22-000849RX Jacaranda At Central Park Master Association, Inc. vs. South Florida Water Management District Status: Closed DOAH Final Order on Friday, September 2, 2022.

Summary: Petitioner failed to demonstrate standing. Dismissed for lack of jurisdiction.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ACARANDA A T C ENTRAL P ARK M ASTER

A SSOCIATION , I NC . ,

Petitioner ,

vs. Case No. 22 - 0849RX

S OUTH F LORIDA W ATER M ANAGEMENT

D ISTRICT ,

Respondent,

and

S OUTHWEST F LORIDA W ATER

M ANAGEMENT D ISTRICT , S T . J OHNS

R IVER W ATER M ANAGEMENT D ISTRICT ,

S UWANNEE R IVER W ATER M ANAGEMENT

D ISTRICT , A ND F LORIDA D EPARTMENT OF

E NVIRONMENTAL P ROTECTION ,

Intervenors .

/

F INAL O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge ( Ñ ALJ Ò ) Mary Li Creasy , Division of

Administrative Hearings ( Ñ DOAH Ò ), in person in West Palm Beach , Florida ,

and by Zoom conference on May 16, 19 , and 20, 2022 .

A PPEAR ANCES

For Petitioner: John J. Fumero, Esquire

Susan Roeder Martin, Esquire

Stephen Luis Conteaguero, Esquire

Nason, Yeager, Gerson,

Harris & Fumero, P.A.

750 Park of Commerce Boulevard , Suite 210

Boca Raton, Florida 33487

For Respondent: Jennifer D. Brown, Esquire

Marianna R. Sarkisyan, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC 1410

West Palm Beach, Florida 33406

For Intervenor Department of Environmental Protection :

Ronald W. Hoensti ne, III, Esquire

Michelle A. Snoberger, Esquire

Ann L. Prescott, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399

For Intervenor Southwest Florida Water Management District:

Elizabeth M. Fernandez, Esquire

Christopher A. Tumminia, Esquire

Adrienne E llen Vining, Esquire

Megan Albrecht, Esquire

Michael R oy Bray, Esquire

Southwest Florida Water Management District

7601 U.S. Highway 301 North

Tampa, Florida 33637

For Intervenor St. John s River Water Management District:

Mary Ellen Winkler, Esquire

Thomas I. Mayton, Jr., Esquire

Steven J. Kahn, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177

For Intervenor Suwannee River Water Management Distri ct:

Frederick T. Reeves, Esquire

Frederick T. Reeves, P.A.

5709 Tidalwave Drive

New Port Richey, Florida 34562

George T. Reeves, Esquire

Davis, Schnitker, Reeves

and Browning, P.A.

Post Office Drawer 652

Madison, Florida 32341

S TATEMENT OF T HE I SSUE S

Whether the Ñ public safety Ò phrase, contained in section 5.4.2(d),

Environmental Resource Permit Applicant Ô s Handbook Volume II, for Use

Within the Geographic Limits of the South Florida Water Management

District (ÑSFWMD Applicant Handbook Volume IIÒ) ( Ñ Side Slope Rule Ò ), and

incorporated by reference into Florida Administrative Code Rule 40E - 4.091,

constitutes an invalid exercise of delegated authority. Before that issue may

be reached, however, it is necessary to determine whether Petitioner has

standin g to challenge the proposed rule .

P RELIMINARY S TATEMENT

This case challenges an existing environmental resource permitting

( Ñ ERP Ò ) rule governing the design of stormwater management systems

( Ñ SWMS Ò ) under section 120.56, Fl orida Stat utes . On March 18, 202 2,

P etitioner, Jacaranda at Central Park Master Association, Inc. ( Ñ Petitioner Ò

or Ñ Jacaranda Ò ) , filed a petition for administrative hearing challenging the

validity of two words Ï Ñ public safety Ò (the Ñ Challenged Phrase Ò ) in South

Florida Water Management D istrict Ô s ( Ñ SFWMD Ò ) Side Slope Rule.

SFWMD Ô s Side Slope Rule states that Ñ for purposes of public safety, water

quality enhancement and maintenance, all wet retention/detention areas

shall be designed with side slopes no steeper than 4:1 (horizontal:verti cal)

from top of the bank out to a minimum depth of two feet below the control

elevation or an equivalent substitute È . Ò The p etition asserts the

Challenged Phrase constitutes an invalid exercise of delegated legislative

authority because: ( 1) SFWMD excee ded its statutory authority, ( 2) the rule

is arbitrary, ( 3) the rule enlarges and modifies a law implemented, and

( 4) the rule is not the least costly regulatory alternative.

While it initially appeared that the case could be resolved through a

summary fi nal order, the parties agreed there were limited areas where

disputed issues of material fact existed and that a final hearing was

necessary. On April 7, 2022, SFWMD filed an Agreed - to Motion to Schedule

the Case for Final Hearing, Modify Order of Pre - hear ing Instructions, and

Schedule a Case Management Conference.

