05-004644F Spanish Oaks Of Central Florida, Llc vs. Lake Region Audubon Society, Inc.
 Status: Closed
DOAH Final Order on Friday, July 7, 2006.


View Dockets  
Summary: The grounds for sanctions under Sections 57.105, 120.569(2)(e), and 120.595(1), Florida Statutes, were not proven after the failed challenge to the Environmental Resource Permit.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SPANISH OAKS OF CENTRAL )

13FLORIDA, LLC, )

16)

17Petitioner, )

19)

20vs. ) Case No. 05 - 4644F

27)

28LAKE REGION AUDUBON SOCIETY, )

33INC., )

35)

36Respondent. )

38)

39FINAL ORDER

41On April 11, 2006 , a final administrative hearing wa s held

52in this case in Tallahassee , Florida, before J. Lawrence

61Johnston, Administrative Law Judge, Division of Administrative

68Hearings.

69APPEARANCES

70For Petitioner: Martha Harrell Chumbl er, Esquire

77Carlton Fields, P.A.

80Post Office Drawer 190

84215 South Monroe Street, Suite 500

90Tallahassee, Florida 32302 - 0190

95and

96Benjamin W. Hardin, Jr., E squire

102Hardin & Associates, P.A.

106Post Office Box 3604

110Lakeland, Florida 33802 - 3604

115For Respondent: Jeff A. Albinson, Esquire

121Marshall, Dennehey, Warner,

124Coleman & Goggin

127201 East Kennedy Boulevard, Suite 1100

133Tampa, Florida 33602 - 5827

138and

139Jack Wolf, Esquire

142Jack Wolf, P.A.

1452028 Shepherd Road, Number 350

150Mulberry, Florida 33860 - 8699

155STATEMENT OF THE ISSUE

159The issue in this case is whether sanctions, including

168attorney 's fees and costs, should be assessed against

177Respondent, the Lake Region Audubon Society, Inc. (LRAS) , and

186awarded to Petitioner, Spanish Oaks of Central Florida, LLC

195(Spanish Oaks), under Sections 57.105, 120.569(2)(e), and

202120.595(1) , Florida Statutes, 1 after LRAS unsuccessfully

209challenged the Southwest Florida Water Management District 's

217(SWFWMD 's ) issuance of Environmental Resource Permit (ERP)

226Number 44025789.001 to Spanish Oaks .

232PRELIMINARY STATEMENT

234On December 20, 2005 , Spanish Oaks filed with DOAH a

244Petiti on for Costs and Attorneys' Fees under Sections 57.105,

25412 0.569(2)(e), and 120.595(1) (Petition) . DOAH noted that the

264case number was "(formerly 05 - 2606)(Closed)" and assigned a new

275DOAH Case number, 05 - 4644F. Counsel appeared for LRAS and moved

287for an e xtension of time to file a response to the Petition. A

301telephonic pre - hearing conference was held on January 17, 2006,

312after which Spanish Oaks was granted leave to amend (actually,

322to substitute an exhibit) , which mooted parts of a Motion to

333Strike and/o r Dismiss Petition filed by LRAS , and LRAS was given

345until January 23, 2006, to file a response to the "amended"

356Petition. SWFWMD indicated during the pre - hearing conference

365that , while a party to Case 05 - 2606, it did not intend to

379participate in further proceedings in Case 06 - 4644F .

389Another telephonic pre - hearing conference was scheduled for

398February 8, 2006, at which time the parties agreed to have

409entitlement to costs and attorneys' fees determined on oral

418argument and the evidentiary record from Case 05 - 2606, and to

430have the amounts determined only if there was entitlement. A

440telephonic final hearing for the oral argument was scheduled for

450March 16, 2006. Spanish Oaks was required to present the

460evidentiary record from DOAH Case 05 - 2606, which had b een

472transmitted to SWFWMD, for use in this case.

480On March 3, 2006, additional counsel appeared for LRAS,

489which moved for a continuance of the final hearing, which was

500granted over objection. T he final hearing was re - scheduled for

512April 11, 2006, in Tall ahassee, with an option for counsel to

524participate by telephone. During the final hearing, oral

532argument was presented, including an argument presented for the

541first time by counsel for LRAS that Spanish Oaks waived the

552right to seek sanctions by only req uesting a reservation of

563jurisdiction and failing to request findings in Case 05 - 2606 on

575the prerequisite s for sanctions . After the final hearing, the

586parties were given until April 21, 2006, to file proposed

596orders. The post - hearing submissions have bee n considered in

607the preparation of this Final Order.

613FINDINGS OF FACT

616LRAS' Amended Petition

6191 . SWFWMD issued ERP 44025789.001 to Spanish Oaks on

629April 27, 2004.

6322 . On May 11, 2005, Donna Stark , a member of LRAS, made a

646presentation to the LRAS boar d of directors asserting that

656Spanish Oaks was using one - to - three sinkholes to collect runoff

669water, instead of digging retention ponds, contrary to legal

678requirements and was polluting the underlying aquifer. She

686asked LRAS to consider filing an administ rative challenge to the

697ERP.

6983 . After the presentation, the LRAS board decided that its

709five - member Steering Committee -- which took the place of a

721president, rotated responsibility for conducting board meetings ,

728and functioned like an executive committee -- would continue to

738investigate and make a decision as to what role LRAS should have

750in the future. The Steering Committee reviewed the information

759presented by Starks, decided to file a challenge, and invited

769Starks to help draft a Petition for Administrative Proceeding

778(LRAS Petition) , which was signed by four members of the

788Steering Committee between May 31 and June 2, 2005 , and was

799filed with SWFWMD on June 6, 2005.

8064 . Because the timeliness of the LRAS Petition could not

817be ascertained from the all egations, SWFWD dismissed the

826Petition without prejudice. On July 11, 2005, an Amended

835Petition was filed, clarifying that LRAS was orally informed

844about the Spanish Oaks ERP by one of its members, later

855identified as Donna Stark, on May 10, 2005. The Am ended

866Petition was signed by LRAS Steering Committee/Acting President

874Carrie Plair on July 6, 2005 , and filed with SWFWMD, which

885determined that the Amended Petition was timely filed and

894substantially complied with the requirements for a petition and

903refer red it to DOAH , where it was given DOAH case number 05 - 2606

918and scheduled for a final hearing on September 22 - 23, 2005 .

9315 . The Amended Petition alleged in ¶5 :

940The following evidence of the karst nature

947of the site is submitted:

952i) On February 3, 20 05, in a meeting of

962Donna Stark, a member of [LRAS], with

969Sherry Windsor and biologist Jeff Whealton,

975the District personnel called in their

981geologist Tom Jackson for his professional

987opinion on this issue. Based on his

994training in karst geology and years of field

1002observation at this site (prior to current

1009ownership), Mr. Jackson referred to this

1015structure as a fracture (an elongate

1021sinkhole).

1022ii) Another individual who has graduate

1028training in karst topography and who has

1035studied this site for several years also has

1043informed [LRAS] that this sinkhole has a

1050vertical pipe and was an active "surface - to -

1060ground water system" (Affidavit of

1065Charles Cook - Ex. 8)

1070iii) Petitioners have consulted

1074professionals who specialize in geological

1079and geotechnical en gineering and who are

1086well recognized for their work in the state.

1094Based on the available information they have

1101expressed concern and have indicated that a

1108thorough and detailed investigation

1112consisting of geophysical and geotechnical

1117methods should be p erformed to address the

1125concerns of this Petition.

1129iv) Donna Stark, a member of [LRAS],

1136observed first - hand the sinkhole in the

1144southeast portion of Spanish Oaks collapsed

1150during construction of the retention pond

1156(perhaps due to heavy equipment or due t o

1165heavy rains of the fall 2004 hurricanes).

1172Refer to Affidavit - Ex. 9.

1178Paragraph 5. iv) of the Amended Petition continued and asserted

1188that “[o]n November 13, 2004, LRAS member Donna Stark was

1198informed by a man who had worked on the Spanish Oaks site [later

1211identified as George Wilt] that the retention ponds were 30 feet

1222deep.” It also asserted that LRAS member Donna Stark observed

1232firsthand a sinkhole collapse that allegedly occurred in the

1241southeast portion of Spanish Oaks site during construction o f

1251Retention Pond A. The Amended Petition alleged that on

1260January 25, 2005, Donna Stark, along with a state employee

1270( later identified as Timothy King), observed a "very large cone -

1282shaped depression with smooth steeply - sloping sides – so steep

1293that Donna S tark was nervous that the front - end loader driving

1306up and down the slopes could end up in the aquifer if he lost

1320traction in the loose unconsolidated sands. In the center of

1330the depression was a lake perhaps 50 feet in diameter." The

1341Amended Petition fur ther alleged that “Donna Stark judged the

1351distance from the top of the ground surface to the water surface

1363to be about 15 feet.” It also asserted: "On February 4, 2005,

1375Donna Stark went to the District office in Bartow to discuss

1386this issue with the engi neer in charge of the project,

1397Sherry Windsor, biologist Jeff Whealton and geologist Tom

1405Jackson. The engineering worksheet in the file shows a required

1415depth of 6.5 feet from pond bottom elevation (136.5') to top of

1427bank elevation (143.0')[.] It was sug gested by one of the

1438District scientists that the retention pond had collapsed during

1447construction to create the observed depth. This is the only

1457logical explanation in the opinion of Petitioner since [that

1466would be a violation and grounds for revocation, as well very

1477expensive, and would serve no useful purpose]." It also alleged

1487that, "[w]hen Donna Stark returned on February 10, 2005, the

1497area had been filled with sand to the required elevation and was

1509flat - bottomed."

