. Behrens was asked to identify all

facts and documents or sources of information he relied on in

making the allegations in the Amended Petition. Mr. Behrens

testified that the challenged water use withdrawal “seems like a

very excessive amount”; “is [c]lose enough to have an impact on

[his] well”; “is going to have a drawdown, is going to have an

impact on the aquifer” and he has “a well on the aquifer”; that

“these wells are going to have a drawdown and they’re going to

draw down [his] well”; and that his position, that the Has - Ben

Groves well will have a drawdown impact on his well, is based

upon “[s]cience and facts and common sense” and “the evidence is

self - evident.”

21. Mr. Behrens has “done no studies.” Rather, he relies

on information, such as the documents he introduced into

evidence and his knowledge about the area and the District , to

support the allegations in the Petition and Amended Petition.

See , e.g. , Findings of Fact 22 - 23. He does not have enough

money to hire experts. He relies on the District’s hydrologists

for the information he requests and for assurances. Yet,

Mr. B ehrens did not contact any District hydrologist to discuss

his concerns before he filed the Petition and Amended Petition.

See also Findings of Fact 26 - 28.

22. On June 17, 2003, Mr. Behrens responded to the

District’s Interrogatories, which requested Mr. Behrens to

identify all facts he relied upon in making his assertions,

including all documents prepared or reviewed in connection with

such assertions. Mr. Behrens stated that no specific documents

were prepared or reviewed in connection with his assertio ns made

in paragraph 6 of the Amended Petition, and that the assertions

in paragraph 6 were “pure truth – there’s no need to go

searching to prove the obvious!” (Paragraph 6 of the Amended

Petition alleged: “The proposed new groundwater withdrawal would

u se huge quantities of water from the Intermediate aquifer, even

though water from the Floridan aquifer is completely suitable

for citrus irrigation.”)

23. During the final hearing, Mr. Behrens claimed that

prior to filing his Petition, he relied on his exper ience and

the information he maintains regarding the District’s

identification of water use problems, and the District’s March

2000 Horse Creek Draft Resource Evaluation Report, the “Water

Resources in Jeopardy” report published during the early 1990’s,

an d the 1992 Recommended Order in Alan R. Behrens, et al. v.

Consolidated Minerals, Inc. and Southwest Florida Water

Management District, et al. , Case Nos. 92 - 0953 - 92 - 0957, 1993 WL

944120 (DOAH April 20, 1993; SWFWMD Nov. 30, 1994), in which

Hearing Officer Daniel M. Kilbride found that Mr. Behrens was

substantially affected by the District’s then proposed renewal

and modification of an existing WUP held by Consolidated

Minerals. 1993 WL 944120, at *4. (In interrogatory responses,

Mr. Behrens also identifie d a 1986 potentiometric surface map of

the Intermediate aquifer, among other maps he might identify.)

24. These documents do not provide information relevant to

whether the challenged Has - Ben Groves water withdrawal meets the

conditions for issuance of a WUP or would lead a reasonable

person to allege that the challenged Has - Ben Groves water use

and well would have an adverse impact on Mr. Behrens’ use of his

well.

25. Before filing his initial Petition and during the

interval before he filed his Amended Petition , Mr. Behrens did

not contact or speak to District staff who reviewed the Has - Ben

Groves WUP application or District staff in the Bartow Service

Office (the District service office responsible for permitting

matters in Hardee County) to obtain information concerning the

Has - Ben Groves permit application or to discuss his concerns

regarding whether the proposed water use to be authorized by the

WUP would adversely affect his well. But see Finding of Fact

13, which indicates that on January 31, 2003, Mr. Beh rens posed

several questions to the District, prior to filing his Petition,

which apparently were left unanswered. It appears Mr. Behrens

did not pursue this inquiry until he served the District with

Interrogatories on May 29, 2003. Mr. Behrens did not r eview the

District’s “work file” after filing his Petition.

26. In his Proposed Final Order (PFO), Mr. Behrens

provided a detailed chronology and analysis of the factors he

considered that caused him to file prior challenges to District

action and his challeng e to the District’s intent to approve the

Has - Ben Groves WUP. He has mistrusted the District over time

and has had little faith that the District understands his

“unique circumstance” and will protect his well from adverse

impacts resulting from the issua nce of WUPs. See , e.g. , (T. 95 -

96, 98, 100.)