On April 15, 2022, the Department of Environmental Protection ( Ñ DEP Ò ) ,

Southwest Florida Water Management D istrict ( Ñ SWFWMD Ò ) , St. Johns

River Water Management District ( Ñ SJRWMD Ò ) , and S u wanee River Water

Management District ( Ñ SRWMD Ò ) (collectively referred to as Ñ Intervenors Ò )

filed a Joint Motion to Intervene in this matter , which was granted on

April 27, 2022 .

On April 15, 2022, Jacaranda filed an a mended p etition. Although the

a mended p eti tion was not accompanied by a motion for leave to amend, the

a mended p etition was accepted on April 19, 2022, and it became the operative

petition for this proceeding. On April 22, 2022, SFWMD filed a m otion to

s trike, or in the alternative, a m otion in l i mine to preclude Jacaranda Ô s

argument that the Challenged Rule imposed regulatory costs that could be

reduced by the adoption of less costly alternatives. On May 3, 2022, the

m otion to s trike was granted.

The final hearing was held at SFWMD Ô s headquarters in West Palm

Beach and via Zoom conference on May 16, 19, and 20, 2022. Jacaranda

presented the testimony of Robert M. Brown, who was accepted as an expert

in biology as it relates to ERPs . Jacaranda filed videotaped direct and cross -

examination testimony of Anthony Waterhouse, P.E., in lieu of live

testimony. Jacaranda also called Jesse Markle, P.E., SFWMD Ô s expert, as

part of its case - in - chief. On rebuttal, Jacaranda called on Mr. Brown and

Robert Higgins, P.E., who was accepted as an expert in engineeri ng.

Jacaranda Ô s Exhibits 1 through 3 and 5 through 7 were admitted.

Respondent and Intervenors presented the testimony of the following

witnesses: SFWMD presented the testimony of Jesse Markle, a professional

engineer , who was accepted as an expert in sto rmwater engineering; DEP

presented the testimony of John Coates, a professional engineer, who was

accepted as an expert in engineering ; SJRWMD presented the testimony of

Cameron Dewey, a professional engineer, who was accepted as an expert in

stormwater en gineering ; and SWFWMD presented the testimony of Monte

Ritter, a professional engineer, who was accepted as an expert in water

resources management and stormwater system design. SFWMD Ô s Exhibits 1

through 3 and 9 through 35; DEP Ô s Exhibits 1 through 3; SWF WMD Ô s

Exhibits 1 through 4; SJRWMD Ô s Exhibits 1 through 9; and SRWMD Ô s

Exhibits 1 and 2 were admitted.

At the end of the hearing, the parties agreed to extend the deadline to

submit proposed final orders to 30 days after the filing of the final hearing

tra nscript. The three - volume Transc r ipt was filed with DOAH on June 15,

2022. Respondent and Intervenor s moved ore tenus to increase the page

limit , set forth in Florida Administrative Code R ule 28 - 106.215, to 60 pages

should Respondent and Intervenor s decide to file a joint proposed final order,

which was granted. Respondent and Intervenor s later moved to increase the

page limit to 80 pages, which was granted by Order dated July 11, 2022, and

the parties agreed that the undersigned Ô s time limit for issuing th e F inal

O rder was increased to 45 days after the filing of the proposed final orders

given the increased page limit and the complexity of the issues presented. All

parties timely filed proposed final orders , which were considered in the

drafting of this Fi nal Order. Unless otherwise indicated, citations to the

Florida Statutes refer to the 2022 version.

F INDINGS OF F ACT

The Parties

1. SFWMD is a government entity existing by virtue of c hapter 25270,

Laws of Florida ( 1949 ), and operating pursuant to c hapter 373, Fl orida

Stat utes , and Florida Administrative Code Titles 40E and 62, as a multi -

purpose water management district with the authority in c hapter 373,

part IV , to regulate the construction, operation, and maintenance of surface

water/stormwater managem ent systems, within its geographic regions , which

includes the geographic region where Jacaranda Ô s property is located.

2. DEP is the administrative agency of the State of Florida statutorily

charged with, among other things, protecting Florida Ô s water res ources and

exercising general supervisory authority over the water management

districts. As part of DEP Ô s performance of these duties, it administers and

enforces the provisions of c hapter 373 , part IV , and the rules promulgated

thereunder in the Florida A dministrative C ode.

3. The intervening water management districts are government entities

operating pursuant to c hapter 373 and Florida Administrative Code

Titles 40B (SRWMD) , 40C (SJRWMD) , 40D (SWFWMD) , and 62, as multi -

purpose water management districts with the authority in chapter 373,

p art IV, to regulate the construction, operation, and maintenance of surface

water management systems within their geographic regions.