15126 . On the clay core issue, parag raph 5. iv) of the Amended

1526Petition alleged: "When Donna Stark spoke to William Hartmann,

1535[SWFWMD] Surface Waters Regulation Manager, on April 21, 2005 he

1545indicated that he had received no phone call from Permittee and

1556that District staff had not inspecte d the clay core

1566construction. At that time, the 'As - Built' inspection had been

1577requested." The "Concise Statement of Ultimate Facts Alleged"

1585included the statement: "Permittee also did not inform the

1594District, as required, when (and if) a clay core was constructed

1605in the berms. Serious impacts on adjacent property may be

1615expected if the clay cores were not properly constructed."

16247 . The Amended Petition in ¶6 alleged the following as

1635disputed issues of material fact: the Permit allows

1643construction of a retention pond in a sinkhole in the southeast

1654portion of the site; construction of a retention pond in a

1665sinkhole creates a danger to public health and safety; Spanish

1675Oaks failed to notify SWFWMD that it was beginning construction

1685of the clay cores of certain berms surrounding the retention

1695ponds, as required by a permit condition so that SWFWMD could

1706inspect during the construction ; and Spanish Oaks failed to

1715follow SWFWMD rules by neglecting to provide for permanent

1724erosion control measures.

17278 . LRA S’ Amended Petition asserted in ¶7. ii) that the

1739Spanish Oaks development violated Florida Administrative Code

1746Rule 62 - 522.300(1) and (3), 2 which provided in pertinent part:

1758(1) . . . [N]o installation shall directly

1766or indirectly discharge into ground w ater

1773any contaminant that causes a violation in

1780the . . . criteria for receiving ground

1788water as established in Chapter 62 - 520,

1796F.A.C., except within a zone of discharge

1803established by permit or rule pursuant to

1810this chapter.

1812* * *

1815(3) Other disch arges through wells or

1822sinkholes that allow direct contact with

1828Class G - I, Class F - I, or Class G - II ground

1842water shall not be allowed a zone of

1850discharge.

1851It was alleged that this violation required reversal or

1860modificatio n of the proposed agency action .

18689 . It was later revealed that the profession als referred

1879to in paragraph 5. iii) of the Amended Petition included three

1890engineers, one named Larry Madrid , and "many, many professionals

1899of different government agencies." The attached " affidavit "

1906(actu ally, an unsworn statement) of Charles Cook set out the

1917basis of his knowledge of karst geology in general, and the

1928Spanish Oaks site in particular, and his "conclusion that three

1938depressional features existed on the subject parcel and I

1947personally explore d a subterrani an [sic] void in a depressional

1958sinkhole located in the southern part of the parcel in question,

1969and believe it was an active recharge conduit connecting with

1979subsurface aquifers." The attached "affidavit" (actually, an

1986unsworn statement) of Donna Stark included the statement: "I

1995hereby certify that the information submitted to [LRAS]

2003concerning Spanish Oaks is true and accurate to the best of my

2015knowledge." It also repeated some of the allegations in the

2025Amended Petition and gave her "qual ifying credentials for the

2035above observations and interpretations" including :

2041Ph.D. in Ecology from the University of

2048Minnesota - 1971 with thesis title

"2054Paleolimnology of Elk Lake, Itasca State

2060Park, Northwestern Minnesota"

2063Post - doctoral Research at L imnological

2070Research Center, University of Minnesota

20751972 - 1973 - published 1976

2081Science teaching at Southeastern College in

2087Lakeland 1973 - 1974. Full Professor.

2093The Amended Petition also was buttressed with citations cited to

2103several scientific public ations about karst geology, sinkholes ,

2111and stormwater retention ponds .

21161 0 . It is clear that LRAS relied heavily on Donna Stark

2129and her educational background and scientific knowledge, her

2137alleged personal knowledge, and her alleged discussions with

2145vari ous professionals, including District personnel. Starks

2152actually drafted almost all of the Petition and Amended Petition

2162for the LRAS Steering Committee .

2168Proceedings in Case 05 - 2606

21741 1 . LRAS was represented in Case 05 - 2606 by Paul Anderson,

2188a member of LRAS' Steering Committee .

21951 2 . By letter filed July 27, 2005, LRAS requested that the

2208ALJ enter an order requiring a halt to all work on Spanish Oaks.

22211 3 . On August 1, 2005, Spanish Oaks filed a Motion to

2234Dismiss, or in the Alternative, Motion to St rike. The grounds

2245were that there was no jurisdiction to enforce compliance with

2255permit conditions, which the prayer for relief in the Amended

2265Petition seemed to seek , and that allegations of non - compliance

2276with ERP conditions should be stricken as irrele vant to issuance

2287of the ERP .

22911 4 . Discover y was initiated in Case 05 - 2606 . In addition,

2306in response to concerns expressed in the Amended Petition,

2315Spanish Oaks hired Sonny Gulati , a professional engineer and

2324expert in the field, to undertake a sinkhole investigation on

2334the Spanish Oaks property using ground penetrating radar (GPR)

2343and standard penetration testing (SPT) . Mr. Gulati concluded

2352that there were no active sinkholes on the site and prepared a

2364report to that effect. Spanish Oaks presented the report to

2374LRAS in August 2005; Spanish Oaks also served LRAS with a Motion

2386for Attorney's Fees under Sections 57.105, 120.569(2)(e), and

2394120.595(1)(a - e), Florida St atutes (Motion) , and informed LRAS

2404th at Spanish Oaks would file the M otion within 21 days if LRAS

2418did not drop its opposition to the ERP. The Motion specifically

2429alleged the impropriety of the sinkhole and clay core issues

2439raised in the Amended Petition but did not mention the erosion

2450control issue.

24521 5 . LRAS' first attempt at discovery was defective in that

2464its interrogatories and requests for production were directed to

2473witness Tom Jackson instead of SWFWMD. SWFWMD moved for a

2483protective order, which was granted on August 17, 2005. LRAS

2493promptly served interrogatories and requests for pro duction on

2502SWFWMD and Spanish Oaks.

25061 6 . Also on August 17, 2005 , an Order was entered

2518explaining to LRAS the procedure for obtaining qualified non -

2528attorney representation, and an Order on Motion to Dismiss or

2538Strike and Request for Stop - Work Order was e ntered . The latter

2552Order recognized that the peculiar procedural posture of the

2561case ( namely, that LRAS' Amended Petition was timely even though

2572it challenged an ERP purportedly issued in April 2004)

2581contributed to the incorrect wording of LRAS' prayer fo r relief;

2592placed a gloss on LRAS' prayer for relief as seeking denial, not

2604revocation , of the ERP ; and declined to strike allegations of

2614non - compliance with the ERP, as they could be relevant to LRAS'

2627challenge to the provision of reasonable assurance by S panish

2637Oaks. The stop - work request was denied for lack of jurisdiction

2649to give injunctive relief in an enforcement matter .

2658( Unbeknownst to the ALJ, o n July 22, 2005, SWFWMD approved the

2671transfer of the ERP to the operation phase, with responsibility

2681for future operation and maintenance transferred to the Spanish

2690Oaks of Central Florida Homeowners Association (HOA) ,

2697notwithstanding the requirement of Section 120.569(2)(a),

2703Florida Statutes, that SWFWMD take no further action on the ERP

2714except as a party li tigant.)

27201 7 . By letter dated August 26, 2005, LRAS requested that

2732Spanish Oaks allow its retained engineer to enter, inspect, and

2742conduct investigations on the Spanish Oaks site. Spanish Oaks

2751denied this request .

27551 8 . At the end of August and in earl y September 2005, the

2770parties exchanged hearing exhibit s and witness lists in

2779accordance with the Order of Pre - Hearing Instructions.

278819 . When LRAS followed the procedure for obtaining

2797approval of qualified, non - attorney representation by

2805Mr. Anderson, Spanish Oaks objected to Mr. Anderson's

2813qualifications. On September 7, 2005, an Order Authorizing

2821Qualified Representation was entered. It recognized the short -

2830comings in Mr. Anderson's qualifications, and the possibility

2838that representation by a Florida attorney would benefit LRAS and

2848make the proceeding fairer to all (including LRAS) . Also o n

2860September 7, 2005, Spanish Oaks filed its Motion for Attorney's

2870Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a - e),

2879Florida Statutes. Cf. Finding 14 , supra .

288620 . On September 12, 2005, LRAS filed a request for

2897permission to add Mr. Madrid to its witness list. On

2907September 14, 2005, an Order Denying, without Prejudice, Request

2916to Add Witness was entered because the request did not indicate

2927whether L RAS had conferred with the other parties.