27. He notes in his PFO that it was not until the Has - Ben

Groves case that he “started to have trust in the District

staff’s reliance on regional well monitoring data (as its sole

source of cumulative impact analys is).” According to

Mr. Behrens, the District provided him with information during

discovery from which he derived reasonable assurances. He also

felt that based on his experience, he “did not contact the

permit reviewers in this matter because, from expe rience, he

knew he could not trust them to provide the necessary assurances

with a few comments over the telephone.” Yet, because of his

financial inability to hire experts, Mr. Behrens relies on the

expertise of the District’s hydrologists for assurance that his

well will not be adversely impacted. See , e.g. , (T. 112)

(District Exhibit 13, pp. 41 - 42, 55, 58 - 61.) Stated otherwise,

Mr. Behrens wanted the District staff to provide him with proof

of reasonable assurance and he filed the Petition and Amended

Petition because he felt he did not receive appropriate proof.

28. If this final hearing went forward, his intent was to

ask questions of the District’s hydrologists regarding many of

the documents in his possession and to ask “District staff,

under oath, a bout specific matters related to the protection of

his well and the intermediate aquifer, in general,” presumably

as he had done in the Basso and Boran cases, for example. See ,

e.g. (District Exhibit 13, p. 59 - 60.) Then, the ALJ, after

hearing all of evi dence, would decide whether reasonable

assurance was provided.

29. Prior to and after Mr. Behrens filed his Amended

Petition, the District maintained Regional Observation and

Monitoring Program (ROMP) wells that provide cumulative

monitoring information concer ning the Intermediate and Floridan

aquifer water levels throughout the District. ROMP well data

are available to the public upon request. (In response to a

question posed by Mr. Behrens during the final hearing, Mr.

Balser stated that ROMP well data do n ot give absolute assurance

or reflect “[e]xactly what is happening in the geology under

[Mr. Behrens] property.” Mr. Balser stated that he “would have

to do testing of [his] property. But this is the best guess we

can make looking at it from a regional v iew.”)

30. It is more than a fair inference that Mr. Behrens was

familiar with ROMP well data and their application in specific

cases as a result of his participation in prior administrative

cases. See pp. 4 - 5, supra . He did not request ROMP well data

avail able from the District prior to filing his Petition and

Amended Petition, although he asked for the quantity of

groundwater which was expected to be withdrawn from the

Intermediate and Floridan aquifers. See Conclusions of Law 48 -

50.

31. District WUP informat ion and other records are

available for public inspection, including the use and

permitting history of the water withdrawal challenged by

Mr. Behrens in this proceeding.

32. If Mr. Behrens had inquired of the District prior to

filing his Petition and Amended Petition, Mr. Behrens could have

learned that the well on the Has - Ben Groves property had been in

existence as early as the 1960’s for citrus irrigation, was

first permitted around 1974, had previously been authorized by

the District for withdrawals of as much as 77,000 gpd, was

expected to draw approximately 94 percent of its water from the

Upper Floridan aquifer, and there was no reasonable basis to

conclude that withdrawals of 31,100 gpd from the Has - Ben Groves

well would cause any adverse impact to his well, which draws

water from the Intermediate aquifer.

33. Stated otherwise, at the time he filed his Petition

and Amended Petition, Mr. Behrens had no reasonable factual

basis to allege that withdrawals of 31,100 gpd from the Has - Ben

Groves’ well, located approximately 16 miles from his well,

would have an adverse impact on his use of water from his well.

(An applicant for a WUP is required to provide, in part,

reasonable assurance that the water use “[w]ill not adversely

impact an existing legal withdrawa l.” Fla. Admin. Code R. 40D -

2.301(1)(i).)

34. On June 30, 2003, Mr. Behrens filed a “Notice of

Voluntary Dismissal” and responded, in part, to the District’s

Motion for Summary Recommended Order, but not the District’s

request for attorney’s fees and costs. Mr. Behrens stated that

he withdrew his Amended Petition because he obtained information

that he did not have when he filed his Amended Petition and that

addressed his concerns about impacts to his well. He claimed,

in part, that being informed of the D istrict’s plan to set

minimum levels for the Intermediate aquifer had allayed his

fears that he would be without an artesian free - flowing water

supply. However, the challenged WUP did not address or involve

the setting of minimum flow levels.