4. Jacaranda is a Florida corporation, operating since the mid - 1980 Ô s as a

Master Home owner Ô s Association in Broward County, Florida. It is comprised

of 12 residential homeowner Ô s associations ( Ñ HOAs Ò ) and one commercial

development . The relationship between Jacaranda and its members is set

forth in the Ma s ter Declaration for Jacaranda at C entral Park ( Ñ Master

Declaration, Ò Pet Ô r Ex. 1). There are approximately ten wet

detention/retention areas (also known as stormwater ponds) among the

property owned by the members of Jacaranda.

The Side Slope Rule and Challenged Phrase

5. SFWMD Applicant H andbook Volu m e II provides specific detailed

water quality and quantity design and performance criteria for S WMS

regulated by SFWMD through the ERP P rogram authorized under

c hapter 373 , part IV . SFWMD A pplicant H andbook Vol ume II explains and

provides more detail on the rule criteria for stormwater quality and quantity

contained in Florida Administrative Code C hapter 62 - 330.

6. SFWMD Ô s Side Slope Rule states:

Side slopes for wet retention/detention and

attenuation areas Ï for purposes of public safety ,

wate r quality enhancement and maintenance, all

wet retention/detention areas shall be designed

with side slopes no steeper than 4:l

(horizontal:vertical) from top of bank out to a

minimum depth of two feet below the control

elevation, or an equivalent substitu te. Constructed

side slopes steeper than 3.5:1 (horizontal:vertical)

shall be considered a substantial deviation during

the consideration of operation permit issuance. Side

slopes shall be topsoiled, and stabilized through

seeding or planting from 2 feet b elow to 1 foot

above the control elevation to promote vegetative

growth. Side slope vegetation growth survival shall

be a consideration of operation permit issuance.

Side slope dimensional criteria for above ground

impoundments are set forth in Appendix B.

(Emphasis added) .

7. A wet detention/retention area is an area that is used to provide water

quality treatment and attenuation of stormwater runoff from developed

areas. Attenuation is storage of runoff and reduction of a discharge rate at

which the runo ff would otherwise leave the property. Control elevation is the

lowest elevation at which water can exit the stormwater management

system.

8. Runoff from lawns, roads , and other pervious and impervious surfaces

flow into the stormwater ponds. They are inte nded to provide a place for

pollutants to be collected and runoff to be treated before discharge offsite.

Pollutants that sheet flow from stormwater runoff can include oils, greases,

nutrients, sediment, pesticides, and particulate matter bound in sediment

and fecal matter from pets and other species. For this reason, s tormwater

ponds are not designed for recreational purposes such as swimming, fishing ,

and boating.

9 . The 4:1 ratio applies to the initial ERP application. SFWMD will not

approve an applicati on to construct a wet detention/retention area that

proposes side slopes steeper than the 4:1 ratio. Once construction is complete,

the project must be certified by a professional engineer. SFWMD Ô s Side Slope

Rule also includes a 3.5:1 ratio, allowing a n o perational tolerance or margin

of error between the permitted 4:1 plan and how the side slope was actually

constructed. SFWMD cannot accept any as - built certifications for projects

with slopes steeper than 3.5:1.

10 . The Challenged Phrase and the first sen tence of SFWMD Ô s Side

Slope Rule have never changed. The section of the ApplicantÔs Handbook at

issue is the same as it was in March of 1980, except the numbering has

changed to 5.4.2(d).

1 1 . After construction, the ERP originally issued to a developer is

converted to an operational/maintenance ERP and transferred to whatever

entity owns and /or operates the property once it is developed . However,

SFWMD has no inspection and enforcement program for the Side Slope Rule

after construction. There are no monitor ing report requirements for

stormwater ponds. In fact, SFWMD is not aware of any past enforcement

action, including fines or revocation , against a permittee for failing to comply

with the 4:1 side slope ratio post - construction.

1 2 . Persuasive testimony was presented that the 4:1 side slope ratio

around stormwater ponds is difficult to maintain over time due to the natural

forces of erosion. Wind and wave action at the perimeter of stormwater ponds

result in significant change and erosion during the lifetime of a stormwater

pond.

1 3 . SFWMD recognizes the impracticality of maintain ing the 4:1 ratio

over time and does not require pond slopes to be regraded if the SWMS is

effectively operating and if general maintenance is possible. Anthony

Waterhouse , P.E., Pet itioner Ô s expert in ERP engineering practices, testified,

Ñ While I was employed at the Water Management District I can Ô t, I can Ô t

recall a situation where someone was required to adjust the side slope as long

as the [ SWMS ] was functioning as intended and t he entity could carry out the

responsibilities for operation and maintenance. Ò

Jacaranda Ô s Standing

a. Responsibility as the Master Association

14 . Jacaranda contends it has standing primarily because it has

responsibility as the master association for the SWMS within the Ñ common

areas Ò of the development comprised of the 12 HOAs and the commercial

development. As such, Jacaranda contends that it is subject to the

requirement of the ERP and the Side Slope Rule.

