92-006215 Gloria S. Elder vs. Cargill Fertilizer, Inc.; Fort Meade Mine; And Southwest Florida Water Management District Status: Closed Recommended Order on Thursday, April 29, 1993.

Summary: Party who contests award of permit for improper purpose and then denied discovery and fails to participate in hearing is subject to award of attorney's fees and costs

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA S. ELDER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6215

)

CARGILL FERTILIZER, INC., FORT )

MEAD MINE, and SOUTHWEST FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Bartow, Florida on March 16, 1993,

before Arnold H. Pollock, a Hearing Officer with the Division of Administrative

Hearings.

APPEARANCES

For the Petitioner: Joseph N. Baron, Esquire

3375-A U.S. Highway 98 South

Lakeland, Florida 33803

For the Respondent: Rory C. Ryan, Esquire

Cargill Fertilizer, 200 South Orange Avenue, Suite 2600

Inc., Fort Meade Post Office Box 32801

Mine: Orlando, Florida 32801

Southwest Florida Martin D. Hernandez, Esquire

Water Management Richard Tschantz, Esquire

District: 2379 Broad Street

Brooksville, Florida 34609

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent, Southwest

Florida Water Management District should approve Individual Water Use Permit

Application No. 202297.05 to Respondent Cargill Fertilizer, Inc., for its Fort

Meade Mine operation.

PRELIMINARY MATTERS

By letter dated July 31, 1992, the Respondent, Southwest Florida Water

Management District, (District), advised Respondent, Cargill Fertilizer, Inc.,

(Cargill), that it proposed to approve the Individual Water Use Permit cited

above to Cargill for its use at the Fort Meade Mine outside Fort Meade, Florida.

Thereafter, on August 17, 1992, Mr. Baron, counsel for Mrs. Elder, Petitioners

herein, filed a Petition Requesting Formal Proceedings in opposition to the

proposed approval, and this hearing followed.

The hearing was initially scheduled for February 24 - 26, 1993, but upon

Petitioner's Motion for Continuance, based on counsel's ill health, the hearing

was rescheduled for March 16 - 18, 1993. In his Motion, counsel had requested

continuance until after March 15, 1993.

On February 25, 1993, Mrs. Elder again moved for an additional continuance,

this time citing as the reason therefor, the fact that her counsel had been

suspended from the practice of law for 90 days and she had been unable to find

other qualified counsel to assist her in her preparation for hearing. In the

interim, Mrs. Elder had failed to comply with several discovery requests by

Respondent, Cargill, and on March 2, 1993, after a telephone conference call on

the Motion to Continue and Respondent's motions in support of discovery, the

undersigned denied Petitioner's motion for further continuance and ordered her

to comply with Respondent's discovery requests including submission to

deposition and allowing Respondent's technicians onto her property to take well

water samples.

Thereafter, on March 12, 1993, another telephonic conference call was held

with Respondents and the undersigned. Petitioner had been advised of the call

and had been invited and encouraged to participate, but when an effort was made

to connect her to the conference, she was unavailable. Notwithstanding this,

the hearing was held on Respondents' motions to impose evidentiary sanctions as

a result of her failure to comply with the terms of the undersigned's March 2,

1993 Order, and an Order was entered at the close of the conference call

imposing sanctions prohibiting Petitioner from testifying at the formal hearing

to be held on March 16, 1993 as to any matter discoverable at the deposition at

which she failed to appear. Petitioner was also precluded from presenting any

evidence at the hearing regarding those matters which could have been determined

by her compliance with the discovery requests.

Petitioner appeared at the formal hearing with her counsel, whose

suspension from the practice of law had expired the previous day. Counsel

immediately moved for a continuance based on Petitioner's alleged inability to

secure qualified counsel to represent her during the time of the discovery

controversy, and to prepare for hearing. This motion was denied by the Hearing

Officer. Notwithstanding the Hearing Officer's invitation to remain at the

hearing and participate therein within the parameters defined by the sanctions

Order previously entered, which would have allowed Petitioner to cross examine

all Respondents' witnesses, to call witnesses whose testimony was not the

subject of a dishonored discovery request, to object to Respondent's evidence,

and to argue on the merits of the case, Petitioner and her counsel declined to

participate and left the hearing room, not to return for the remainder of the

hearing. The hearing proceeded without them.