29362 1 . On September 15, 2005, Spanish Oaks filed a Response

2948in Opposition to Request for Entry upon Land for Inspection and

2959Other Purposes and Motion for Protective Order. Spanish Oaks

2968asserted that it no longer h ad control over the retention ponds,

2980which were controlled by the HOA, and that home construction was

2991in progress, making timing and coordination of the request

3000problematic, if not impossible. Spanish Oaks also asserted

3008that, if the inspections were allow ed, multiple issues would

3018have to be addressed, including potential liability and

3026insurance issues, and that more detail would be required to

3036ensure that LRAS' inspection, which could include drilling

3044sample borings in the retention ponds, would not compro mise the

3055integrity of the stormwater system and retention ponds.

30632 2 . By letter dated September 19, 2005, LRAS requested

3074that Spanish Oaks agree to the addition of Mr. Madrid as a

3086witness. By another letter dated September 19, 2005, LRAS

3095requested that Spanish Oaks produce back - up documentation

3104supporting Mr. Gulati's sinkhole investigation report , including

3111site maps of GPR test locations, the uninterpreted GPR raw data,

3122the GPR strip charts, as well as the actual SPT soil borings,

3134because LRAS' retaine d expert geologist , Marc Hurst, had advised

3144LRAS that the information was necessary for him to determine the

3155reliability of Mr. Gulati's report and conclusions.

31622 3 . A telephone hearing was held on September 20, 2005, on

3175LRAS' request s to add Mr. Madrid to its witness list, for

3187Mr. Hurst to be allowed entry on the Spanish Oaks site to

3199inspect and investigate, and for Mr. Hurst to be allowed to

3210review the back - up documentation and SPT borings supporting

3220Mr. Gulati's report. No party ever requested a conti nuance of

3231the final hearing (set to begin in just two days), and t he

3244request to add Mr. Madrid as a witness was denied as too late .

3258It is not known what Mr. Madrid's testimony would have been.

3269LRAS dropped its request for entry on land in the face of t he

3283opposing arguments from Spanish Oaks . As to the back - up

3295documentation supporting Mr. Gulati's report, Mr. Gulati was

3303required to bring the documents to the final hearing but Spanish

3314Oaks was not required to produce the SPT borings, which were

3325represented to be numerous and a large quantity of soil.

33352 4 . Immediately before the start of the final hearing,

3346Spanish Oaks filed both a Motion in Limine, which was denied,

3357and a Motion for Summary Recommended Order. Ruling on the

3367pending motions was deferred . Spanish Oaks' Motion for Summary

3377Recommended Order Motion was based on arguments that LRAS'

3386filing of the Amended Petition was "ultra vires" and that LRAS

3397had no standing. These issues (which ultimately were resolved

3406in favor of LRAS and against Spanish O aks) were the focus of

3419much of the effort of Spanish Oaks in discovery and in the final

3432hearing , as reflected in the Recommended Order in the case .

3443Recommended and Final Orders in Case 05 - 2606

34522 5 . After the final hearing, Spanish Oaks filed a proposed

3464recommended order suggesting that jurisdiction to rule on its

3473Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e),

3481and 120.595(1)(a - e), Florida Statutes, should be retained.

34902 6 . A Recommended Order that ERP 44025789.001 be issued to

3502Spanish O aks was entered in Case 05 - 2606 on November 10, 2005.

3516Jurisdiction wa s retained to consider Spanish Oaks’ Motion for

3526Attorney's Fees under Sections 57.105, 120.569(2)(e), and

3533120.595(1)(a - e), if renewed within 30 days after issuance of the

3545final order. O n November 30, 2006, SWFWMD entered a Final Order

3557adopting the Recommended Order in its entirety and issuing ERP

356744025789.001 to Spanish Oak s.

35722 7 . As to the ERP criteria, t he Recommend ed Order found in

3587pertinent part :

3590Alleged Sinkholes

3592* * *

359559. Marc Hurst, a geologist who

3601testified for LRAS, opined that Mr. Gulati’s

3608sinkhole investigation was insufficient to

3613demonstrate whether or not the Spanish Oaks

3620retention ponds were constructed over

3625sinkholes. 11 However, Mr. Hurst offered no

3632opini on as to whether the retention ponds

3640are located over active sinkholes. Nor did

3647Mr. Hurst specifically disagree with

3652Mr. Gulati’s conclusion that the Spanish

3658Oaks retention ponds have not been impacted

3665by active sinkholes. 12 To the contrary, Mr.

3673Hurst admitted that the retention ponds were

3680holding water on the day that he observed

3688them -- indicating that to him that the ponds

3697were not acting as a strong conduit to the

3706aquifer. Mr. Gulati also noted the

3712significance of the presence of water in the

3720ponds, stating that, if there were active

3727sinkholes in the ponds, they would not hold

3735water. 13

3737EN. 11 - Notably, Mr. Hurst has

3744only participated in four sinkhole

3749investigations and reviewed the

3753reports of approximately six other

3758such investigations, while Mr.

3762Gu lati has conducted between 700

3768and 800 during the past ten years.

3775EN. 12 - The anecdotal testimony

3781of Charles Cook and Tom Jackson

3787regarding their observations of

3791depressions and “cracks” at the

3796site several years earlier did not

3802support a finding that there is an

3809active sinkhole. Mr. Jackson, a

3814geologist for SWFWMD, was not

3819willing to draw such a conclusion.

3825EN. 13 - Mr. Gulati acknowledged

3831that, in areas where the aquifer

3837is under artesian pressure, an

3842active sinkhole will hold water.

3847However, that aquifer condition

3851does not exist in the vicinity of

3858Spanish Oaks. T. 358.

386260. The only suggestion of any sinkhole -

3870related damage to the retention ponds came

3877from Donna Stark, who testified that George

3884Wilt -- a heavy equipment operator at the site

3893incorrectly identified by Ms. Stark as “an

3900employee of Spanish Oaks” -- told her that

3908there had been a sinkhole collapse during

3915the excavation of Pond A. This hearsay

3922testimony was directly contradicted by Mr.

3928Wilt himself, who testified that he made no

3936such st atement.

393961. Despite the allegation in LRAS’

3945petition regarding observations of collapse

3950of sinkhole by Donna Stark, Ms. Stark

3957herself admitted at hearing that she did not

3965witness any actual collapse. Rather, she

3971testified that, on January 25, 2005 , she saw

3979what she believed to be the aftermath of a

3988sinkhole collapse.

399062. Stark may have been confused by the

3998amount of excavated material being stored on

4005the ground surface around the pond. 43,906

4013cubic yards of dirt was excavated from Pond

4021A al one and was stacked to a height of 8 - 10

4034feet higher than the natural ground

4040elevation.

404163. Others who observed the site on

4048January 25, 2005, saw no evidence of a

4056sinkhole collapse. Tim King, a Florida Fish

4063and Wildlife Conservation Commission

4067employee who was with Ms. Stark on

4074January 25, 2005, merely reported seeing

4080pond excavation in process. Laura Howe, a

4087SWFWMD employee who inspected the site on

4094that date, observed that “[i]t appears depth

4101of ponds are [p]robably close to permitted

4108depth.”

410964. Moreover, Ms. Stark admits that, on

4116February 10, 2005, she observed the ponds to

4124be “[s]even and a half feet, or six and a

4134half, whatever it should be.” Ms. Stark’s

4141suggestion that the collapse was filled in

4148between January 25 and February 10, 2005 , is

4156belied by testimony that repairing a

4162sinkhole collapse of the size suggested by

4169Ms. Stark would have required much more

4176material than was available. (No dirt was

4183imported onto the site.) The evidence

4189admitted at hearing requires a finding that

4196there was no sinkhole collapse onsite.

420265. Spanish Oaks provided reasonable

4207assurance that the System was designed and

4214constructed to include sufficient separation

4219between the pond bottoms and the Floridan

4226Aquifer to prevent groundwater

4230contamination.

4231Construction of Berms

423466. LRAS contended in its Amended

4240Petition that Spanish Oaks failed to give

4247notice prior to constructing clay cores in

4254some of the berms onsite, as required as a

4263condition of the ERP, and that this failure

4271constituted failure to provide reasonable

4276assurances. 14

4278EN. 14 - The Amended Petition

4284actually alleged that this was a

4290permit condition violation

4293requiring revocation of the ERP.

4298However, it was ruled prehearing

4303that "the Petitioner's request for

4308revocation actually is a re quest

4314for a final order denying Spanish

4320Oaks' application for a permit"

4325and that "the allegations of non -

4332compliance with permit conditions

4336should not be stricken but instead

4342should be considered only as they

4348might relate to Spanish Oaks'

4353provision of requi red reasonable

4358assurances for issuance of a

4363permit." See Order on Motion to

4369Dismiss or Strike and Request for

4375Stop - Work Order, entered

4380August 17, 2005.