1 5 . Jacaranda Ô s responsibilities for stormwate r ponds is set forth the in

the Master Declaration , section 2.11 , which provides :

2.11 Surface Water Management System . It is

acknowledged the surface water management and

drainage system for the subject property is one

integrated system, and accordingly s hall be deemed

a COMMON AREA , and an easement is hereby

created over the entire SUBJECT PROPERTY for

surface water drain drainage, provided however

that such easement shall be subject to

improvements constructed within the SUBJECT

PROPERTY as permitted by controlling

governmental authorities from time to time. The

surface water management and drainage system of

the SUBJECT PROPERTY shall be developed,

operated, and maintained in conformance with the

requirements of the South Florida W ater

M anagement Distric t and/or any other controlling

governmental entity. The MASTER ASSOCIATION

shall maintain as a common expense the entire

surface water management and drainage system

for the SUBJECT PROPERTY , including but not

limited to all lakes, canals, swim areas, rete ntion

areas, culverts, and related appurtenances,

regardless of whether or not same are owned by the

MASTER ASSOCIATION . Such maintenance shall

be performed in conformance with the

requirements of the South Florida W ater

M anagement District, and any other controlling

governmental authority, and an easement for such

maintenance is hereby created. Such maintenance

responsibility on the part of the MASTER

ASSOCIATION shall not be deemed to include the

maintenance of the banks of any lake or canal , or

the maint enance of any landscaping, within any

property which is not COMMON AREA or which is

not otherwise to be maintained by the MASTER

ASSOCIATION pursuant to this declaration.

(Emphasis added).

16. No testimony was offered regarding the property included within the

definition of Ñ common areas. Ò 1 Although Jacaranda said it owned the

stormwater ponds, no documentary evidence, such as deeds or plats, was

admitted supporting that contention. It remains unclear whether Jacaranda

is in fact the property owner of the l and constituting the side slopes of the

stormwater ponds permitted by SFWMD.

17. Most notably, the Master Declaration specifically excludes

maintenance of side slopes from the responsibilities of Jacaranda. This was

confirmed by the testimony of Charles Zu sag, Petitioner Ô s Vice President and

Treasurer , who explained that maintenance and landscaping of the side

slopes of stormwater ponds are the responsibility of the individual HOAs . No

documentary evidence was admitted showing that Jacaranda maintained any

portion of the stormwater pond. According to Mr. Zusag, Ñ The only thing we

ever do is spray for weeds and midges and mosquitos and thin g s like that . Ò

18. Mr. Zusag also testified that regardless of whether the Challenged

Phrase w as removed from the Side Sl ope Rule, Jacaranda would not comply

due to SFWMD Ô s history of non - enforc e ment.

19. No testimony or evidence was introduced to show Jacaranda was

authorized to bring the rule challenge on behalf of any HOA. Neither

SFWMD nor Jacaranda was a ble to produce a ny ERP issued to Jacaranda as

the operating entity. Jacaranda is not the subject of a SFWMD compliance

investigation or any enforcement action regarding the 4:1 side slope.

b. Financial Considerations

20. Jacaranda also argues it has standing to bring this rule challenge

because its financial interests are at stake. On or about December 18, 2018, a

16 - month - old child fell into a n affiliated HOA developmentÔs stormwater

pond , suffered catastrophic injuries, and Jacaranda and the individual HOA

1 Jacaranda used a demonstrative exhibit at the final hearin g to show the location of ponds

alleged to be in the common areas for which Jacaranda has responsibility. However, it was

precluded from coming into evidence because it was not timely produced during discovery to

the opposing parties.

w ere sued. Tha t lawsuit was settled for an undisclosed amount. The

Complaint, Answer , and Order Approving Settlement/Minors Claim for

Padilla v. Jacaranda at Central Park Master Assoc iation , Inc., et al. ,

Case CACE 2004464(12) , 17th Judicial Circuit in and for Broward C ounty,

Florida, were granted official recognition by the undersigned pursuant to an

O rder issued on May 11, 2022. ( See Ex s. D, E, and F to Resp Ô t Ô s May 10, 2022 ,

Joint Mot . for Off . Recognition).

21. Plaintiffs in Padilla asserted multiple theories of liab ility against the

Defendants. Paragraph 25 of the Complaint states:

N otwithstanding the duty undertaken by defendant

JACARANA , it breached its duty to the minor

child, by engaging in the following negligent acts or

omissions:

a. Failing to recognize that the property is accessed

by children.

b . Failing to recognize that the body/bodies of water

on the property would be attractive to a minor

child.

c . Failing to recognize that the body/bodies of water

on the property are a danger and/or probable cause

of injury and/or harm to children.

c [ sic ] . Failure to recognize that due to age, a minor

is not able to understand or acknowledge the

danger of a body of water on the property.

d . Failing to recognize its responsibility to have

safeguards in place on a pro perty containing the

attractive nuisance of a body/bodies of water to

prevent the endangerment of children.

e. Failure to demand its co - governing Homeowner Ô s

Associations place into effec t certain safeguards

and/or preventions of attractive nuisances in t heir

communities.