35. Based on the foregoing, Mr. Behrens did not make a

reasonable inquiry regarding the facts and applicable law.

Using an objective standard, an ordinary person standing in

Mr. Behrens’ shoes would not have prosecuted this claim if a

reasonable inquiry had been conducte d. Stated otherwise,

Mr. Behrens did not have a “reasonably clear legal

justification” to proceed based on his limited inquiry.

Mr. Behrens signed the Petition and Amended Petition for an

“improper purpose.”

The District’s Request for Sanctions

36. The Dis trict proved that its lawyers expended

approximately 98.8 hours in responding to the challenge brought

by Mr. Behrens and that the District incurred $426.25 in costs.

An hourly rate of $125.00 per hour is a reasonable rate. The

hours expended by District lawyers were reasonable. The costs

incurred were reasonable. The District requests that sanctions

be imposed in the amount of $12,350.00 for attorney's fees and

$426.25 in costs.

37. For the reasons more fully stated in the Conclusions

of Law, based on th e totality of the facts presented, the

imposition of a sanction against Mr. Behrens in the amount of

$500.00 (for costs and a small portion of fees) is appropriate.

CONCLUSIONS OF LAW

Jurisdiction

38. The Division of Administrative Hearings has

jurisdiction t o consider a motion filed pursuant to Section

120.569(2)(e), Florida Statutes, notwithstanding that a party,

here Mr. Behrens, files a notice of voluntary dismissal and the

files at DOAH are closed. See The Corporation of the President

of the Church of th e Jesus Christ of Latter Day Saints v. St.

Johns River Water Management District and the City of Cocoa , 13

F.A.L.R. 1014, 1016 - 1018 (DOAH Feb. 8, 1991); Cecile Joyner and

Debbie Manning v. Leon County and Department of Environmental

Protection , Case No. 00 - 4220 (DOAH Order April 4, 2001). See

also Procacci Commercial Realty, Inc. v. Dept. of Health and

Rehab. Services , 690 So. 2d 603, 606 (Fla. 1st DCA 1997)(ALJ has

the authority to issue a final order on a request for sanctions

pursuant to Section 120.569 (2)(e), Florida Statutes.)

Improper Purpose

39. Section 120.569(2)(e), Florida Statutes, provides that

signatures on pleadings, motions, or other papers certify that

the signatory has read the document and that “based upon

reasonable inquiry, it is not inter posed for any improper

purposes, such as to harass or to cause unnecessary delay, or

for frivolous purpose or needless increase in the cost of

litigation.” 2 Section 120.569(2)(e) authorizes the presiding

officer to impose an appropriate sanction, includin g a

reasonable attorney’s fee, for signatures which are in violation

of this subsection.

40. Section 120.569(2)(e), like its predecessor Section

120.57(1)(b)5, Florida Statutes (1995), “is designed to prevent

misuse of the administrative process. The statute creates

potential liability for costs and attorneys’ fees, which may

deter a party who would otherwise initiate a claim or defense

for the purpose of delay, to gain an economic advantage, or

simply to harass the opposing party.” Friends of Nassau County,

Inc. v. Nassau County , 752 So. 2d 42, 56 (Fla. 1st DCA

2000) (Padovano, J., dissenting).

41. An objective standard is used to determine whether a

party or attorney signed a pleading, motion or other paper for

an “improper purpose” and, if so, whether sanctio ns should be

imposed under Section 120.569(2)(e). The “determination must be

based on an objective evaluation of the circumstances existing

at the time the petition was filed.” Id. at 57. (The issue is

not whether the party would ultimately prevail on t he merits.)

As stated in Friends of Nassau County, Inc., 752 So. 2d at 49 -

51:

In the same vein, we stated in Procacci

Commercial Realty, inc. v. Department of

Health and Rehabilitative Services , 690 So.

2d 603 (Fla. 1st DCA 1997):

The use of an objec tive standard

creates a requirement to make

reasonable inquiry regarding pertinent

facts and applicable law. In the

absence of “direct evidence of the

party’s and counsel’s state of mind, we

must examine the circumstantial

evidence at hand and ask, object ively,

whether an ordinary person standing in

the party’s or counsel’s should would

have prosecuted the claim.”

Id. at 608 n. 9 (quoting Pelletier v.

Zweifel , 921 F. 2d 1465, 1515 (11th Cir.