438367. The interconnection of the three

4389ponds that are part of the System will allow

4398them to functi on as one pond, while a

4407perimeter berm around the entire Spanish

4413Oaks project will ensure that surface water

4420runoff is retained onsite and directed

4426toward the ponds. Ponds A and C are

4434located, respectively, at the southeast and

4440northeast corners of Spanis h Oaks. 15 The

4448design plans submitted with the ERP

4454application indicated that the berms

4459alongside the eastern side of Ponds A and C

4468are to include clay cores, a design feature

4476that was included as a specific condition in

4484the ERP. The purpose of the clay c ores was

4494to prevent offsite impacts caused by lateral

4501movement of water.

4504EN. 15 - Pond B is centrally

4511located in the Spanish Oaks’

4516interior.

451768. The specific conditions of the ERP

4524also required that Spanish Oaks notify

4530SWFWMD's "Surface Water Regul ation Manager,

4536Bartow Permitting Department [William

4540Hartmann], at least 48 hours prior to

4547commencement of construction of the clay

4553core, so that District staff may observe

4560this construction activity."

456369. LRAS proved that Mr. Hartmann did

4570not personally receive a phone call prior to

4578the construction of the clay cores, as

4585required by the ERP, and that SWFWMD staff

4593did not observe the construction. Mr.

4599Hartmann explained that this constituted a

4605permit condition compliance issue which

4610would prevent th e ERP from being transferred

4618to the operation phase until SWFWMD was

4625assured that the clay core was, in fact,

4633constructed as required.

463670. To confirm proper construction of

4642the clay core, Spanish Oaks undertook soil

4649borings. SWFWMD staff engineer S herry

4655Windsor was onsite to observe the soil

4662borings. Spanish Oaks also submitted a

4668report from its engineering consultant

4673certifying that the clay cores had been

4680properly constructed in accordance with the

4686ERP.

468771. SWFWMD typically relies on a pro ject

4695engineer’s signed and sealed certifications

4700of compliance matters. SWFWMD staff

4705observations and the certification provided

4710by the Spanish Oaks engineer satisfactorily

4716resolved the issue of proper clay core

4723construction. Failure to notify

4727Mr. Hartma nn prior to construction, as

4734required by the ERP, does not undermine

4741Spanish Oaks' provision of the necessary

4747reasonable assurance for issuance of the

4753ERP.

475428 . Endnote 3 at Finding of Fact 4 in the Recommended

4766Order in Case 05 - 2606 stated: " The Amende d Petition also

4778alleged that Spanish Oaks failed to follow SWFWMD rules by

4788neglecting to provide for permanent erosion control measures,

4796but no evidence was presented by LRAS on this issue, which

4807appears to have been abandoned. "

481229 . As to the ERP criter ia, the Recommended Order

4823concluded in pertinent part:

482787. The applicable criteria for the

4833issuance of a standard general ERP for the

4841Spanish Oaks project are set forth in Rules

484940D - 4.301 and 40D - 4.302, as well as SWFWMD's

4860Basis of Review (BOR), whic h is made

4868applicable pursuant to Rule 40D - 4.301(3).

487588. LRAS’ challenge to the ERP alleges

4882the presence of a sinkhole or a sinkhole

4890collapse in one or more of the retention

4898ponds for the Spanish Oaks subdivision, and

4905the impact that such alleged sinkh ole or

4913sinkhole collapse would have on conditions

4919for issuance relating to groundwater

4924quality.

492589. LRAS’ case reflects a basic

4931misperception of the permitting criteria

4936applicable to surface water management

4941system retention ponds. Section 6.4.1.b. of

4947the BOR, which establishes specific design

4953criteria for retention areas, requires as

4959follows:

4960Depth – The detention or retention

4966area shall not be excavated to a

4973depth that breaches an aquitard

4978such that it would allow for

4984lesser quality water to pass,

4989either way, between the two

4994systems. In those geographical

4998areas of the District, where there

5004is not an aquitard present, the

5010depth of the pond shall not be

5017excavated to within two (2) feet

5023of the underlying limestone which

5028is part of a drinking water

5034aq uifer.

5036As found, the Spanish Oaks retention ponds

5043comply with this criterion.

504790. LRAS also contends that the Spanish

5054Oaks retention ponds violate Rule 62 -

5061522.300, a rule which, in LRAS’ view,

5068prohibits the location of a stormwater

5074retention pond i n or over a sinkhole. LRAS’

5083reading of the rule is incorrect. Rule 62 -

5092522.300(1), with certain exceptions not

5097relevant here, provides that

5101no installation shall directly or

5106indirectly discharge into ground

5110water any contaminant that causes

5115a violation i n the . . . criteria

5124for receiving ground water as

5129established in Chapter 62 - 520,

5135F.A.C., except within a zone of

5141discharge established by permit or

5146rule pursuant to this chapter.

5151The purpose of a zone of discharge is to

5160provide a mixing zone “extending to the base

5168of the designated aquifer or aquifers,

5174within which an opportunity for the

5180treatment, mixture or dispersion of wastes

5186into receiving ground water is afforded.”

5192Fla. Admin. Code R. 62 - 520.200(23). No

5200evidence introduced at hearing suggests tha t

5207the surface water runoff that infiltrates

5213through the bottom surfaces of the Spanish

5220Oaks retention ponds, and then travels

5226approximately 70 feet through soil before

5232reaching the Floridan aquifer, will exceed

5238applicable ground water criteria when it

5244reaches the aquifer. For that reason, the

5251Spanish Oaks retention ponds do not need a

5259zone of discharge. Rule 62 - 522.300(3)

5266provides that

5268Other discharges through wells or

5273sinkholes that allow direct

5277contact with Class G - I, Class F - I,

5287or Class G - II ground w ater shall

5296not be allowed a zone of

5302discharge.

5303(Emphasis supplied). Classes F - 1, G - 1, and

5313G - II groundwaters are designated for potable

5321use and are located within an aquifer. Fla.

5329Admin. Code R. 62 - 520.410. “Aquifer” is

5337specifically defined as “a geol ogic

5343formation, group of formations, or part of a

5351formation capable of yielding a significant

5357amount of ground water to wells, springs or

5365surface water." Fla. Admin. Code R. 62 -

5373520.200(2). Unless the alleged sinkholes

5378allowed "direct contact" with the Fl oridan

5385Aquifer, a zone of discharge would be

5392permitted, assuming one were needed.

539791. No evidence introduced at hearing

5403suggests that discharges from the retention

5409ponds will come into direct contact with

5416Class G - 1, Class F - 1, or Class G - II

5429groundwa ters. Instead, the discharges from

5435the Spanish Oaks ponds only indirectly

5441contact a drinking water aquifer, after

5447infiltrating through tens of feet of

5453separating soil layers. LRAS has not

5459identified any applicable rule that

5464prohibits the location of a re tention pond

5472in or over a relic sinkhole. Indeed, the

5480record establishes that the presence of a

5487sinkhole in or under a retention pond is

5495problematic only if sinkhole activity

5500affects the approved design of the retention

5507pond. See Findings 47 and 49, supr a .

551692. LRAS’s assertion of a sinkhole

5522collapse at Spanish Oaks during the time

5529frame alleged is contrary to the greater

5536weight of the evidence, which established

5542that the ponds have been constructed and are

5550operating as designed and that there is no

5558active sinkhole on the Spanish Oaks site

5565that adversely affects the quality of

5571receiving waters such that state water

5577quality standards would be violated, or that

5584otherwise affects Spanish Oaks’ ability to

5590provide reasonable assurance of meeting

5595applicabl e permitting conditions.

559993. LRAS offered no evidence to

5605establish that water percolating through the

5611Spanish Oaks retention ponds will come into

5618direct contact with a drinking water aquifer

5625or that a state water quality standard would

5633be violated b y the project. The greater

5641weight of the evidence established that the

5648Spanish Oaks retention ponds comply with the

5655applicable construction requirement as

5659stated in BOR Section 6.4.1.b. There is

5666more than sufficient soil underlying the

5672Spanish Oaks reten tion ponds to assure

5679compliance with this requirement.

568394. As found, Spanish Oaks' failure to

5690notify Mr. Hartmann before beginning

5695construction of the clay core berm does not

5703prevent Spanish Oaks from providing

5708reasonable assurance that permit crite ria

5714will be met. As a result, Spanish Oaks has

5723met its burden of proof and persuasion that

5731all conditions for issuance of the permit

5738have been satisfied and that it is entitled

5746to the requested ERP.

57503 0 . As suggested in the proposed recommended order fil ed

5762by Spanish Oaks in Case 05 - 2606, the Recommended Order retained

5774jurisdiction to consider Spanish Oaks’ Motion for Attorney's

5782Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a - e),

5791if renewed within 30 days after issuance of the final order.

5802Spanish Oaks "renewed" the motion by filing its Petition in this

5813case. SWFWMD's Final Order adopted the Recommended Order in its

5823entirety.

5824Petition in Case 05 - 4644F

58303 1 . The Petition in this case asserts essentially that

5841LRAS had no competent substantial evidence : that there was a n

5853active sinkhole under the retention ponds on the Spanish Oaks

5863site ; that the required clay core was not installed; or that

5874erosion control measures were not used . As to the sinkhole

5885allegations, Spanish Oaks asserts that, even if there were a

5895reasonable basis for filing the Amended Petition in Case 05 -

59062606, it should have been withdrawn upon receipt of Mr. Gulati's

5917report and Spanish Oaks' Motion for Attorney's Fees under

5926Sections 57.105, 120.569(2)(e), and 120.595(1)(a - e), Flo rida

5935St atutes.