22. The Complaint also makes multiple references to the planned

community guidelines for the City of Plantation, Broward County, regarding

a 35 percent slope into the body of water which is a danger and falling

hazard. The Complaint also alleges that Jacaranda has vicarious liability for

the negligence of the HOA.

23. Notably absent from the Complaint is any reference to the SFWMD Ô s

Side Slope R ule , which is the subject of this rule challenge.

24. Mr. Zusag opined that if it was not for t he phrase Ñ public safety Ò in the

SFWMD Ô s Side Slope R ule, it would Ñ likely Ò not have been sued. This is

directly contradicted by the Allegations of the Complaint itself. Jacaranda

brings this rule challenge because of its concern for: ( 1) future personal i njury

liability arising from a negligence action; ( 2) the increased costs of insurance;

and ( 3) the costs to repair the side slope to a 4:1 requirement.

2 5 . Because the Padilla matter was settled, there was no finding of

liability by a jury or court. No pe rs o n a l injury lawyer or expert explained the

motivations for settlement. There was no evidence presented that the Ñ public

safety Ò phrase at issue in the instant matter created Ñ per se Ò liability for

Jacaranda.

2 6 . Mr. Z usag testified that after the settlem ent of the personal injury

lawsuit, Jacaranda Ô s property insurance rate rose significantly , and

Jacaranda had difficulty securing insurance . No evidence was presented to

demonstrate any actual correlation between the lawsuit settlement and the

higher insur ance rates.

2 7 . Mr. Zusag testified that the side slopes of some unidentified

stormwater ponds do not presently meet the 4:1 side slope criterion.

Jacaranda presented evidence that it would cost $1,425,000.00 to return the

19,000 linear feet of side slopes at the ten stormwater ponds on properties

owned by its HOA members to the required 4:1 dimension. But Jacaranda is

not going to comply with the 4:1 side slope requirement unless SFWMD

forces it to do so.

2 8 . Jesse Markle, P.E., the Bureau Chief of the SFW MD Ô s E RP and

Environmental Compliance Programs, testified that he is not sure who

SFWMD would take enforcement action against. He would need to

investigate the matter and transfer the permit into the proper operating

entity Ô s name first.

2 9 . Given the excl usionary language of Ma s ter Declaration , section 2.11 ,

regarding lake banks (i.e, side slopes), it is entirely speculative that

Jacaranda could be subject to any future enforcement action for fail ing to

comply with the Side Slope Rule.

30 . Further, if Jaca randa is subject to enforcement, it would need to

comply regardless of whether the Ñ public safety Ò language is in the rule.

Jacaranda has not challenged the 4:1 side slope dimension itself , and it would

remain for the other stated purposes of Ñ water qualit y enhancement and

maintenance . Ò

C ONCLUSIONS OF L AW

31 . DOAH has jurisdiction over the parties and the subject matter of this

proceeding under sections 120.56, 120.60, and 120.57. DOAH has final order

authority in this matter under section 120.56(1)(e).

32 . Any person substantially affected by a proposed rule may challenge

the rule as an invalid exercise of delegated legislative authority.

§ 120.56(1)(a), Fla. Stat. A party Ô s standing in an administrative hearing is,

without question, jurisdictional. Baywoo d Nurseries Co., Inc. v. Dep Ô t of

Health , Case No. 15 - 1694RP, FO at 74 (Fla. DOAH May 27, 2015).

33 . The petitioner must demonstrate: ( 1) the rule or policy will result in a

real or sufficiently immediate injury in fact; and ( 2) their substantial injury is

within the zone of interest to be protected or regulated . Agrico Chem. Co. v.

Dep Ô t of Env Ô t Regul . , 406 So. 2d 478, 482 (Fla. 2d DCA 1981); Jacoby v. Fla.

Bd. of Med ., 917 So. 2d 358, 360 (Fla. 1st DCA 2005). The first prong of the

test examines the degr ee of injury while the second focuses on the nature of

injury. Agrico , 406 So. 2d at 482.

Injury in Fact

3 4 . To meet the first prong (real and immediate injury in fact), the alleged

injury must not be so speculative, remote, or irrelevant that it fails to be of

sufficient immediacy. Vill . Park Mobile Home Ass Ô n v. Dep Ô t of Bus. & Pro .

Regul . , 506 So. 2d 426, 429 (Fla. 1st DCA 1987); Int Ô l Jai - Alai Players Ass Ô n v.