At the hearing, Cargill presented the testimony of Thomas E. Myers, III,

Reclamation and Permitting Manager at the Fort Meade Mine, and Thomas L.

Coulter, Cargill's laboratory supervisor and a certified drinking water operator

in Florida. Cargill also introduced Cargill Exhibits A through M. The District

presented the testimony of Michael K. Balser, a Hydrologist III, and Brian S.

Starford, a Water Use Permitting Supervisor for the District. It also presented

District Exhibit 1.

A transcript was provided, and subsequent to the hearing, the Respondents

jointly submitted Proposed Findings of Fact which have been accepted and are, as

appropriate, incorporated herein.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, Cargill, a

Delaware corporation authorized to do business in Florida which owned and

operated a phosphate mine near Fort Meade, located in Polk County Florida.

Petitioner, Gloria Elder, owns residential property adjoining the Fort

Meade Mine on which she maintains an individual water well for domestic and

other purposes. The Respondent, District, has the responsibility for regulating

the consumption and conservation of ground and surface water within its

jurisdictional limits, including the well in question.

2. For a period prior to December, 1990, Cargill had been operating under

consumptive use permit No. 202297.04, issued by the District, which provided for

average daily withdrawals of 12.0 MGD from wells on its property. In addition

to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit

and surficial aquifer dewatering activities which did not have to be reflected

in the permit but which were lawful uses.

3. In December, 1990, Cargill submitted its application to renew the

existing water use permit with a modification including the 3.3 MGD previously

being used but not officially permitted. No additional water would be drawn

from the permitted wells as the newly applied for 15.3 MGD was the total of the

12 MGD and 3.3 MGD previously permitted and lawfully used.

4. After reviewing the additional information requested of Cargill

pertaining to this application, the District published its Notice of Proposed

Agency Action for approval of the permit. The proposed permit authorizes

withdrawal of the amount requested in the application, 15.3 MGD, the exact same

amount actually withdrawn under the prior permit. As a part of the proposed

permit the District imposed two special conditions. These conditions, 12 and

13, require Cargill to conduct its dewatering activities no closer than 1,500

feet to any property boundary, wetlands, or water body that will not be mined

or, in the alternative, to mitigate pursuant to conditions 12 and 13 any

activities conducted within the 1,500 foot setback.

5. There are no reasonable alternatives to Cargill's request. The mining

process in use here utilizes a water wash of gravel-size phosphate ore particles

out of accompanying sand and clay. The water used for this purpose is recycled

and returned to the washer for reuse. The resulting phosphate ore mix, matrix,

is transported with water in slurry form to the refining plant. This system in

the standard for phosphate mining in the United States. Once at the plant, the

slurry is passed through an amine flotation process where the sand and

phosphates are separated. This process requires clean water with a constant Ph

balance and temperature which can be retrieved only from deep wells.

6. Even though the permit applied for here calls for an average daily

withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD

from deep wells. This is a relatively standard figure within the industry.

Approximately 92 percent of the water used at the site in issue is recycled.

However, recycled water is not an acceptable substitute for deep well water

because it contains matters which interfere with the ability of the chemical

reagents utilized in the process to react with the phosphate rock. Therefore,

the quantity sought is necessary and will support a reasonable, complete mining

operation at the site.

7. The Cargill operation is accompanied by a strenuous reclamation

operation. Land previously mined near the Petitioner's property has been

reclaimed, contoured, re-grassed and re-vegetated. This project was completed

in 1990. No evidence was introduced showing that Cargill's operation had any

adverse effect on the Elders' well. Water samples were taken from that well at

the Petitioner's request in May, 1991 in conjunction with the investigation into

a previous, unrelated complaint. These samples were submitted to an independent

laboratory for analysis which clearly demonstrated that the minerals and other

compounds in the water from the Petitioner's well were in amounts well below the

detection level for each.

8. Only the iron level appeared elevated, and this might be the result of

deterioration of the 18 year old black iron pipe casing in the well. Another

possible explanation is the fact that iron is a common compound in that part of

the state. In any case, the installation of a water softener would remove the

iron, and there is no indication the water would have any unacceptable

ecological or environmental impacts in the area either on or off the site. No

other residents in the area have complained of water quality problems.