59373 2 . As indicated in the findings of fact and conclusions

5949of law in Case 05 - 2606, Donna Stark and Charles Cook did not

5963testify precisely as LRAS had been led to believe from their

"5974affidavits" in the Amended Petition that they would. Like wise,

5984the testimony of Timothy King and George Wilt was not supportive

5995of Donna Stark's "affidavit" as to a sinkhole collapse during

6005construction on the site, or her testimony as to Mr. Wilt's

6016statements to her. T he testimony of Tom Jackson and

6026Charles Co ok also did not completely support Donna Stark's

"6036affidavit" as to the existence of sinkholes on the site . But

6048while the use of "discovery" to establish the testimony of those

6059individuals before the hearing certainly might have alerted LRAS

6068to problems wi th the "affidavits" it was relying on, it was not

6081incumbent on LRAS to undertake such "discovery" in order to

6091avoid sanctions. I t is not found that LRAS's prosecution of its

6103Amended Petition in reliance on those "affidavits" was

6111frivolous , for an improper purpose, or to needlessly increase

6120the costs to Spanish Oaks of having its ERP approved.

61303 3 . LRAS' prosecution of the Amended Petition after

6140receiving Mr. Gulati's report and notice of Spanish Oaks'

6149intention to file its Motion for Attorney's Fees unde r Sections

616057.105, 120.569(2)(e), and 120.595(1)(a - e), Florida St atutes ,

6169also was not proved to be frivolous, for an improper purpose, or

6181to needlessly increase the costs to Spanish Oaks of having its

6192ERP approved. LRAS attempted to follow up on Mr. Gulat i's

6203report so as to enable its retained expert, Mr. Hurst, to verify

6215whether it should be accepted as conclusive proof of the

6225hydrogeology of the site, and perhaps assure LRAS that its

6235Amended Petition could be withdrawn, but LRAS' attempts were

6244unsuccessful . As a result, LRAS was left to presentation of

6255Mr. Hurst's testimony based on the information he had .

626534. Mr. Hurst testified to the likely existence of at

6275least three sinkholes at the site . He based this testimony on

6287his knowledge of the area's st ratigraphy, aerial photographs and

6297topographical maps showing unexplained surface depressions, and

6304evidence reported in Mr. Gulati's report. In addition, there

6313are two documented sinkholes in the "immediate vicinity" of the

6323site an d about a dozen more wit hin two - to - three miles. Based

6339upon his review of all of the pertinent data, Mr. Hurst

6350testified that the surface depressions on the site probably are

6360part of a " lineament " -- i.e. , a fracture in the limestone

6371formation below the earth's surface along which sinkholes tend

6380to form . While he was unable to testify that an active sinkhole

6393existed at the site, he maintained that the information

6402presented to him was insufficient to disprove the existence of

6412an active sinkhole at the site. He also testified to his

6423opinion that relic sinkholes probably existed under the

6431retention ponds. As found in the Recommended Order in Case 05 -

64432606:

6444A relic sinkhole, as contrasted to an active

6452sinkhole, has either been sealed or has

6459self - sealed, so that there is no connectio n

6469between the sinkhole and the underlying

6475aquifer. An active sinkhole provides a

6481direct connection -- referred to by both LRAS’

6489and Spanish Oaks' experts as a “good

6496communication” -- between the surface and the

6503aquifer.

6504Mr. Hurst testified that, even if no a ctive sinkhole existed at

6516the site, the likely relic sinkholes made it more likely that

6527active sinkholes would open there and create a direct conduit to

6538the aquifer.

654035 . At the final hearing and in its proposed recommended

6551order in Case 05 - 2606 , LRAS argued that the Spanish Oaks

6563retention ponds violat ed Rule 62 - 522.300 , even if they were no t

6577constructed over active sinkholes but rather only over relic

6586sinkholes. As concluded in the Recommended Order and Final

6595Order in Case 05 - 2606, such an interpretatio n of the Rule would

6609be "incorrect" and a "misperception." But LRAS' primary

6617argument was that Spanish Oaks did not provide reasonable

6626assurance that there were not active sinkholes at the site , and

6637the "fall - back" argument was not unreasonable to make bas ed

6649primarily on Mr. Hurst's testimony .

66553 6 . The Petition also asserted that LRAS had no evidence

6667in support of its allegation that the required clay core was not

6679in stalled , or that required erosion control measures were not

6689provided. But facts supported a finding that Spanish Oaks did

6699not notify SWFWMD, as required, which was ruled to be relevant

6710to the provision of reasonable assurance in general, and the

6720erosion control issue was a minor feature of the Amended

6730Petition, and the Motion for Attorney's Fe es under Sections

674057.105, 120.569(2)(e), and 120.595(1)(a - e), Florida St atutes,

6749filed in Case 05 - 2606 did not mention it.

675937 . Evidence was presented during the final hearing in

6769Case 05 - 2606 that t he challenge in LRAS' Petition and Amended

6782Petition wa s virtually identical to a challenge to Spanish Oaks'

6793ERP that was filed by Donna Starks on behalf of her not - for -

6808profit corporation, Central Florida EcoTours, in early May 2005

6817but was time - barred and dismissed because Starks and Ecotours

6828received mailed not ice of the issuance of the ERP to Spanish

6840Oaks on April 27, 2004. Spanish Oaks implied during the final

6851hearing in Case No. 05 - 2606 that Donna Starks told LRAS about

6864the fate of the EcoTours challenge and asked LRAS to file its

6876Petition and Amended Petiti on at her behest to block the Spanish

6888Oaks development for leverage to accomplish her ulterior motive -

6898- namely, purchase of the property by EcoTours . But those

6909allegations were denied by LRAS and were not proven during the

6920hearing in Case 05 - 2606 .

6927CONCLUSIONS OF LAW

6930Burdens of Proof

693338 . Spanish Oaks had the burden to prove in this case that

6946sanctions, including fees and costs, should be awarded under

6955Sections 57.105, 120.569(2)(e), and 120.595(1), Florida

6961Statutes. LRAS had the burden to prove its arg ument that

6972Spanish Oaks waived, and should be estopped from seeking,

6981sanctions in this case

6985LRAS' Waiver/Estoppel Argument

698839 . LRAS argues in this case that Spanish Oaks waived, and

7000should be estopped from seeking, sanctions in this case because

7010it did n ot request or obtain findings in Case 05 - 2606 either

7024that LRAS raised no j usticiable issue of law or fact or that

7037LRAS brought Case 05 - 2606 for an improper purpose, but instead

7049only asked for and received a retention of jurisdiction to

7059consider those issue s.

70634 0 . Spanish Oaks in its Proposed Final O rder in this case

7077concedes that, to be applicable, Section 120.595(1)(a), Florida

7085Statutes, could be read to require a finding (or at least a

7097request for a finding) that LRAS participated in the hearing for

7108an improper purpose. However, it is concluded that the

7117procedure of retaining jurisdiction in a recommended order to

7126consider sanctions requested in a pending motion is sufficient

7135to preserve jurisdiction over the Motion for Attorney's Fees

7144under Sections 57 .105, 120.569(2)(e), and 120.595(1)(a - e),

7153Florida Statutes , filed in Case 05 - 2606, especially where the

7164final order also reserves jurisdiction, which occurred in this

7173case by adoption of the Recommended Order "in its entirety."

7183See G.E.L. Corp. v. Dept. o f Environmental Protection, et al. ,

7194875 So. 2d 1257 (Fla. 5th DCA 2004).

7202Section 57.105

72044 1 . Section 57.105, Florida Statutes, provides in

7213pertinent part:

7215(1) Upon the court's initiative or motion

7222of any party, the court shall award a

7230reasonable attor ney's fee to be paid to the

7239prevailing party in equal amounts by the

7246losing party and the losing party's attorney

7253on any claim or defense at any time during a

7263civil proceeding or action in which the

7270court finds that the losing party or the

7278losing party's a ttorney knew or should have

7286known that a claim or defense when initially

7294presented to the court or at any time before

7303trial:

7304(a) Was not supported by the material facts

7312necessary to establi sh the claim or defense;

7320or

7321(b) Would not be supported by the

7328ap plication of then - existing law to those

7337material facts.

7339However, the losing party's attorney is not

7346personally responsible if he or she has

7353acted in good faith, based on the

7360representations of his or her client as to

7368the existence of those material facts. If

7375the court awards attorney's fees to a

7382claimant pursuant to this subsection, the

7388court shall al so award prejudgment interest.

7395(2) Paragraph (1)(b) does not apply if the

7403court determines that the claim or defense

7410was initially presented to the court a s a

7419good faith argument for the extension,

7425modification, or reversal of existing law or

7432the establishment of new law, as it applied

7440to the material facts, with a reas onable

7448expectation of success.