Fla. Pari - Mutuel Ass Ô n , 561 So. 2d 1224, 1226 (Fla. 3d DCA 1990); Fla. Bd. of

Med. v. Fla. Ac ad. of Cosmetic Surgery, Inc ., 808 So. 2d 243, 250 (Fla. 1st

DCA 2002). The alleged injury must not be based on Ñ pure speculation or

conjecture. Ò Ward v. Bd. of Trs. of the Internal Imp . Tr . Fund , 651 So. 2d

1236, 1237 (Fla. 4th DCA 1995); Jacoby , 917 So. 2d at 360. Jacaranda must

either have (a) sustained an actual injury in fact when it filed the petition; or

(b) be in immediate danger of sustaining some direct injury because of

SFWMD Ô s action. See Vill . Park , 506 So. 2d at 430. Jacaranda Ô s evidence

faile d to meet this standard.

3 5 . Jacaranda did not identify an injury it suffered solely because of the

Challenged Phrase. The only Ñ injury Ò admitted into evidence was monetary

in nature and that Jacaranda would be required to comply with the 4:1 side

slope re quirement regardless of whether the Challenged Phrase was present

in the rule.

3 6 . As to its allegations of property ownership as the basis for its

standing, Jacaranda failed to meet the burden of proof to establish what it

owns. While Jacaranda said it ow ned the stormwater ponds, no documentary ,

non - hearsay evidence, such as deeds or plats, was admitted supporting that

contention. Despite three days of testimony, it remains unclear whether

Jacaranda is in fact the property owner of the land constituting th e side

slopes of stormwater ponds regulated and permitted by SFWMD. SFWMD

did not find a permit with Jacaranda Ô s name on it, either as the permittee or

the operating entity.

37. Jacaranda also failed to submit any evidence demonstrating it

assumed responsi bility for the side slopes. No documentary evidence was

admitted showing that Jacaranda maintained any portion of the stormwater

pond. To the contrary, the only testimony provided by Jacaranda was an

admission that it does not maintain the side slopes; but rather the individual

HOAs within the Jacaranda community maintain the stormwater pond side

slopes.

38. The ruling in K.M. v. Florida Department of Health is instructive in

the instant case. 237 So. 3d 1084 (Fla. 3d DCA 2017). K.M., the petitioner,

suffer ed from a heart condition, requiring pediatric care services. Id . at 1086.

The petitioner was a beneficiary of Florida Ô s Children Ô s Medical Services

(ÑCMSÒ) program, which provided financial assistance for necessary medical

services to qualifying children. Id . The Florida Department of Health filed a

notice of a proposed rule for the purpose of repealing a rule that required

pediatric cardiac facilities approved by CMS to comply with certain standards

and submit the forms required by the rule. Id . at 1085. In response, K.M.

filed a petition challenging the validity of the proposed rule, claiming the rule

repeal would result in a reduced quality of care available within the CMS

program. Id .

39. Following testimony, the ALJ found that Ñ K.M. failed to prove the

proposed deregulation of CMS - approved pediatric cardiac facilities would, in

fact, have a real or immediate effect on the quality of care available through

the CMS network. Ò Id . at 1086. As a result, the ALJ determined that K.M.

lacked standing to challen ge the rule repeal and dismissed K.M. Ô s Petition for

lack of jurisdiction. Id . The Third District Court of Appeal affirmed the

dismissal, finding that the record failed to establish a real and immediate

specific injury to the petitioner sufficient to estab lish standing. Id . at 1088.

The court specifically held that Ñ the repeal of the Rule, on its face, does not

take away the benefit of quality cardiac care. Nor is it readily apparent that,

in the absence of the Rule, CMS - approved facilities and clinics will stop

providing quality pediatric cardiac services. Ò Id . Thus, the petitioner failed to

meet its burden in establishing that the repeal of the rule likely would result

in any real and immediate injury to the petitioner, in fact, as such claim was

based sol ely on the speculation and conjecture that the quality of care would

decline as a result of the rule change. Id . at 1089. Similarly, Jacaranda

challenges what may fairly be considered a distinction without a difference.

Merely challenging the phrase Ñ publi c safety Ò will not result in a change to

the substantive standards being applied in the Side Slope Rule and , thus ,

does not create an injury or otherwise confer standing upon a challenger to

the existing rule.

40. Any injury Jacaranda would allegedly suffe r is too speculative or

remote. Future permit action contemplated , but not submitted to the agency

for review , does not satisfy the Ñ real or immediate Ò requirement of Agrico Ô s

injury in fact prong. Suncoast Waterkeeper, Inc. v. Long Bar Point, LLP , Case

No s . 17 - 0 795 and 17 - 0796, RO at 55 (Fla. DOAH Mar. 6, 2018; Fla. DEP

Apr . 27, 2018). The f inal h earing was devoid of any testimony that Jacaranda

held an ERP permit, had a pending ERP application , or that it was

contemplating applying to SFWMD . Thus, Jacaran da failed to identify an

injury sufficient to convey standing . Id.

