20-005557 Southwest Florida Water Management District vs. William D. Going Status: Closed DOAH Final Order on Monday, April 26, 2021.

Summary: Contractor built 4 wells without permit. Contractor falsely reported well completion dates. Violations were intentional, an aggravating factor. Previous violation was an aggravating factor. Fine of $3,000 and 9 points on license were appropriate.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S OUTHWEST F LORIDA W ATER

M ANAGEMENT D ISTRICT ,

Petitioner ,

vs. Case No. 20 - 5557

W ILLIAM D. G OING ,

Respondent .

/

F INAL O RDER

Administrative Law Judge John D. C. Newton, II, of the Division of

Administrative Hearings (Division) heard this case by Zoom conference on

January 27, 2021.

A PPEARANCES

For Petitioner: Megan Albrecht, Esquire

Elizabeth M. Fernandez, Esquire

Southwest Florida Water Management District

7601 US Highway 301 North

Tampa, Florida 33637

For Respondent: C harles Dale Going , Qualified Representative

Going Irrigation of Central Florida, Inc.

3110 Grand Avenue

Pinellas Park, Florida 33782

S TATEMENT O F T HE I SSUE S

A. Did Respondent, William D. Going, willfully and intentionally violate

Florida Statutes and Southwest Florida Water Management District

(District) rules regulating well construction?

B. If he did, what corrective action is appropriate?

P RELIMINARY S TATEM ENT

The District issued an Administrative Complaint and proposed order

charging Mr. Going with willfully and intentionally constructing four wells

without a required permit, failing to timely submit Well Completion Reports,

and misrepresenting the wellsÔ c onstruction date on Well Completion

Reports. The District proposed imposing $3,000 in fines and assessing nine

points against his license. Mr. Going disputed the proposed fines and points

assessment and requested an administrative hearing. The District ref erred

the matter to the Division to conduct the requested hearing. The parties

moved for a summary hearing in accordance with section 1 20.574(1)(b),

Florida Statutes (2020). 1

The undersigned conducted the summary hearing on January 27, 2021.

The District presented testimony from Teri Rhodes and Samuel Rogers. Mr.

Going testified on his own behalf. Joint E xhibits 1 through 11 were received

into evidence. The Transcript was filed February 11, 2021 . The parties timely

filed proposed final orders . They have been considered in preparation of this

Final Order.

F INDINGS OF F ACT 2

1. William Going is a licensed water well contractor. He has held License

Number 1564 since 2007 . Mr. Going is a managing member of Going

Irriga tion, Inc., and conducts business under that name.

2. Mr. Going constructed four sand point irrigation wells at a residential

property in St. Petersburg, Florida. He did not have and had not applied for a

Well Construction Permit ( WCP ).

1 All citations to Florida Statutes are to the 2020 codification unless noted other wise.

2 The findings are based upon the evidence admitted at the hearing and the stipulations of

the parties.

3. Mr. Going did not call or otherwise contact the District to request a

WCP .

4. The District operates an online permitting system called the Water

Management Informat i on System (WMIS) . The District will issue a WCP

based upon a telephone call, an applica tion on its website, a faxed

application, a mailed application, or a hand - delivered application. The

District routinely issues permits within two hours of receiving an application ,

often within ten minutes to half an hour. The District's application system

operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours.

5. While quick , the process reviews significant information. It verifies that

the well location is sufficiently distant from septic system s , verifies

construction methods an d materials, and verifies , if the well is for drinking

water, that the well is not too close to a contamination site.

6 . Mr. Going is a registered and experienced use r of WMIS .

7 . The District learned of the unpermitted wells on April 28, 2020, when it

received an anonymous complaint.

8 . On May 5, 2020, approximately ten days after he constructed the wells,

Mr. Going submitted WCP Application 889173 for construction of the four

already completed sand point irrigation wells. He did not disclose that they

were already completed. He falsely represented them as proposed.

9 . The District approved the application on May 6, 2020 , and issued WCP

889173 to Mr. Going.

10 . On June 11, 2020, Mr. Going submitted four W ell C ompletion R eports

for the well s, falsely rep resenting that each was completed on May 7, 2020.

This was more than 30 days after Mr. Going completed the wells.

1 1 . Mr. Going claimed at the hearing that he tried to apply for a W CP for

four or five days before constructing the wells but was locked out o f the

WMIS . Mr. Going said that his son usually obtained permits online for the

company. He also claimed that he tried to apply online on April 24 and 25,

2019. His claims are not persuasive.

1 2 . There is no question that Mr. Going knew the requirements f or

obtaining a permit and reporting completion. In 2009, in Order N o . SWF 09 -

017, the District imposed a $500.00 fine and assessed five points against his

license for an almost identical offense.

1 3 . In that case , Mr. Going also constructed a well without a permit from

the District or applying for a permit. In that case, like this one, he sought to

excuse failure to apply for a permit by claiming difficulties with the website.