7451(3) At any time in any civil proceeding or

7460action in whic h the moving party proves by a

7470preponderance of the evidence that any

7476action taken by the opposing party,

7482including, but not limited to, the filing of

7490any pleading or part thereof, the assertion

7497of or response to any discovery demand, the

7505assertion of any claim or defense, or the

7513response to any request by any other party,

7521was taken primarily for the purpose of

7528unreasonable delay, the court shall award

7534damages to the moving party for its

7541reasonable expenses incurred in obtaining

7546the order, which may include attorney's

7552fees, and other loss resulting from the

7559improper delay.

7561(4) A motion by a party seeking sanctions

7569under this section must be served but may

7577not be filed with or presented to the court

7586unless, within 21 days after service of the

7594motion, the ch allenged paper, claim,

7600defense, contention, allegation, or denial

7605is not withdrawn or appropriately corrected.

7611(5) In administrative proceedings under

7616chapter 120, an administrative law judge

7622shall award a reasonable attorney's fee and

7629damages to be paid to the prevailing party

7637in equal amounts by the losing party and a

7646losing party's attorney or qualified

7651representative in the same manner and upon

7658the same basis as provided in subsections

7665(1) - (4). Such award shall be a final order

7675subject to judicial re view pursuant to s.

7683120.68. If the losing party is an agency as

7692defined in s. 120.52(1), the award to the

7700prevailing party shall be against and paid

7707by the agency. A voluntary dismissal by a

7715nonprevailing party does not divest the

7721administrative law judg e of jurisdiction to

7728make the award described in this subsection.

7735(6) The provisions of this section are

7742supplemental to other sanctions or remedies

7748available under law or under court rules.

77554 2 . The standards set forth in Subsection (1) , and

7766incorpora ted by reference in Subsection (5) , were the result of

7777an amendment to Section 57.105, Florida Statutes, in 1999. See

7787§ 4, Ch. 99 - 225, Laws of Florida. Prior to that amendment, the

7801statute provided for the award of attorney's fees when " there

7811was a compl ete absence of a justiciable issue of either law or

7824fact raised by the complaint or defense of the losing party ."

78364 3 . In the case of Wendy's v. Vandergriff , 865 So. 2d 520,

7850523 (Fla. 1st DCA 2003), the court discussed the legislative

7860changes to Section 57.105:

7864[T]his statute was amended in 1999 as

7871part of the 1999 Tort Reform Act in an

7880effort to reduce frivolous litigation and

7886thereby to decrease the cost imposed on the

7894civil justice system by broadening the

7900remedies that were previously available. Se e

7907Ch. 99 - 225, s. 4, Laws of Florida. Unlike

7917its predecessor, the 1999 version of the

7924statute no longer requires a party to show a

7933complete absence of a justiciable issue of

7940fact or law, but instead allows recovery of

7948fees for any claims or defenses that a re

7957unsupported. [ Citations omitted ] However,

7963this Court cautioned that section 57.105

7969must be applied carefully to ensure that it

7977serves the purpose for which it was

7984intended, which was to deter frivolous

7990pleadings. [Citations omitted]

7993In determining whether a party is

7999entitl ed to statutory attorney's fees under

8006section 57.105, Florida Statutes,

8010frivolousness is determined when the claim

8016or defense was initially filed; if the claim

8024or defense is not initially frivolous, the

8031court must then determine w hether the claim

8039or defense became frivolous after the suit

8046was filed. [Citation omitted] In so doing,

8053the court determines if the party or its

8061counsel knew or should have known that the

8069claim or defense asserted was not supported

8076by the facts or an appl ication of existing

8085law. [Citation omitted] An award of fees

8092is not always appropriate under section

809857.105, even when the party seeking fees was

8106successful in obtaining the dismissal of the

8113action or summary judgment in an action.

8120[Citation omitted]

8122T he court in Wendy's recognized that the new standard is

8133difficult to define and must be applied on a case - by - case basis:

8148While the revised statute incorporates the

8154'not supported by the material facts or

8161would not be supported by application of

8168then - existi ng law to those material facts'

8177standard instead of the 'frivolous' standard

8183of the earlier statute, an all encompassing

8190definition of the new standard defies us.

8197It is clear that the bar for imposition of

8206sanctions has been lowered, but just how far

8214it h as been lowered is an open question

8223requiring a case by case analysis.

8229Id. at 524 , citing Mullins v. Kennelly , 847 So. 2d at 1155, n.4.

8242(Fla. 5th DCA 2003).

82464 4 . More recently, the First District Court of Appeal

8257further described the legislative change:

8262The 1999 version lowered the bar a party

8270must overcome before becoming entitled to

8276attorney's fees pursuant to section 57.105,

8282Florida Statutes [Citations omitted.]

8286Significant ly, the 1999 version of 57.105

" 8293applies to any claim or defense, and does

8301no t require that the entire action be

8309frivolous."

8310Albritton v. Ferrera , 913 So. 2d 5, 8 (Fla. 1st DCA 2005),

8322quoting Mullins v. Kennelly , supra . The Florida Supreme Court

8332has noted that the 1999 amendments to Section 57.105, Florida

8342Statutes, "greatly expa nd the statute's potential use." Boca

8351Burger, Inc. v. Richard Forum , 912 So. 2d 561, 570 (Fla. 2005).

83634 5 . The phrase "supported by the material facts" found in

8375Section 57.105(1)(a), Florida Statutes, was defined by the court

8384in Albritton to mean that the "party possesses admissible

8393evidence sufficient to establish the fact if accepted by the

8403finder of fact." Albritton , 913 So. 2d 5, at 7 , n.1.

841446 . In this case, Spanish Oaks did not prove that LRAS

8426knew or should have known at the time it filed its Am ended

8439Petition, or at any time through the final hearing, that its

8450position was not supported by the material facts necessary to

8460its challenge to the ERP. As late as two days before the final

8473hearing, LRAS was attempting to add Larry Madrid, an engineer,

8483as a witness and was attempting to get access to information its

8495expert geologist, Marc Hurst, said was necessary for him to

8505verify the reliability of Mr. Gulati's report and conclusion

8514that there was no active sinkhole beneath the Spanish Oak

8524retention po nds. It is not known what Mr. Madrid's testimony

8535would have been, and without access to the information he

8545requested, Mr. Hurst testified that he would not rely on Mr.

8556Gulati's report and conclusion. If accepted, Mr. Hurst's

8564testimony could have supporte d a finding that Spanish Oaks di d

8576not meet its burden in Case 05 - 2606 of proving that there was no

8591active sinkhole on the site. For these reason s , it is concluded

8603that Spanish Oaks did not prove entitlement to sanctions under

8613Section 57.105(1).

861547 . As to the clay core required in the berm, while no

8628evidence was presented that the clay core was not present, the

8639facts supported a finding that Spanish Oaks did not notify

8649SWFWMD, as required, which was ruled to be relevant to the

8660provision of reasonable ass urance in general. Under those

8669circumstances, it was not incumbent on LRAS to drop the part of

8681the clay core allegation that serious harm would be possible if

8692the clay core were not constructed as required .

870148 . No evidence was presented on the issue of erosion

8712control. But that was a minor feature of the Amended Petition,

8723and the Motion for Attorney's Fees under Sections 57.105,

8732120.569(2)(e), and 120.595(1)(a - e), Florida St atutes, filed in

8742Case 05 - 2606 did not mention the erosion control issue. Under

8754those circumstances, it was not incumbent on LRAS to file a

8765paper drop ping that part of the Amended Petition instead of just

8777abandoning it , as apparently was done .

8784Section 120.569(2)(e)

878649 . Section 120.569(2)(e), Florida Statutes, provides:

8793(e) All pleadings, motions, or other papers

8800filed in the proceeding must be signed by

8808the party, the party's attorney, or the

8815party's qualified representative. The

8819signature constitutes a certificate that the

8825person has read the pleading, motion, or

8832other paper a nd that, based upon reasonable

8840inquiry, it is not interposed for any

8847improper purposes, such as to harass or to

8855cause unnecessary delay, or for frivolous

8861purpose or needless increase in the cost of

8869litigation. If a pleading, motion, or other

8876paper is sign ed in violation of these

8884requirements, the presiding officer shall

8889impose upon the person who signed it, the

8897represented party, or both, an appropriate

8903sanction, which may include an order to pay

8911the other party or parties the amount of

8919reasonable expenses incurred because of the

8925filing of the pleading, motion, or other

8932paper, including a reasonable attorney's

8937fee.

89385 0 . Case law holds that an objective standard is used to

8951determine improper purpose for the purpose of imposing sanctions

8960on a party or attorn ey under Section 120.569(2)(e) and

8970predecessor statutes. As stated in Friends of Nassau County,

8979Inc. v. Nassau County , 752 So. 2d 42, 49 - 51 (Fla. 1st DCA 2000):

8994In the same vein, we stated in Procaccci

9002Commerical Realty, Inc. v. Department of

9008Health and R ehabilitative Services , 690 So.