1991)). See In re Sargent , 136 F. 3d 349,

352 (4th Cir. 1998) (“Put differently a

legal position violates Rule 11 if it ‘has

“absolutely no chance of success under the

existing precedent.”’) Brubaker v. City of

Richmond , 943 F. 2d 1363, 1373 (4th Cir.

1991) (quoting Cleveland Demolition Co. v.

Azcon Scrap Corp. , 82 7 F. 2d 984, 988 (4th

Cir. 1987)).”

* * *

Whether [predecessor to Section

120.569(2)(e)] section 120.57(1)(b) 5.,

Florida Statutes (1995), authorizes

sanctions for an initial petition in an

environmental case turns . . . on the

question whether the sign er could reasonably

have concluded that a justiciable

controversy existed under pertinent statutes

and regulations. If, after reasonable

inquiry, a person who reads, then signs, a

pleading had “reasonably clear legal

justification” to proceed, sanctions a re

inappropriate. Procacci , 690 So. 2d at 608

n. 9; Mercedes , 560 So. 2d at 278.

42. Further, in Mercedes Lighting and Electric Supply,

Inc. v. Department of General Services , 560 So. 2d 272, 276

(Fla. 1st DCA 1990), the court stated that case law construing

Rule 11 of the Federal Rules of Civil Procedure was useful in

applying a predecessor statute to Section 120.569(2)(e) and, in

this regard, the court stated:

The rule’s proscription of filing papers for

an improper purpose is designed to

discourage dilator y or abusive tactics and

to streamline the litigation process. The

rule is aimed at deterrence, not fee

shifting or compensating the prevailing

party. In short, the key to invoking rule

11 is the nature of the conduct of counsel

and the parties, not the outcome.

Schwarzer, “Sanctions Under the New Federal

Rule 11 -- A Closer Look,” 104 F.R.D. 181, 185

(1985).

A party seeking sanctions under rule 11

should give notice to the court and the

offending party promptly upon discovering a

basis to do so. Advis ory Committee Note to

Rule 11. If it may be fairly accomplished,

the court should then promptly punish the

transgression. In re Yagman , 796 F. 2d

1165, 1183 (9th Cir. 1986). See also , Ortho

Pharmaceutical v. Sona Distributors, Inc. ,

117 F.R.D. 170, 173 (S.D. Fla. 1986). If an

obvious and recognizable offending pleading

is filed, the court at the very least should

provide notice to the attorney or party that

rule 11 sanctions will be assessed at the

end of the trial if appropriate. The

purpose of the ru le -- deterring subsequent

abuses -- is not well served if an offending

pleading is fully litigated and the offender

is not punished until the trial is at an

end. See In re Yagman , 796 F. 2d at 1184 - 6;

and Ortho Pharmaceutical , 117 F.R.D. at 173.

One of th e basic tenets of rule 11

enforcement appears to be, not surprisingly,

that a party is required to take actions to

mitigate the amount of resources expended in

defense of the offending pleading or motion.

In his article, Schwarzer comments:

Normally, alt hough not necessarily

always, a claim or defense so meritless

as to warrant sanctions, should have

been susceptible to summary disposition

either in the process of narrowing

issues under Rule 16 or by motion.

Only in the rare case will the

offending party succeed in delaying

exposure of the baseless character of

its claim or defense until trial.

Permitting or encouraging the opposing

party to litigate a baseless action or

defense past the point at which it

could have been disposed of tends to

perpetuate t he waste and delay which

the rule is intended to eliminate. It

also undermines the mitigation

principle which should apply in the

imposition of sanctions, limiting

recovery to those expenses and fees

that were reasonably necessary to

resist the offending paper.

Schwarzer, 104 F.R.D. at 198.

Id. at 276 - 277.

43. The District has the burden to show, by a

preponderance of the evidence, that Mr. Behrens violated Section

120.569(2)(e) and that sanctions should be imposed. Friends of

Nassau County, Inc. , 752 S o. 2d at 52. See also

§ 120.57(1)(j), Fla. Stat.

Resolution of the Controversy

44. This case turns on whether Mr. Behrens made a

reasonable inquiry of the facts and law prior to signing and

filing the Petition and Amended Petition.

