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08-001063 Pelican Bay Foundation, Inc. vs. Collier County Water And Sewer District And South Florida Water Management District
 Status: Closed
Recommended Order on Thursday, March 20, 2008.

View Dockets  
Summary: An Recommended Order of Dismissal because the alleged injury was not immediate enough for standing.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PELICAN BAY FOUNDATION, INC., )

13)

14Petitioner, )

16)

17vs. ) Case No. 08-1063

22)

23COLLIER COUNTY WATER AND SEWER )

29DISTRICT and SOUTH FLORIDA )

34WATER MANAGEMENT DISTRICT, )

38)

39Respondents. )

41)

42RECOMMENDED ORDER DISMISSAL

45On February 28, 2008, the South Florida Water Management

54District (SFWMD) referred to the Division of Administrative

62Hearings (DOAH), among other things, an Amended Petition for

71Administrative Hearing filed by Pelican Bay Foundation, Inc., and

80Collier County's Motion to Dismiss Complaint [sic], which is

89based primarily on lack of standing. Petitioner filed a Response

99in Opposition, and SFWMD joined in all of the Motion to Dismiss

111except for one paragraph.

115On March 11, 2008, the Collier County Water and Sewer

125District (the County) filed a Motion for Official Recognition of

135circuit court filings, which SFWMD did not oppose but Petitioner

145did oppose. Petitioner subsequently filed a Response in

153Opposition on grounds of relevance.

158A telephonic hearing was held on the pending motions on

168March 14, 2008. All the written and oral arguments have been

179considered.

180First, the County's Motion for Official Recognition is

188granted, although the circuit court filings are only marginally

197relevant.

198As to the County's Motion to Dismiss, Petitioner's standing

207is based on alleged injury-in-fact that is not "of sufficient

217immediacy." § 403.412(5), Fla. Stat. (2007). See also Agrico

226Chem. Co. v. Dept. of Environmental Reg. , 406 So. 2d 478, 482

238(Fla. 2d DCA 1981). To the extent that sufficiently immediate

248injury-in-fact might be alleged, the alleged injury-in-fact is

256not "of the type and nature intended to be protected" by the

268governing statutes and rules, in particular Section

275373.250(2)(c), Florida Statutes. Id. For that reason, the

283Motion to Dismiss is granted. Under Section 120.569(2)(c),

291Florida Statutes, dismissal should be with prejudice at this

300time, Petitioner already having been given leave to amend once,

310and the defect in the pleading not being curable by further

321amendment.

322For the foregoing reasons, it is

328RECOMMENDED that SFWMD dismiss the Amended Petition for

336Administrative Hearing with prejudice.

340RECOMMENDED this 20th day of March, 2008, in Tallahassee,

349Leon County, Florida.

352S

353J. LAWRENCE JOHNSTON

356Administrative Law Judge

359Division of Administrative Hearings

363The DeSoto Building

3661230 Apalachee Parkway

369Tallahassee, Florida 32399-3060

372(850) 488-9675 SUNCOM 278-9675

376Fax Filing (850) 921-6847

380www.doah.state.fl.us

381Filed with the Clerk of the

387Division of Administrative Hearings

391this 20th day of March, 2008.

397COPIES FURNISHED :

400Carol Ann Wehle, Executive Director

405South Florida Water Management District

4103301 Gun Club Road

414West Palm Beach, Florida 33416-4680

419Robert D. Pritt, Esquire

423Roetzel & Andress, LPA

427Trianon Centre, Third Floor

431850 Park Shore Drive

435Naples, Florida 34103-3587

438Edward P. de la Parte, Jr., Esquire

445de la Parte & Gilbert, P.A.

451101 East Kennedy Boulevard, Suite 3400

457Tampa, Florida 33601-2350

460Jennifer Bokankowitz, Esquire

463South Florida Water Management District

4683301 Gun Club Road, Mail Stop Code 1410

476West Palm Beach, Florida 33406

Dockets
Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/22/2008
Proceedings: Final Order filed.
PDF:
Date: 05/22/2008
Proceedings: South Florida Wayer Management District`s Response to Pelican Bay Foundation, Inc.`s Exceptions to the Recommended Order filed.
PDF:
Date: 05/22/2008
Proceedings: Collier County`s Response to Petitioner`s Exceptions to Recommended Order of Dismissal filed.
PDF:
Date: 05/15/2008
Proceedings: Agency Final Order
PDF:
Date: 04/03/2008
Proceedings: Exceptions to Recommended Order of Dismissal filed.
PDF:
Date: 03/20/2008
Proceedings: Recommended Order
PDF:
Date: 03/20/2008
Proceedings: Recommended Order of Dismissal. CASE CLOSED.
PDF:
Date: 03/17/2008
Proceedings: Notice of Availability filed.
Date: 03/14/2008
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 03/13/2008
Proceedings: Petitioner`s Response in Opposition to Collier County`s Motion for Official Recognition filed.
PDF:
Date: 03/11/2008
Proceedings: Collier County`s Motion for Official Recognition filed.
PDF:
Date: 03/11/2008
Proceedings: Petitioner`s First Set of Interrogatories to South Florida Water Management District filed.
PDF:
Date: 03/11/2008
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories to South Florida Water Management District filed.
PDF:
Date: 03/11/2008
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories to Collier County filed.
PDF:
Date: 03/11/2008
Proceedings: Petitioner`s First Request for Production of Documents to Collier County filed.
PDF:
Date: 03/07/2008
Proceedings: Notice by Respondent South Florida Water Management District of Partial Joinder in Respondent Collier County`s Motion to Dismiss Complaint filed.
PDF:
Date: 03/07/2008
Proceedings: Amended Joint Response to Initial Order filed.
PDF:
Date: 03/07/2008
Proceedings: Notice of Telephonic Hearing filed.
PDF:
Date: 03/06/2008
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 03/05/2008
Proceedings: Notice of Service of Collier County`s First Set of Interrogatories to Petitioner filed.
PDF:
Date: 03/05/2008
Proceedings: Collier County`s First Request for Production of Documents to Pelican Bay filed.
PDF:
Date: 03/04/2008
Proceedings: Petitioner`s Response in Opposition to Collier County`s Motion to Dismiss filed.
PDF:
Date: 02/28/2008
Proceedings: Collier County`s Motion to Dismiss Complaint filed.
PDF:
Date: 02/28/2008
Proceedings: Collier County`s Petition for Intervention into Formal Administrative Proceedings Pursuant to Sections 120.569 and 120.57(1), Florida Statutes filed.
PDF:
Date: 02/28/2008
Proceedings: Notice of Appearance (filed by E. de la Parte, Jr.).
PDF:
Date: 02/28/2008
Proceedings: Amended Petition for Administrative Hearing filed.
PDF:
Date: 02/28/2008
Proceedings: Order Dismissing Petition with Leave to Amend filed.
PDF:
Date: 02/28/2008
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 02/28/2008
Proceedings: Proposed Agency Action filed.
PDF:
Date: 02/28/2008
Proceedings: Order on Amended Petition`s Compliance with Requisite Rules, Authorizing Transmittal to the Division of Administrative Hearings, and Notice of Preservation of Record filed.
PDF:
Date: 02/28/2008
Proceedings: Agency referral filed.
PDF:
Date: 02/28/2008
Proceedings: Initial Order.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
02/28/2008
Date Assignment:
02/28/2008
Last Docket Entry:
05/22/2008
Location:
Naples, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (3):