90152d 603 (Fla. 1st DCA 1997): The use of an

9025objective standard creates a requirement to

9031make reasonable inquiry regarding pertinent

9036facts and applicable law. In the absence of

"9044direct evidence of the party's and

9050counsel's stated of mind, we must examine

9057the circumstantial evidence at hand and ask,

9064standing in the party's or counsel's shoes

9071would have prosecuted the claim." Id. at

9078608 n. 9 (quoting Pelletier v. Zweifel , 921

9086F. 2d 1465 , 1515 (11th Cir. 1991)). See In

9095re Sargen t , 136 F. 3d 349, 352 (4th Cir.

91051998) ("Put differently a legal position

9112violates Rule 11 if it 'has "absolutely no

9120chance of success under the existing

9126precedent." ') Brubaker v. City of Richmond ,

9133943 F. 2d 1363, 1373 (4th Cir. 1991)(quoting

9141Cleveland Demolition Co. v. Azcon Scrap

9147Corp. , 827 F. 2d 984, 988 (4th Cir. 1987))."

9156* * *

9159Whether [predecessor to Section 120.595(1)]

9164section 120.57(1)(b)5., Florida Statutes

9168(1995), authorizes sanctions for an initial

9174petition in an environmental case

9179turns . . . on the question whether the

9188signer could reasonably have concluded that

9194a justiciable controversy existed under

9199pertinent statutes and regulations. If,

9204after reasonable inquiry, a person who

9210reads, then signs, a pleading had

"9216reasonably clear legal justification" to

9221proceed, sanctions are inappropriate.

9225Procacci , 690 So. 2d at 608 n. 9; Mercedes ,

9234560 So. 2d at 278.

92395 1 . In addition, it was held in Mercedes Lighting and

9251Electric Supply, Inc. v. Dept. of General Services , 560 So. 2d

9262272, 276 (Fla. 1st DCA 1990), that the case law construing Rule

927411 of the Federal Rules of Civil Procedure was useful in

9285applying a predecessor statute to Section 120.569(2)(e). The

9293court went on to state:

9298The rule's proscription of filing papers for

9305an improper purpo se is designed to

9312discourage dilatory or abusive tactics and

9318to streamline the litigation process. The

9324rule is aimed at deterrence, not fee

9331shifting or compensating the prevailing

9336party. In short, the key to invoking rule

934411 is the nature of the conduct of counsel

9353and the parties, not the outcome.

9359Schwarzer, "Sanctions Under the New Federal

9365Rule 11 -- A Closer Look," 104 F.R.D, 181, 185

9375(1985). A party seeking sanctions under

9381rule 11 should give notice to the court and

9390the offending party promptly upon

9395discovering a basis to do so. Advisory

9402Committee Note to Rule 11. If it may be

9411fairly accomplished, the court should then

9417promptly punish the transgression. In re

9423Yagman , 796 F. 2d 1165, 1183 (9th Cir. 1986).

9432See also , Ortho Pharmaceutical v. Sona

9438Distrib utors, Inc. , 117 F.R.D. 170, 173

9445(S.D. Fla. 1986). If an obvious and

9452recognizable offending pleading is filed,

9457the court at the very least should provide

9465notice to the attorney or party that rule 11

9474sanctions will be as sessed at the end of the

9484trial i f ap propriate. The purpose of the

9493rule -- deterring subsequent abuses -- is not

9501well served if an offending pleading is

9508fully litigated an d the offender is not

9516punished until the trial is at an end. See

9525In re Yagman , 796 F. 2d at 1184 - 6; and Ortho

9537Pharmaceutical , 117 F.R.D. at 173. One of

9544the basic tenets of rule 11 enforcement

9551appears to be, not surprisingly, that a

9558party is required to take action to mitigate

9566the amount of resources expended in defense

9573of the offending pleading or motion. In his

9581article, Schw arzer comments: " Normally,

9586although not necessarily always, a claim or

9593defense so meritless as to warrant

9599sanctions, should have been susceptible to

9605summary disposition either in the process of

9612narrowing issues under Rule 16 or by motion.

9620Only in the rar e case will the offending

9629party succeed in delaying exposure of the

9636baseless character of its claim or defense

9643until trial. Permitting or encouraging the

9649opposing party to litigate a baseless action

9656or defense past the point at which it could

9665have been di sposed of tends to perpetuate

9673the waste and delay which the rule is

9681intended to eliminate. It also undermines

9687the mitigation principle which should apply

9693in the imposition of sanctions, limiting

9699recovery to those expenses and fees that

9706were reasonably nec essary to resist the

9713offending paper. " Schwarzer, 104 F.R.D. at

9719198.

9720Id. at 276 - 277. In this case , Spanish Oaks waited until just

9733prior to the final hearing in Case 05 - 2606 to seek sanctions

9746under Section 120.569(2)(e) . The delay in seeking sanctions

9755also militates, in an d of itself, against granting the request

9766for sanctions.

97685 2 . For the reasons set out in the Findings of Fact, under

9782the circumstances, LRAS's participation in this proceeding was

9790not proven to be for an improper purpose under Secti on

9801120.56 9 (2)(e).

9804Section 120.595(1)

98065 3 . Section 120.595(1), Florida Statutes, provides:

9814CHALLENGES TO AGENCY ACTION PURSUANT TO

9820SECTION 120.57(1).

9822(a) The provisions of this subsection

9828are supplemental to, and do not abrogate,

9835other provisions allowing the award of fees

9842or costs in administrative proceedings.

9847(b) The final order in a proceeding

9854pursuant to s. 120.57(1) shall award

9860reasonable costs and a reasonable attorney's

9866fee to the prevailing party only where the

9874nonprevailing adverse p arty has been

9880determined by the administrative law judge

9886to have participated in the proceeding for

9893an improper purpose.

9896(c) In proceedings pursuant to s.

9902120.57(1), and upon motion, the

9907administrative law judge shall determine

9912whether any party parti cipated in the

9919proceeding for an improper purpose as

9925defined by this subsection. In making such

9932determination, the administrative law judge

9937shall consider whether the nonprevailing

9942adverse party has participated in two or

9949more other such proceedings invol ving the

9956same prevailing party and the same project

9963as an adverse party and in which such two or

9973more proceedings the nonprevailing adverse

9978party did not establish either the factual

9985or legal merits of its position, and shall

9993consider whether the factual o r legal

10000position asserted in the instant proceeding

10006would have been cognizable in the previous

10013proceedings. In such event, it shall be

10020rebuttably presumed that the nonprevailing

10025adverse party participated in the pending

10031proceeding for an improper purpose.

10036(d) In any proceeding in which the

10043administrative law judge determines that a

10049party participated in the proceeding for an

10056improper purpose, the recommended order

10061shall so designate and shall determine the

10068award of costs and attorney's fees.

10074(e) For the purpose of this subsection:

100811. "Improper purpose" means

10085participation in a proceeding pursuant to s.

10092120.57(1) primarily to harass or to cause

10099unnecessary delay or for frivolous purpose

10105or to needlessly increase the cost of

10112litigation, licen sing, or securing the

10118approval of an activity.

101222. "Costs" has the same meaning as the

10130costs allowed in civil actions in this state

10138as provided in chapter 57.

101433. "Nonprevailing adverse party" means

10148a party that has failed to have

10155substantially changed the outcome of the

10161proposed or final agency action which is the

10169subject of a proceeding. In the event that

10177a proceeding results in any substantial

10183modification or condition intended to

10188resolve the matters raised in a party's

10195petition, it shall be determined that the

10202party having raised the issue addressed is

10209not a nonprevailing adverse party. The

10215recommended order shall state whether the

10221change is substantial for purposes of this

10228subsection. In no event shall the term

" 10235nonprevailing party" or "p revailing party"

10241be deemed to include any party that has

10249intervened in a previously existing

10254proceeding to support the position of an

10261agency.

102625 4 . As indicated, case law holds that an objective

10273standard is used to determine improper purpose for the purpos e

10284of imposing sanctions on a party or attorney under Section

10294120.569(2)(e), Florida Statutes, and predecessor statutes.

10300Although there is no appellate decision explicitly extending the

10309objective standard to Section 120.595(1), there does not appear

10318to be any reason why the objective standard should not be used

10330to determine whether LRAS' participation in Case 05 - 2606 was for

10342an improper purpose.

103455 5 . In another appellate decision, decided under a

10355predecessor to Section 120.595(1) before the objective stan dard

10364was enunciated for cases under Section 120.569(2)(e) and its

10373predecessor statutes, the court in Burke v. Harbor Estates

10382Ass'n , 591 So. 2d 1034, 1036 - 1037 (Fla. 1st DCA 1991), held:

10395The statute is intended to shift the cost of

10404participation in a Sect ion 120.57(1)

10410proceeding to the nonprevailing party if the

10417nonprevailing party participated in the

10422proceeding for an improper purpose. A party

10429participates in the proceeding for an

10435improper purpose if the party's primary

10441intent in participating is any of four

10448reasons, viz: to harass, to cause

10454unnecessary delay, for any frivolous

10459purpose, [FN1] or to needlessly increase the

10466prevailing party's cost of securing a

10472license or securing agency approval of an

10479activity.