9. Petitioner claims not only that Cargill's operation would demean her

water quality but also that its withdrawal will cause a draw down in the water

level in her well. This second matter was tested by the District using the

McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within

the groundwater community. The model was applied to the surficial,

intermediate, and upper Floridan aquifers and indicated the draw down at the

property boundary would be less than one foot in the surficial aquifer and less

than four feet in the intermediate aquifer. The model also showed the draw down

at the Petitioner's well would be less than three feet, which is well within the

five foot criteria for issuance of a consumptive use permit under the

appropriate District rules. This evidence was not contradicted by any evidence

of record by Petitioner.

10. All indications are that the water use proposed is both reasonable and

beneficial, is consistent with the public interest, and will not interfere with

any existing legal use of water.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

12. In a permit application case such as here, the applicant has the

burden to prove its entitlement to the permit. Once it has done so, the

opponent may attempt to establish by competent, substantial and credible

evidence that the applicant has failed to show its entitlement to the permit.

Florida Department of Transportation vs. JWC Company, Inc., 396 So.2d 778. 788-

789 (Fla. 1DCA 1981).

13. The authority to regulate water use permitting in the geographical

area in issue here is delegated to the Southwest Florida Water Management

District by Chapter 373, Florida Statutes, and is implemented in Chapter 40D,

F.A.C..

14. Section 373.223(1), Florida Statutes, and Rule 40D-2.301(1), F.A.C.

require the applicant to provide "reasonable assurances" that the granting of

the permit is for a reasonable and beneficial use, is consistent with the public

interest, and will not interfere with any existing legal use of water. These

assurances need not be absolute guarantees nor must they eliminate all contrary

possibilities. Manasota 88, Inc. vs Agrico Chemical Co., et al., 12 FALR 1391,

(February 19, 1990). See also Florida Keys Citizens Coalition vs. 1800 Atlantic

Developers, et al., 8 FALR 5564 (October 17, 1986) and Cornwell vs Southwood

Properties, Inc., 12 FALR 4973, (December 6, 1990).

15. The evidence of record as presented by the applicant, Cargill, and the

District, goes well beyond meeting the statutory and rule criteria for granting

the permit requested. The modeling demonstrates there would be no inappropriate

draw down impact on the Petitioner's well and water usage, and the laboratory

evidence of water content and quality equally establishes a lack of adverse

impact on the potability, quality, and usability of the water therein. Further,

the amounts requested are reasonable and the purpose of the operation would

certainly appear to be in the public interest. What is also significant here in

that the permit in issue at this hearing calls for no more water than is

currently being lawfully drawn.

16. Petitioner, though given every reasonable opportunity to participate

in the determination process failed to do so and presented no evidence to

support her opposition to the granting of the permit. Consequently, the permit,

as requested, should be granted.

RECOMMENDATION

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

therefore recommended that WUP Permit No. 202297.05 be renewed as modified to

reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain

with the Hearing Officer for the limited purpose of evaluating the propriety of

an assessment of attorney's fees and costs against the Petitioner and the amount

thereof.

RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida.

___________________________________

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April, 1993.

COPIES FURNISHED:

Joseph N. Baron, Esquire

3375-A U.S. Highway 98 South

Lakeland, Florida 33803

Rory C. Ryan, Esquire

200 South Orange Avenue

Suite 2600

Post office Box 1526

Orlando, Florida 32801

Martin D. Hernandez, Esquire

Richard Tschantz, Esquire

2379 Broad Street

Brooksville, Florida 34609

Peter G. Hubbell

Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency which will issue the

Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency which will issue the Final Order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA S. ELDER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6215

)

CARGILL FERTILIZER, INC., FORT )

MEADE MINE, and SOUTHWEST FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondents, )

___________________________________)

FINAL ORDER

This matter came before the undersigned on Respondent, Cargill Fertilizes,

Inc.'s Renewed Motion For Determination Of Improper Purposes And Award of

Attorney's Fees And Costs, arising out of the entry of a Final Order by the

Southwest Florida Water Management District granting Cargill's application for a

consumptive use permit which had been opposed by Petitioner.