41 . A petitioner does not have to wait for enforcement action to show it

will suffer an injury of sufficient immediacy. A sufficient and immediate

injury exists if the challenged rule subje cts the petitioner to a penalty. Ward ,

651 So. 2d at 1237. However, in this case, the potential of an enforcement

action against Jacaranda is, at best, unclear. Given Mr. Zusag Ô s testimony

that side slope maintenance is performed by other associations and the

exclusion language for lake and canal bank maintenance contained in Master

Declaration, section 2.11 , has not demonstrated that it is exposed to

enforcement by SFWMD .

42. Additionally, Jacaranda Ô s failure to comply with the Challenged

Phrase would not independently create a penalty for Jacaranda. As

Jacaranda repeatedly stated, it is not challenging the substantive 4:1 side

slope criterion. The removal of the Challenged Phrase would not alleviate the

requirement that any stormwater ponds in Jacaranda Ô s care be graded

consistent with the rule. Instead, the removal of the Challenged Phrase from

the rule would result in absolutely no change to Jacaranda Ô s interests as to

the gravamen of the challenged rule Ï the side slope requirements.

43. Jacaranda claims t hat it was injured by the Challenged Phrase when

it was sued in Padilla , and the Challenged Phrase was used against

Jacaranda throughout the litigation because its side slopes were not

maintained at 4:1. A review of the Complaint shows this is demonstrably

false . The Complaint alleged that Jacaranda violated rule s of the City of

Plantation, not those of SFWMD.

44. I t is not enough for a person to allege they were previously affected by

a rule to show standing. A petitioner must demonstrate that there is a

Ñ present adverse effect Ò of the rule upon them. Fla. Dep Ô t of Offender Rehab.

v. Jerry , 353 So. 2d 1230, 1235 (Fla. 1st DCA 1978). A person may

demonstrate standing based on past injury if he or she is likely to be affected

by the rule again. Jacoby , 917 So . 2d at 360. Jacaranda is not presently

involved in litigation with someone injured by Jacaranda Ô s failure to

maintain the side slopes.

45. To find an injury, Jacaranda strings together several assumptions Ï

someone will again fall into a stormwater pond tha t Jacaranda either owns or

has a duty to maintain, Jacaranda will fail to maintain the pond despite its

duty, the person will sustain significant injuries and bring a personal injury

lawsuit, and Jacaranda would likely be found liable for the injuries, not

because it failed to meet its alleged (but unproved) duty to maintain a pond

with a 4:1 side slope, but instead for the sole reason that the Challenged

Phrase , Ñ public safety , Ò still remains in the rule . This is too tenuous a

connection.

46. Further, the lawsuit against Jacaranda settled before the c ourt could

determine Jacaranda Ô s liability. Therefore, the injury Jacaranda claims is

limited to the claim that the Challenged Phrase somehow caused Ð and may

again cause Ð Jacaranda to be sued, but not that the Ch allenged Phrase

resulted or will result in Jacaranda being held liable. This fact further

attenuates Jacaranda Ô s illusory future injury.

47. This case is similar to Escambia County School Board v Warren ,

where Mr. Warren and a local union for school suppor t staff challenged a

school board rule that would disqualify school board employees who were

convicted of a crime enumerated in section 435.04, Fl orida Stat utes, from

employment. 337 So. 3d 496, 498 (Fla. 1st DCA 2022). These employees were

clearly regulat ed by the rule under the second prong for standing. Even

though Mr. Warren had pled guilty to a felony offense under another statute,

neither Mr. Warren nor any other member of the union could demonstrate

that they would be disqualified from employment by the original or amended

rule , Mr. Warren had been rehired and the school board Ô s decision to deny

back pay to Mr. Warren was not based on the challenged rule. Id . at 498. As a

result, the First District Court vacated the Final Order and dismissed the

petit ioners Ô challenge for lack of standing because Ð much like the matter at

hand here Ð a concrete injury did not exist. Id . at 499, 500.

Zone of Interest

48. As to the second element of the standing test, Ñ the general rule

regarding the zone of interest element of the substantially affected test is

that such element is met where a party asserts that a statute, or a rule

implementing such statute, encroaches upon an interest protected by a

statute or the constitution. Ò Ward , 651 So. 2d at 1238. Ñ In the context of a

rule challenge, the protected zone of interest need not be found in the

enabling statute of the challenged rule itself. Ò Id .; see Fla. Med. Ass Ô n, Inc. v.

Dep Ô t of Pro . Regul . , 426 So. 2d 1112, 1117 Ï 18 (Fla. 1st DCA 1983). In other

words, the petitioner must establish that one or more of its interests is

protected under the statute at issue, not merely that their interests be

furthered by the proceeding. Fla. Horsemen Ô s Benevolent & Protective Ass Ô n,

Inc., v. Dep Ô t of Bus. Pro . Regul . , Case No. 19 - 2860RU (Fla. DOAH Apr. 7,

2020).