10480Whether a party intended to participate in a

10488Section 120.57(1) proceeding for an improper

10494purpose is an issue of fact. See Howard

10502Johnson Company v. Kilpatrick , 501 So.2d 59,

1050961 (Fla. 1st DCA 1987) (existence of

10516discriminatory intent is a factual issue);

10522School Board of Leon County v. Hargis , 400

10530S o.2d 103, 107 (Fla. 1st DCA 1981)

10538(questions of credibility, motivation, and

10543purpose are ordinarily questions of fact).

10549The absence of direct evidence of a party's

10557intent does not convert the issue to a

10565question of law. Indeed, direct evidence of

10572intent may seldom be available. In

10578determining a party's intent, the finder of

10585fact is entitled to rely upon permissible

10592inferences from all the facts and

10598circumstances of the case and the

10604proceedings before him.

10607FN1. A frivolous purpose is one

10613which is of lit tle significance or

10620importance in the context of the

10626goal of administrative

10629proceedings. Mercedes Lighting &

10633Electrical Supply, Inc. v.

10637Department of General Services ,

10641560 So.2d 272, 278 (Fla. 1st DCA

106481990).

1064956 . This case is distinguishable from the Fri ends of

10660Nassau County and Burke cases. Likewise, it is distinguishable

10669on the facts from the decision in Good Samaritan Hosp. v. Dept.

10681of Health and Rehabilitative Servs. , 582 So. 2d 722, 724 (Fla.

106924th DCA 1991), also cited by Spanish Oaks in support of i ts

10705claim for an award under Section 120.595(1).

1071257 . While DOAH has jurisdiction to enter the final order

10723under Section 120.569(2)(e) , only SWFWMD has jurisdiction to do

10732so under Section 120.595(1), and then only if the recommended

10742order determines facts entit ling a party to an award. W hile the

10755substantive law under the two statutes also is different to some

10766extent, the differences are slight and of no import in this

10777case. Since no award is being made under Section 120.569(2)(e )

10788because it was not prove n that LRAS participated in Case 05 - 2606

10802for an improper purpose, no determination of facts entitling

10811Spanish Oaks to an award of fees and costs would be made under

10824Section 120.595(1), and there is no need to enter a supplemental

10835recommended order under Se ction 120.595(1) (c) .

10843DISPOSITION

10844Based on the foregoing Findings o f Fact and Conclusions of

10855Law, the Petition for Costs and Attorneys' Fees under Sections

1086557.105, 12 0.569(2)(e), and 120.595(1) is denied .

10873DONE AND ORDERED this 7th day of July , 2006 , in

10883Tallahassee, Leon County, Florida.

10887S

10888J. LAWRENCE JOHNSTON

10891Administrative Law Judge

10894Division of Administrative Hearings

10898The DeSoto Building

109011230 Apalachee Parkway

10904Tallahassee, Florida 32399 - 3060

10909(850) 488 - 9675 SUNC OM 278 - 9675

10918Fax Filing (850) 921 - 6847

10924www.doah.state.fl.us

10925Filed with the Clerk of the

10931Division of Administrative Hearings

10935this 7th day of July , 2006 .

10942ENDNOTES

109431 / References to these statutes are to the 2005 codif ication of

10956the Florida Statutes.

109592 / References to the Florida Administrative Code refer to the

10970codification in effect at the time of the final hearing in DOAH

10982Case No. 05 - 2606.

10987COPIES FURNISHED :

10990Martha Harrell Chumbler, Esquire

10994Carlton Fields, P. A.

10998Post Office Drawer 190

11002215 South Monroe Street, Suite 500

11008Tallahassee, Florida 32302 - 0190

11013Benjamin W. Hardin, Jr., Esquire

11018Hardin & Associates, P.A.

11022Post Office Box 3604

11026Lakeland, Florida 33802 - 3604

11031Martha A. Moore, Esquire

11035Southwest Florida Wate r Management District

110412379 Broad Street

11044Brooksville, Florida 34604 - 6899

11049Jack Wolf, Esquire

11052Jack Wolf, P.A.

110552028 Shepherd Road, Number 350

11060Mulberry, Florida 33860 - 8699

11065Jeff A. Albinson, Esquire

11069Marshall, Dennehey, Warner,

11072Coleman & Goggin

11075201 East Ken nedy Boulevard, Suite 1100

11082Tampa, Florida 33602 - 5827

11087NOTICE OF RIGHT TO JUDICIAL REVIEW

11093A party who is adversely affected by this Final Order is

11104entitled to judicial review pursuant to Section 120.68, Florida

11113Statutes. Review proceedings are governed b y the Florida Rules

11123of Appellate Procedure. Such proceedings are commenced by

11131filing the original Notice of Appeal with the agency clerk of

11142the Division of Administrative Hearings and a copy, accompanied

11151by filing fees prescribed by law, with the District Court of

11162Appeal, First District, or with the District Court of Appeal in

11173the Appellate District where the party resides. The notice of

11183appeal must be filed within 30 days of rendition of the order to

11196be reviewed.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/09/2009
Proceedings: Transmittal letter from Claudia Llado forwarding the two-volume Transcript, along with Petitioner`s Exhbitis; Southwest Florida Water Management District`s Exhbitis; Spanish Oaks` Exhibits, and Joint Exhibit 1 to the agency (lower case number 05-2606).
PDF:
Date: 07/07/2006
Proceedings: DOAH Final Order
PDF:
Date: 07/07/2006
Proceedings: Final Order (hearing held April 11, 2006). CASE CLOSED.
PDF:
Date: 04/21/2006
Proceedings: (Petitioner`s) Proposed Final Order filed.
PDF:
Date: 04/21/2006
Proceedings: Spanish Oak`s LLC`S Notice of Filing Proposed Final Order filed.
PDF:
Date: 04/21/2006
Proceedings: Respondent`s Proposed Order filed.
Date: 04/11/2006
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/11/2006
Proceedings: Bench Brief of Lake Region Audubon Society, Inc. filed.
PDF:
Date: 03/13/2006
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 11, 2006; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 03/10/2006
Proceedings: Notice of Telephonic Motion Hearing (Motion hearing set for March 13, 2006; 10:00 a.m.).
PDF:
Date: 03/09/2006
Proceedings: Respondent`s Motion to Continue Hearing on Amended Petition for Attorney`s Fees and Costs filed.
PDF:
Date: 03/09/2006
Proceedings: Notice of Appearance of Counsel for Respondent (filed by J. Albinson).
Date: 02/15/2006
Proceedings: Exhibits in Case No. 05-2606 filed (not available for viewing).
PDF:
Date: 02/09/2006
Proceedings: Notice of Telephonic Final Hearing (telephonic final hearing set for March 16, 2006; 10:00 a.m.).
PDF:
Date: 02/06/2006
Proceedings: Letter to Judge Johnston from J. Wolf regarding the conference call held February 2006 filed.
PDF:
Date: 01/25/2006
Proceedings: Notice of Unavailability filed.
PDF:
Date: 01/24/2006
Proceedings: Respondent`s Response to Petition for Costs and Attorney`s Fees filed.
PDF:
Date: 01/23/2006
Proceedings: Letter to Judge Johnston from M. Moore enclosing exhibits A, B and C that were omitted from the (Proposed) Final Order filed (exhibits not available for viewing).
PDF:
Date: 01/23/2006
Proceedings: Response to Motion to Strike and/or Dismiss filed.
PDF:
Date: 01/18/2006
Proceedings: Order Granting Leave to Amend Petition for Costs and Attorneys` Fees.
PDF:
Date: 01/18/2006
Proceedings: Notice of Telephonic Pre-hearing Conference (set for February 8, 2006; 10:00 a.m.).
PDF:
Date: 01/17/2006
Proceedings: Motion for Leave to Amend Petition for Costs and Attorneys` Fees filed.
PDF:
Date: 01/17/2006
Proceedings: Letter to Judge Johnston from J. Wolf regarding the Motion for Extension of Time filed.
PDF:
Date: 01/17/2006
Proceedings: Respondent`s Motion to Strike and/or Dismiss Petition for Costs and Attorneys` Fees filed.
PDF:
Date: 01/17/2006
Proceedings: Attorney Fee Affidavit of Gerald P. Hill, II filed.
PDF:
Date: 01/17/2006
Proceedings: Affidavit of Reasonable Attorney`s Fees filed.
PDF:
Date: 01/13/2006
Proceedings: Notice of Telephonic Pre-hearing Conference (set for January 17, 2006; 11:00 a.m.).
PDF:
Date: 01/12/2006
Proceedings: Respondent`s Motion for Extension of Time to File a Response to Petition for Costs and Attorney`s Fees filed.
PDF:
Date: 12/21/2005
Proceedings: Notice sent out that this case is now before the Division of Administrative Hearings.
PDF:
Date: 12/20/2005
Proceedings: Petition for Costs and Attorneys` Fees filed (formerly DOAH Case No. 05-2606).

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
12/20/2005
Date Assignment:
12/21/2005
Last Docket Entry:
01/09/2009
Location:
Tallahassee, Florida
District:
Northern
Agency:
Water Management Districts
Suffix:
F
 

Counsels

Related Florida Statute(s) (7):