APPEARANCES

For the Petitioner: J. N. Baron, Esquire

Palm Gate Center

3375 Building A

Bartow Road South

Lakeland, Florida 33803

For the Respondent: Rory C. Ryan, Esquire

Holland & Knight

200 South Orange Avenue, Suite 2600

Post Office Box 1526

Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent, Cargill

Fertilizer, Inc., is entitled to reimbursement of attorney's fees and costs

under Section 120.57(1)(b)(5), Florida Statutes, for its defense against a

Petition it contends was filed by Petitioner for an improper purpose.

PRELIMINARY MATTERS

On July 31, 1992, Respondent, Southwest Florida Water Management District

published a Notice of Intended Agency Action by which it signified its intention

to issue a water use permit renewal to Respondent, Cargill Fertilizer, Inc., for

its Fort Meade Mine. On August 17, 1992, Petitioner filed an action challenging

the District's intended issuance, alleging that water quality deterioration and

improper mining and reclamation practices were taking place and would be

increased by issuance of the permit.

The matter was referred to the Division of Administrative Hearings for

appointment of a Hearing Officer, and the matter was set for formal hearing.

After at least one continuance at the request of Petitioner, to allow her

counsel to recuperate from a health problem, the matter was rescheduled for

hearing on March 16, 1993 at which time Petitioner appeared with counsel. At

the hearing, Petitioner's counsel reiterated her previously filed request for

further continuance, and when this request was denied, though she was afforded

the opportunity to remain and participate, both Petitioner and her counsel

departed the hearing room and took no part in the subsequent hearing at which

both Cargill and the District presented witnesses and other evidence.

Petitioner submitted no evidence at hearing and failed to provide post-

hearing submittal. Thereafter, on April 29, 1993, the Hearing Officer entered a

Recommended Order recommending that the permit renewal be issued to Cargill and

on May 25, 1993, the District entered its Final Order directing immediate

issuance of Permit No. 202297.05 to Cargill. The District's Final Order further

stipulated that jurisdiction would remain with the Hearing Officer for the

limited purpose of determining the propriety of an assessment of attorney's fees

and costs against the Petitioner, and the amount thereof if appropriate.

No later than April 15, 1993, Cargill submitted its Renewed Motion for

Attorney's Fees and Costs, its Supplement thereto, and Affidavits as to

reasonableness of both attorney's fees and costs claimed by Cargill. Though the

Renewed Motion, the Supplement, and one Affidavit was furnished to Petitioner,

and the Supplement was also furnished to Petitioner's counsel, neither

Petitioner nor counsel filed any pleading or made any other submittal in

opposition to the Motion.

FINDINGS OF FACT

1. In December, 1990, Respondent, Cargill Fertilizer, Inc., applied to the

Southwest Florida Water Management District for a water use permit renewal, No.

202297.05, for its Ft. Mead Mine. After evaluation, on July 31, 1992, the

District published its Notice of Intended Agency Action by which it proposed to

grant the application.

2. On August 17, 1992, Petitioner, Gloria S. Elder, through her attorney,

filed a Petition signed by him challenging the District's intent to issue the

permit alleging that water quality deterioration in her well, and improper

mining and contributory reclamation practices were occurring at the mine site.

This challenge was referred to the Division of Administrative Hearings for

appointment of a Hearing Officer who set the matter for hearing in Bartow on

February 24 - 26, 1993.

3. Immediately after the issuance of the Notice of Hearing, Petitioner,

through her attorney, filed a Motion for Continuance on the basis that her

counsel was to undergo surgery, and requesting a delay until after March 15,

1993. This motion was granted and the hearing rescheduled for March 16, 1993.

4. During the period after the granting of the continuance, the District

and Cargill both attempted discovery in the case, much of which was responded to

with less than full disclosure and some of which was not responded to at all.

For example, the Petitioner's responses to the District's interrogatories were

either answered as "Unknown at this time" or objected to as overly broad. The

District's request for production of documents was not complied with. At no

time did Petitioner seek a Protective Order.

5. In late February, 1993, Petitioner filed for an additional continuance

which was subsequently denied. It was at this time that the Hearing Officer was

first advised that at least a portion of the original continuance was as a

result of the suspension from practice of Petitioner's counsel.

