96-003826 Friends Of Nassau County, Inc. (4-089-0064ag-Erp) vs. Fisher Development Company And St. Johns River Water Management District Status: Closed DOAH Final Order on Tuesday, October 13, 1998.

Summary: Evidence disclosed attorney created sham corporate party to challenge Department of Environmental Protection permits of competitor. Attorney's fees awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRIENDS OF NASSAU COUNTY, INC., )

)

Petitioner, )

)

vs. ) Case Nos. 96-3826

) 96-3827

FISHER DEVELOPMENT COMPANY, ) 96-3828

ST. JOHNS RIVER WATER MANAGEMENT )

DISTRICT, and NASSAU COUNTY, )

)

Respondents. )

___________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on April 29, 1997, in Jacksonville, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: David A. Theriaque, Esquire

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent, Fisher Development Company:

Marcia Penman Parker, Esquire

Rogers, Towers, Bailey, Jones and Gay

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207

For Respondent, Nassau County:

Michael S. Mullin, Esquire

Nassau County

26 South 5th Street

Fernandina Beach, Florida 32034

For Respondent, St. Johns River Water Management District:

Nancy Barnard, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32078-1429

STATEMENT OF THE ISSUE

The issue in this proceeding is whether, pursuant to

Sections 120.57(1)(b)5 and 120.59(6), Florida Statutes (1995) 1

Respondents Fisher Development Company (Fisher) and Nassau

County (County) are entitled to attorneys fees and costs in

these proceedings.

PRELIMINARY STATEMENT

On August 5, 1996, Petitioner, Friends of Nassau County,

Inc., filed three Petitions for Administrative Hearing. Each

petition raised the issue of whether a permit should be issued

by the St. Johns River Water Management District (District) for

three components of a related project. Specifically, the

permits at issue were: (i) an Environmental Resource Permit for

improvements to U.S. Highway A1A (SJRWMD No. 96-1693);

(ii) A Management and Storage of Surface Waters permit for the

Amelia Island Outlet Center (SJRWMD No. 96-1692); and

(iii) A Wetlands Resource (dredge and fill) permit; SJRWMD

No. 96-1691.

Petitioner claimed standing in each of the three petitions

pursuant to Subsection 403.412(5), Florida Statutes, as a

citizen of the State of Florida upon the filing of a verified

petition. The verification was signed by Ms. Sherry Bevis as

president of Friends of Nassau County, Inc.

The attorneys representing Petitioner were David A.

Theriaque and Charles E. Commander.

The cases were consolidated. The final hearing on the

Petitions was noticed for November 12, 1996.

During the course of the discovery phase of these

proceedings, on September 30, 1996, Respondents filed a Joint

Motion to Dismiss the Petitions with Prejudice and for Sanctions

in each of the cases. Two days later, on October 2, 1996,

Petitioner filed a Notice of Voluntary Dismissal in one of the

proceedings. The file was closed and transmitted to the

District on October 8, 1996. Petitioner filed an Amended Notice

of Voluntary Dismissal, clarifying that Petitioner sought to

dismiss all three petitions. The remaining files were closed,

and those cases were transmitted to the District.

On November 14, 1996, the District entered an Order on

Remand, directing that an order on the Joint Motion to Dismiss

the Petition with Prejudice and for Sanctions be entered. To

that end, an evidentiary hearing was held on April 29, 1997. At

the hearing, Respondents called five witnesses: Christine

Wentzel, Sherry R. Bevis, David Richardson, David Marschka, and

William G. Reddinger. Respondent Fisher Development offered 17

exhibits; Respondent Nassau County, offered one exhibit into

evidence. Petitioner called one witness, John Gerard "Jerry"

Cordy, and offered one exhibit into evidence.

After the hearing, Petitioner and Respondents filed

Proposed Recommended Orders on June 9, 1997.

FINDINGS OF FACT

1. On or about July 17, 1997, the District mailed notices

of its intent to grant an Environmental Resource Permit, a

Management and Storage of Surface Waters Permit and a Wetlands

Resource Permit. The three permits were scheduled to be granted

on August 12, 1996. On August 5, 1996, three petitions

protesting the issuance of the three permits were filed by

Friends of Nassau County, Inc. As a result of these

proceedings, the issuance of the permits was stayed.

2. Ms. Sherry Bevis is the sole officer and director of

Petitioner. Charles Commander, Esquire, initiated the contact

with Ms. Bevis, calling her on the date the various documents

were signed and filed, to ask her to come to his office to sign

the corporate and legal papers. The meeting to incorporate

Petitioner's organization was held in the office of

Charles Commander on August 5 or 6, at which time Ms. Bevis also

signed the petitions which initiated each of these three

proceedings. Ms. Bevis signed the petitions at Mr. Commander's

request. She did not read the petitions prior to signing them

and did not know anything about the project at the time she

signed the verified petitions in opposition to the project.

Similarly, she did not know whether the petitions were true or

untrue and trusted Mr. Commander's judgment in this matter.