45. Prior to filing the Petit ion, Mr. Behrens inquired of

the District regarding the Has - Ben Groves WUP application. On

or about February 10, 2003, the District sent Mr. Behrens a copy

of the application. The application provided, in part, the name

of the applicant; the name of the applicant’s contact or

consultant; the location of the 40 - acre property and the

location of the well; the type of crops to be irrigated and

method; the depth of the casing and diameter; the pump capacity;

the mainline diameter; the withdrawal rate accordin g to “AGMOD”;

and the notation “existing.” See Findings of Fact 15 and 18.

Mr. Behrens also has access to the first names and initials of

persons who may have reviewed the application. Id. After

receiving a copy of the actual WUP issued by the District and

the Final Agency Action Transmittal Letter of January 27, 2003,

Mr. Behrens knew the quantities of water authorized for

withdrawal and knew that the WUP was issued most likely out of

the District’s Brooksville office, although other office

locations a re mentioned. Telephone numbers and street addresses

are listed for several offices including the Brooksville office

and the Bartow Service office.

46. Mr. Behrens alleged in his Petition that he received

notice of the District’s action on or about February 1 , 2003,

which meant that any petition had to be filed on or before

February 22, 2003. The Petition was filed on February 19, 2003,

but dismissed without prejudice.

47. On March 12, 2003, Mr. Behrens filed an Amended

Petition. However, there is no evidence th at Mr. Behrens made

any inquiry of the District after he filed the Petition and

before he filed the Amended Petition notwithstanding that he

received notice of the proposed District action on or about

February 1, 2003, and was aware of the Has - Ben Groves

a pplication as of January 20, 2003. See Finding of Fact 10.

Thus, Mr. Behrens had approximately 38 days to inquire of the

District regarding his concerns before he signed and filed the

Amended Petition after he received notice of the agency action.

(He h ad 21 days from receipt of the District’s notice of final

agency action to file a petition.)

48. Mr. Behrens is no stranger to administrative

proceedings involving challenges to the District’s proposed

issuance of WUPs. See DeSoto Citizens Against Pollution , Inc.

v. Farmland Hydro Limited Partnership, Frank T. Basso, Jr.,

Redland Growers Exchange, Inc., and Southwest Florida Water

Management District , Case No. 02 - 0232, 2002 WL 1592349 (DOAH

June 3, 2002; SWFWMD June 25, 2002); Alan Behrens and DeSoto

Citizen s Against Pollution, Inc. v. Michael J. Boran and

Southwest Florida Water Management District , Case No. 02 - 0282,

2002 WL 31125125 (DOAH July 29, 2002; SWFWMD Aug. 27, 2002);

Alan R. Behrens, et al. v. Consolidated Minerals, Inc. and

Southwest Florida Water Management District, et al. , Case Nos.

92 - 0953 - 92 - 0957, 1993 WL 944120 (DOAH April 20, 1993; SWFWMD

Nov. 30, 1994). Mr. Behrens prevailed in the Consolidated case,

but not in the Basso and Boran cases.

49. In Basso , Mr. Behrens represented DeSoto Citizens

Against Pollution (DCAP), a not - for - profit corporation, in which

he served as president. Basso proposed to irrigate 140 acres at

454,000 gpd on an annual basis and 1,241,000 gpd, as a peak

month quantity. The Basso well was located approximately 18 - 20

mi les from Mr. Behrens’ well. The concept of ROMP wells is

discussed in detail in the Recommended Order. DCAP did not

prove its standing. Also, the evidence demonstrated “that the

propose water use will not adversely impact Behrens’ well,”

notwithstanding Mr. Behrens claim to the contrary. DeSoto

Citizens Against Pollution, Inc. v. Farmland Hydro Limited

Partnership, Frank T. Basso, Jr., Redland Growers Exchange,

Inc., and Southwest Florida Water Management District , 2002 WL

1592349, at *2, 4, 6 - 7, 10 - 11 and 14.

50. In Boran , Mr. Behrens was a named Petitioner and

appeared pro se . DCAP was also a Petitioner, but voluntarily

dismissed its Petition. The Boran property is a little over

1,000 acres in size. Boran proposed a modification to his

existing WUP and requested to increase his annual average daily

quantity by 175,000 gpd, and increase the peak month daily

quantity by 423,900 gpd. With the proposed increase, the new

annual average daily quantity was expected to be 1,488,000 gpd,

and the new peak month daily quantity was expected to be

3,600,900 gpd. The Boran well was located approximately four

miles from Mr. Behrens’ well. ROMP wells are discussed in the

Recommended Order. The greater weight of the evidence did not

support Mr. Behrens’ view that his well would be adversely

impacted by the Boran’s withdrawal of the water as modified.