49 . Generally, administrative proceedings do not protect against economic

injuries Ñ unless the permitting or licensing statute and/or rules contemplate

consideration of such interest. Ò Barry Roberts & Gloria Meredith Tr . v. Julia

Fondriest, Case Nos. 20 - 2473, 20 - 2474, and 20 - 2535, RO at 262 (Fla. DOAH

Feb. 18, 2021; Fla. DEP Apr. 5, 2021 ) . The caselaw is clear that economic

injuries do not fall within the zone of protection considered under

c hapter 373. Vill. of Key Biscayne v. Dep Ôt of EnvÔt Prot. , 206 So. 3d 788, 791

(Fla. 3 rd DCA 2016); Mid - Chattahoochee River Users v. Fla. Dep Ô t of Env Ô t

Prot. , 948 So. 2d 794, 798 - 99 (Fla. 1st DCA 2006) ; City of Sunrise v. So. Fla.

Water Mgmt. Dist., 615 So. 2d 746, 747 (Fla. 4th DCA 1993) .

50. Jacaranda failed to satisfy Agrico Ô s second prong ; it failed to present

adequate evidence that its Ñ injury Ò was to an interest of the type that is

protected by this type of c hapter 373 proceeding sufficient to meet the zone of

interest prong. See Agrico , 4 06 So. 2d at 478. The only injuries alleged by

Jacaranda was that it filed the petition to avoid being sued in the future for

any injury a third party may suffer and to avoid further increases to its rising

insurance premiums. Avoiding liability for a pers onal injury lawsuit is, at its

heart, an economic injury.

51. Mr. Zusag testified that Jacaranda Ô s insurance premiums increased

after it settled a personal injury lawsuit. Such an injury is clearly economic

in nature is wholly unrelated to the interests pr otected by the rule, i.e. ,

protection of water quality and quantity from impacts related to stormwater,

and is insufficient to convey standing. Furthermore , Mr. Zusag could not say

that deleting the Challenged Phrase would lower Jacaranda Ô s insurance

premi ums in the future.

52. Jacaranda Ô s cost estimate to repair the side slopes was also admitted

into evidence. But, as Jacaranda repeated several times, it was not going to

comply with the 4:1 side slope requirement unless SFWMD forced it to do so.

And furthe r, compliance costs are not within the zone of interest that

c hapter 373 seeks to protect.

53. As the F indings of F act make clear, Jacaranda failed to meet the first

prong of Agrico . No competent evidence was presented to establish that

Jacaranda suffered a concrete, non - speculative injury. Jacaranda Ô s argument

about potential future enforcement actions by SFWMD were purely

conjectur e , and not supported by admissible evidence. Furthermore, to the

extent that Jacaranda Ô s standing was based on financial harm, such injuries

are not within the zone of interest protected under c hapter 373 and , thus ,

was insufficient to establish standing under the second prong in this

proceeding.

54. It is concluded, therefore, that Petitioner lacks standing to challenge

the prop osed rule.

55. Because Petitioners lack standing to maintain this proceeding, the

undersigned is without jurisdiction to rule on the merits of the rule challenge.

See Abbott Labs. v. Mylan Pharms., Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st DCA

2009).

O RDER

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

O RDERED that this case is dismissed for lack of jurisdiction.

D ONE A ND O RDERED this 2nd day of September , 2022 , in Tallahassee,

Leon County, Florida.

S

M ARY L I C REASY

Administrative La w Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of September , 2022 .

C OPIES F URNISHED :

Jennifer D. Brown, Esquire Mary Ellen Winkler, Esquire

(eServed) (eServed)

Marianna R. Sarkisyan, Esquire Thomas I. Mayton, Jr., Esquire

(eServed) (eServed)

Ronald W. Hoenstine, III, Esquire Steven J. Kahn, Esquire

(eServed) (eServed)

Michelle A. Snoberger, Esquire John J. Fumero, Esquire

(eServed) (eServed )

Ann L. Prescott, Esquire Susan Roeder Martin, Esquire

(eServed) (eServed)

Elizabeth M. Fernandez, Esquire Stephen Luis Conteaguero, Esquire

(eServed) (eServed)

Christopher A. Tumminia, Esquire Frederick T. Reeves, Esquire

(eServed) (eServed)

Adri enne E llen Vining, Esquire George T. Reeves, Esquire

(eServed) (eServed)

Megan Albrecht, Esquire Drew Bartlett, Executive Director

(eServed) (eServed)

Michael R oy Bray, Esquire Julia Lomonico, Interim General Counsel

(eServed) (eServe d)

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 pro ceedings are

commenced by filing the original 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 the 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 .