6. Subsequent to the filing of the additional continuance, but before the

entry of the order of denial, Cargill sought, using both routine and

extraordinary notification means, to depose the Petitioner and to run a test of

her well. Petitioner both refused to allow entry onto her property for well

testing, and refused to make herself unavailable for deposition.

7. On March 16, 1993, at the hearing, both Petitioner and her counsel, who

had been reinstated the prior day, were present at the hearing room where

counsel again sought a continuance on the basis that Petitioner had not been

afforded the opportunity to consult with counsel and the conduct of the hearing

would deprive her of due process of law. When, upon questioning by the Hearing

Officer, it was determined that other qualified counsel were in practice in the

general vicinity of Petitioner's residence, the continuance was denied. At

that, both Petitioner and her counsel withdrew from the hearing room and

declined to participate in the hearing which took place in their absence. At

the hearing, both Cargill and the District presented evidence on the

appropriateness of the permit application.

8. On April 1, 1993, Petitioner filed a petition for review of the Hearing

Officer's refusal to grant her motion for further continuance with the Second

District Court of Appeal. The Court denied that petition on April 15, 1993.

9. At no time has Petitioner presented any evidence, either by testimony

or by document, to support her challenge to the District's proposed granting of

Cargill's permit renewal. It is, therefore, found her challenge was filed

merely to harass Cargill, to cause unnecessary delay in its operations, or for

some other frivolous purpose.

10. Cargill has presented evidence in the form of affidavits to support

reasonable attorney's fees and costs for the services rendered in this matter by

its counsel. These affidavits, though furnished to Petitioner on April 14,

1993, have not been challenged. It is found, therefore, that a reasonable fee

for services rendered Cargill herein by its counsel is $10,637.50 for 92.5 hours

of work at $115.00 per hour. Reasonable costs, based on documented evidence of

work done and sums expended, are found to be $1,370.03.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

12. Section 120.57(1)(b)(5), Florida Statutes, provides in part:

... The signature of a party, a party's

attorney, ..., constitutes a certificate that

he has read the pleading, motion, or other

paper and that to the best of his knowledge,

information or belief formed after reasonable

inquiry, it is not interposed for any

improper purposes such as to harass or cause

unnecessary delay or for frivolous purpose or

needless increase in the cost of litigation.

If a pleading or motion is signed in violation

of these requirements, the hearing officer,

upon motion or his own initiative, shall

impose upon the person who signed it, a

representative party or both, an appropriate

sanction, which may include an order to pay

the other party or parties the amount of

reasonable expenses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorney's fee.

13. Cargill seeks an award of attorney's fees and costs relative to its

successful defense against the Petitioner's challenge to the District's intended

award of a water consumptive use permit renewal to it. Specifically, it alleges

that Petitioner's challenge was filed for an improper purpose.

14. Improper purpose has been defined by the statute cited above, and at

Section 120.59(6)(e)1, Florida Statutes, and that definition has been followed

by the First District Court of Appeal in Burke v. Harbor Estates Associates,

Inc., 17 FLW D101, D102 (Fla. 1DCA 1991). The determination of whether a party

participated in a proceeding for an improper purpose is an issue of fact to be

resolved by the trier of fact from the facts and circumstances of the case and

the permissible inferences to be drawn therefrom. See Burke, 17FLW at D103.

15. Here, the evidence shows that Petitioner has complained about

Cargill's activities in the past and Cargill has repeatedly attempted to satisfy

her in the interest of good community relations, apparently going beyond its

reasonable requirements to do so. In the instant situation, Petitioner, through

her attorney, filed a Petition in opposition to the District's intended action

which had the effect of forestalling, at least temporarily, Cargill's ability to

get all the water it needs for its operation. Even when the action was filed,

Petitioner sought a continuance for the asserted reason that her counsel was

medically disqualified. Though, if fact, this was an accurate statement, it was

not the whole reason for the delay and subsequent information reveals that

counsel was unavailable because he had been disciplined by the Bar and suspended

from practice for a period. This information was not, however, made known to

the Hearing Officer at the time of the first request for continuance. Only when

Cargill's discovery requests were filed and the first continuance was running

out, did Petitioner first advise the Hearing Officer of her counsel's

disqualification.