Also, Mr. Behrens did not prove his standing. Alan Behrens and

DeSoto Citizens Against Pollution, Inc. v. Michael J. Boran and

Southwest Florida Water Management Distri ct , 2002 WL 31125125,

at *3, 10, and 17. (Boran’s request, joined in by the District,

for attorney’s fees and costs pursuant to Sections 120.569(2)(e)

and 120.595(1), Florida Statutes, was denied.)

51. In this proceeding, the weight of the evidence

indica tes that Mr. Behrens made a minimal attempt to gather

information from the District, notwithstanding his request to be

informed of the disposition of the Has - Ben Groves WUP

application and other applications. His January 31, 2003,

inquiry raised some of h is concerns, but he did nothing to

follow up on this inquiry especially after the District sent him

a copy of the Has - Ben Groves application and Evaluation

Worksheet.

52. Although Mr. Behrens appeared pro se in this

proceeding, he has experience in dealing wit h and understanding

the issues presented. His participation in the cases referenced

herein attests to this fact.

53. Nevertheless, after receiving the Has - Ben Groves WUP

application, he did not speak with anyone from the District

regarding his concerns or rev iew the “work file” or request any

other public records from the District including ROMP well or

other data. The documents and information that Mr. Behrens

relied on to prepare and sign his Petition and Amended Petition

support his concerns about maintain ing the free - flowing nature

of his well, but they do not support his assertion that his well

would be adversely affected by the Has - Ben Groves water

withdrawal or that reasonable assurance had not been provided by

Has - Ben Groves. The documents and informa tion possessed by

Mr. Behrens alone would not have led an ordinary person to

reasonably conclude that a justiciable controversy existed in

this matter.

54. Mr. Behrens asserted, in part, that he did not trust

District staff to provide him with reasonable ass urance and,

therefore, he did not feel that discussing his concerns with

District staff would comfort him. On the other hand, he

asserted that he relied on District staff to create and then

provide him with modeling and drawdown contours, and then

expecte d to rely on his examination of District staff during an

administrative hearing to prove his case, or, at the very least,

to receive reasonable assurance. This was not a reasonable

rationale for not conducting a reasonable inquiry prior to

signing and fil ing the Petition and Amended Petition.

55. To fulfill the obligation to make a reasonable

inquiry, a person must investigate the facts, examine the law,

and then decide if a pleading is justified. Cleveland

Demolition Co., Inc. v. Azcon Scrap Corp. , 827 F.2d 984, 988

(4th Cir. 1987).

56. The District, in issuing its notice of agency action,

determined that Has - Ben Groves provided reasonable assurance.

(An applicant for a WUP must provide reasonable assurance that

several statutory and rule requirements are sa tisfied. See ,

e.g. , § 373.223, Fla. Stat.; Fla. Admin. Code R. 40D - 2.301.

But, absolute assurances are not required. See Basso , 2002 WL

1592349, at *12.) This preliminary action was subject to

challenge and a de novo hearing (if there were disputed i ssues

of material fact) because there is no presumption of correctness

that attached to the District’s preliminary agency action.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778, 785, 789 (Fla. 1st DCA 1981).

57. Mr. Behrens had information at his disposal when he

signed the Petition and Amended Petition regarding the effects

of water uses in his geographic area and associated problems.

See , e.g. , Findings of Fact 23 and 26. It was incumbent on

Mr. Behrens to conduct a reasonable inquiry into the facts and

law and to decide whether the signing of the Petition, and

ultimately the Amended Petition, was justified regarding the

Has - Ben Groves WUP. Again, the focus of his attention and

inquiry should have been on the Has - Ben Groves WU P, not his

general concern with water withdrawal.

58. Mr. Behrens subjective belief in the merits of his

Petition and Amended Petition is insufficient to overcome his

lack of a reasonable investigation to ensure that his objections

to the Has - Ben Groves WUP ap plication were supported by the

facts and the law. Regrettably, it is concluded that

Mr. Behrens signed the Petition and Amended Petition for an

improper purpose. Notwithstanding this conclusion, the sanction

requested by the District is not appropriate.