In that case he blamed his wife's unfamiliarity with computers, rather than

his own, for failure to apply. In that case, like this one , he applied for and

obtained a permit after constructing the well.

1 4 . Mr. Going knowingly and willfully constructed four unpermitted wells,

filed a WCP application more than thirty days after he completed the wells,

and misrepresented the dates of completion in the WCP completion reports

that he filed with the District.

15. Mr. Going tries to characterize his after - the - fact misrepresentations as

mitigation. But they were not . Mitigation would have been contacting the

District to advise it of the wells' unpermitted construction and the asserted

justification for it . Furthermore, his m isrepresentation s deprived the District

of the chance to prevent construction of the wells using improper materials or

near a septic tank or contaminated location .

C ONCLUSIONS O F L AW

1 6 . Sections 120.569 and 1 20.57(1) , Florida Statutes , grant the Division

jurisdiction over the parties and the subject matter of this case. 3 The District

must prove its charges by clear and convincing evidence. Nair v. Dep ' t of Bus .

& Prof ' l Reg . , Bd. of Medicine , 654 So. 2d 205, (Fla. 1st DCA 1995 ) .

17. The Complaint charges Mr. Going with willful violation of Florida

Administrative Code Rule 40D - 3.041 by submitting WCP application 889173

3 The Division and the District have contracted for the Division to provide administrative law

judges to conduct hearings for the District.

for the four wells after they had been constructed. Rule 40D - 3.041(1) requires

that a permit be obtained from the Dist rict before construction, repair,

modification, or abandonment of any water well. The District proved by clear

and convincing evidence that Mr. Going willfully and intentionally violated

this rule.

1 8 . The Complaint also charges that Mr. Going violated r u le 40D - 3.411 by

intentionally misrepresenting the date that he completed the wells in the

four well completion reports he filed for them. Rule 40D - 3.411(1)(a) requires

a contractor to submit a form entitled "State of Florida Well Completion

Report," Form N o. LEG - R.005.02, incorporated by reference in the rule,

within 30 days of completing construction of the well. Item four of that form

requires providing the completion date for the well. The District proved by

clear and convincing evidence that Mr. Going w illfully and intentionally

violated this rule.

1 9 . The District adopted both rules under the authority of, and in order to

implement, c hapter 373, Part III , Florida Statutes.

20 . The District assesses fines and points for violations of the rules in

accord ance with the Florida Department of Environmental Protection's

"Water Well Construction Disciplinary Guidelines and Citations Dictionary,

June 2014" (Guidelines). 4 Section II(f) of the Guidelines identifies willful and

repeated violation of c hapter 373 as an unlawful act. Section III(A)(d) makes

violating a District rule grounds for disciplinary action. Section III(A)(e)

makes constructing a well without obtaining a permit grounds for

disciplinary action. Mr. Going's actions are grounds for disciplinary act ion

under both provisions.

2 1 . Section III(C) of the Guidelines provides for assessment of fines and

license points for violations of the rules. Table I of the section establishes a

matrix range of fines and license points for violations ranging from minor to

4 Florida Administrative Code Rule 62 - 531.450(1) adopts the Guidelines by reference,

although the pre - hearing stipulation states that Rule 62 - 531.300 adopts them.

major. The District's propo sed fine of $1,000 and assessment of four points for

untimely filing of the reports falls within the range of sanctions for even a

minor second offense. The District's proposed fine of $2,000 and imposition of

five license points for failure to obtain a pe rmit also falls within the range of

sanctions for even a minor second offense.

2 2 . Section III(C)(iii) identifies mitigating and aggravating circumstances.

The evidence does not prove any mitigating circumstances. The evidence

proves the aggravating circum stances of a willful violation and a repetitive

violation.

2 3 . The proposed fine s of $ 3 ,000 and assessment of nine points are well

within the permissible range of sanctions and are appropriate in this case.

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

recommended that Respondent, Southwest Florida Water Management

District, enter a final order imposing a fine of $ 3 ,000 on Petitioner, William

D. Going, and assessing nine points against his license.

D ONE A ND O RDERED this 3rd day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

J OHN D. C. N EWTON , II

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Cler k of the

Division of Administrative Hearings

this 3rd day of March , 2021 .

C OPIES F URNISHED :

Megan Albrecht, Esquire Elizabeth M. Fernandez, Esquire

Southwest Florida Water Management Southwest Florida Water Management

District District

7601 US Highway 301 North 7601 US 301 North

Tampa, Florida 33637 Tampa, Florida 33637

Charles Dale Going Brian J. Armstrong, P.G., Executive

Going Irrigation of Central Florida, Inc. Director

3110 Grand Avenue Southwest Florida Water Management

Pinellas Park, Florida 33782 District

2379 Broad Street

Brookeville, Florida 34604 6899

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of th e d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.