16. Petitioner seeks to rely on the unavailability of her counsel as a

basis for failing to comply with the discovery requests of Cargill and the

District. She relies upon this fact even to justify her failure to participate

in any hearings on discovery set up with the Hearing Officer. This reliance is

not well placed. What appears is a blatant refusal to in any way cooperate with

the hearing process which she initiated and a clear attempt to prevent any

resolution of the issues she raised by her filing of the petition herein. Her

justification is that her counsel was not available, but other qualified counsel

was available, and aside from her written request for additional continuance,

which was denied, at no time did she ever attempt to cooperate with the opposing

parties or the Hearing Officer to attempt to resolve her concerns.

17. Finally, when the hearing was convened, and Petitioner's request for

additional continuance was again denied, Petitioner and her counsel, who had

been reinstated and was present at the hearing room with her, claimed that

because the Hearing Officer had imposed discovery sanctions after her refusal to

participate in discovery and comply with discovery orders of the Hearing

Officer, she was being denied her due process rights, refused to participate

further in the hearing process, and departed the hearing room. In his ruling,

the Hearing Officer made it clear that Petitioner and her counsel would be

permitted to participate in the hearing process to the extent not precluded by

the sanctions order previously entered. This would have permitted her cross

examination of all witnesses for Cargill and the District, the presentation of

evidence in her behalf that was not the subject of prior discovery requests, and

argument on the merits. She chose not to do so and upon completion of the

hearing, a Recommended Order was entered recommending approval of the issuance

of the subject permit renewal. A final Order was subsequently entered doing

just that. Under these circumstances, Petitioner was clearly the non-prevailing

party as defined in Section 120.59(6)(e)3, Florida Statutes.

18. It has been found that the attorney's fees and costs sought by the

movant herein, Cargill, are reasonable, and it appearing that Petitioner's

action was here filed for an improper purpose, they should be awarded.

19. It should be noted that neither Cargill nor the District sought the

award of fees or costs from Petitioner's counsel. Section 120.57(1)(b)(5),

Florida Statutes, authorizes the Hearing Officer to, on his own initiative,

impose on either or both the representative party and the person who signed the

pleading, an appropriate sanction. Here, as was noted, the initial pleading was

signed by Petitioner's counsel, and with the subsequent determination being made

that the challenge was filed for an improper purpose, the sanction is here

imposed on the representative party because of the clear showing, from her

subsequent actions and from the history of her prior relationship with Cargill,

that her initiation of this action was motivated by an improper purpose.

20. There is no evidence at all, however, save counsel's signature on the

initial pleading and his brief appearance at the final hearing, of the extent or

nature of his participation in this matter. Absent a clear showing of his

participation in and either encouragement of or acquiescence in the continuation

of this action, with knowledge of its purpose and character, imposition of

sanctions against him would be improper. See Golden Eagle Distributing Corp. v.

Burrous et al, 801 F.2d 1531, 1540-41 ((th Cir. 1986); Cubic Western Data v.

Department of Transportation and Planning Research Corp., DOAH Final Order in

Case No. 89-6926 BID, H.O. K.N. Ayers, entered January 25, 1990.

It is, therefore:

ORDERED THAT

Petitioner, Gloria S. Elder, pay to the Respondent, Cargill Fertilizer

Inc., Ft. Meade Mine, the sum of Ten Thousand Six Hundred Thirty-seven Dollars

and Fifty Cents, ($10,637.50) as reasonable attorney's fees, and the additional

sum of One Thousand Three Hundred Seventy Dollars and Three Cents, ($1,370.03)

in costs.

DONE and ORDERED in Tallahassee, Florida this 18th day of June, 1993.

___________________________________

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of June, 1993.

COPIES FURNISHED:

Rory C. Ryan, Esquire

Holland & Knight

200 South Orange Avenue

Suite 2600

P.O. Box 1526

Orlando, Florida 32802

Martin D. Hernandez, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Mrs. Kent Elder

Route 1, Box 256-A

Bowling Green, Florida 33834

Joseph N. Baron, Esquire

Palm Gate Center

3375 Building A

Bartow Road South

Lakeland, Florida 33803

Peter G. Hubbell

Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.