59. The District is correct that relevant information was

available to Mr. Behrens when he filed his Petition and Amended

Petition. This same information was available to the District.

Also, the District participated fully in the Basso and Boran

cases and w as intimately familiar with the arguments made by

Mr. Behrens and the limitation of his proof in these cases.

(Mr. Behrens testified in both cases but called no expert

witnesses of his own. Rather, he relied on examination of

District experts.)

60. Armed wit h superior knowledge, the District should

have raised the “improper purpose” issue sooner in this

proceeding, thereby alerting Mr. Behrens to the potential

consequences of proceeding further. Mercedes , 560 So. 2d at

276 - 277, 279 (duty to mitigate).

61. Neve rtheless, the District proved that Mr. Behrens

signed the Petition and Amended Petition for an “improper

purpose.” A sanction in the amount of $500.00 is appropriate.

See Findings of Fact 35 and 37. (Section 120.569(2)(e), Florida

Statutes, like Rule 11 , Florida Rules of Civil Procedure, “is

aimed at deterrence, not fee shifting or compensating the

prevailing party.” Department of Health & Rehabilitative

Services v. S.G. , 613 So. 2d 1380, 1384 (Fla. 1st DCA

1993)(quoting Mercedes , 560 So. 2d at 276).)

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusion of

Law, it is

ORDERED that Alan R. Behrens filed his Petition and Amended

Petition for Formal Hearing for an “improper purpose” and should

be sanctioned in the amount of $500.00. This a mount shall be

paid to the Southwest Florida Water Management District within

45 days after this Final Order is filed with the Clerk of the

Division of Administrative Hearings.

DONE AND ORDERED this 25th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

__________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of February, 2004.

ENDNOTES

1 / Chapter 119, Florida Statutes, “provides a right of access to

inspect and copy an agency’s existing public record s; it does

not mandate that an agency create new records in order to

accommodate a request for information from the agency,” or “give

out information from the records of his or her office.” 22

Government - In - The - Sunshine Manual 105 (2000)(Emphasis in

origi nal)(Citation omitted.) See also In re Report of the

Supreme Court Workgroup on Public Records , 825 So. 2d 889, 898

(Fla. 2002)(the custodian of judicial records “is required to

provide access to or copies of records but is not required

either to provide information from records or to create new

records in response to a request.” (Citations omitted.))

Chapter 119, Florida Statutes, did not require the District to

create the “drawdown contours” requested by Mr. Behrens.

Conversely, District staff undertak es groundwater impact

analysis modeling and preparation of drawdown contours when

annual average quantities of 100,000 gpd or greater are

requested, or when evaluation of the proposed water use

otherwise demonstrates a need to undertake such analysis for

r easonable assurance purposes. The District explained that

their experience has demonstrated that quantities below this

threshold have minimal - to - no - impact upon the water resource and

are indistinguishable from naturally occurring or background

fluctuation . Here, District staff felt that because the

requested withdrawal was 31,100 gpd and no adverse impacts

expected, groundwater modeling or the preparation of drawdown

contours were not needed as part of the initial evaluation of

the Has - Ben Groves WUP appl ication. Further, groundwater

modeling is time - consuming, as a District geologist or

hydrologist must expend approximately four to eight hours to

complete the modeling process. An additional two hours of

professional staff time is generally required to c onvert

groundwater - modeling results into a graphical representation of

drawdown contours. Nevertheless, after Mr. Behrens’ filed his

challenge, Mr. Phillippi undertook groundwater modeling and

prepared drawdown contours for the Has - Ben Groves withdrawals of

water after the Amended Petition was filed.

2 / “A frivolous purpose is one which is of little significance

or importance in the context of the goal of administrative

proceedings.” Burke v. Harbor Estates Associates, Inc. , 591 So.

2d 1034, 1037 n.1 (F la. 1st DCA 1991)(Citation omitted.)

COPIES FURNISHED :

Alan R. Behrens

4070 Southwest Armadillo Trail

Arcadia, Florida 34266

Ray Bentley

Has - Ben Groves

Post Office Box 747

Winter Haven, Florida 33882 - 0747

Martha A. Moore, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

E. D. “Sonny” Vergara, Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the ori ginal notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District whe re the party resides. The notice of

appeal must be filed within 30 days of rendition of this Final

Order.