3. Even though Ms. Bevis was and is the only officer and

director of Petitioner's corporation, she did not know of any

corporate meetings of the Friends of Nassau County, Inc., that

have been held and has never attended a meeting of the

organization. She does not know if any officers or directors

other than herself have been appointed. She neither had nor has

any control or knowledge of the finances of the corporation or

if the corporation has a bank account. Additionally, Ms. Bevis

did not hire any of the attorneys involved in these proceedings,

nor does she know who hired them or who paid them.

4. In the verified petitions which initiated the

proceedings, Ms. Bevis stated that, as Petitioner, she had

received notice of the District's proposed action by certified

mail on July 17, 1996. At the time she filed the verified

petitions she knew that statement to be false, yet she signed

the verified petitions anyway on the advice of Mr. Commander and

Mr. Theriaque. Ms. Bevis had no involvement in the case other

than as directed by Mr. Commander and Mr. Theriaque.

5. There is no question that the corporation is a sham

corporation created solely for the purpose of bringing this

litigation on behalf of a still-unknown party or parties.

6. Six or eight months prior to July 1996, Mr. Commander

hired Mr. Jerry Cordy, an environmental consultant, to

investigate whether the proposed Amelia Island Outlet Mall site

was suitable for such a project. Mr. Theriaque hired Mr. Cordy

in July 1996 to review the permit applications and technical

staff reports to see if there were any permit-related problems

with the Amelia Island project. Mr. Cordy testified that all of

his work and testimony in these proceedings had been on behalf

of Mr. Theriaque.

7. Both of these investigations took place before Friends

of Nassau County, Inc., had been formed or before the only known

member of the corporation, Ms. Bevis, was aware of the project.

8. However, no additional information was submitted in the

permit application files after the petitions were filed, or

after the review of experts. No modifications were made to the

proposed permits after the petitions were filed. All of the

information needed to review and approve each permit was

contained in the District's files before the District sent out

its notice of intent to grant the permits and a map showing the

improvements Petitioner desired was in the file.

9. An attorney from Mr. Theriaque's office,

Ms. Rebecca O'Hara, reviewed the District permitting files and

requested in late June and early July that documents be produced

from the District's file. The District provided Ms. O'Hara with

its entire file containing all supporting documents so that she

could copy whatever portions of the file she desired.

Ms. O'Hara, in turn, provided whatever documents she copied to

Jerry Cordy, the environmental consultant hired by Mr. Theriaque

for engineering and environmental review of these projects.

However, neither the consultant nor anyone else could testify as

to what Ms. O'Hara looked at, what she copied, or if she

obtained all the materials needed for a complete review.

10. Mr. Cordy and an engineer, Mr. Robert Alderman,

reviewed the application materials supplied to them by

Mr. Theriaque's office and reported their findings to

Mr. Theriaque. However, Mr. Cordy only reviewed files provided

to him by Mr. Theriaque's office, and he does not know if he and

Mr. Alderman were given the complete files to review. Mr. Cordy

could not testify as to whether Mr. Alderman had performed any

modeling or engineering calculations before rendering his

opinion, and it is unknown if the review was sufficient. Given

that from the inception these proceedings were based on a sham

party, the credibility of Mr. Cordy's opinion is given little

weight especially since no changes were made to the permit

application after July prior to this review taking place, and

the improvements the experts said should be included were

clearly included on the project plan drawings.

11. Mr. Commander works for the law fir m of Foley and

Lardner. Steve Pajcic is one of the partners at the law firm,

Pajcic and Pajcic, where Ms. Bevis has been employed as a

bookkeeper since 1979. The Foley and Lardner firm represent the

First Coast Center, a competitor to the Amelia Island Outlet

Mall. The Pajcic and Pajcic law firm pension plan has a

financial interest in the First Coast Center.

12. On July 22, 1996, and on August 6, 1996, Mr.

Theriaque, representing an unnamed client, wrote to the State

Department of Community Affairs (DCA) stating that the Amelia

Island Outlet Mall is a Development of Regional Impact (DRI)

which should be required to undergo a DRI review. Mr. Theriaque

requested that the DCA require Fisher Development to obtain a

DRI binding letter of interpretation as to whether the project

was a DRI. The binding letter of interpretation process would

have affected the Amelia Island Outlet Mall project through

increased costs and delayed time schedules. On January 8, 1997,

DCA notified Fisher Development Company, through its attorney,

that the proposed mall is not anticipated to have substantial

impacts on regional resources or public facilities, and that a

DRI binding letter of interpretation would not be required.

Additional attorneys' fees of $8,059 were incurred as a result

of the DCA investigation.

13. Mr. Theriaque was hired by someone. However, he was

not hired by Ms. Bevis, the president, sole officer, sole

director, sole representative, and apparently sole member of

Friends of Nassau County, Inc. Nor was Mr. Commander hired by

Ms. Bevis. Thus, the true client in these proceedings remains

unknown. To this date, Mr. Theriaque has declined to disclose

the identity of the real client behind these proceedings.

14. For business purposes, it was importan t that Fisher

Development Company obtain the three permits prior to an

industry convention held in October 1996. The October

convention is an industry meeting at which potential tenants are

informed of proposed outlet mall projects, and those tenants

make decisions as to their leasing plans for the coming year.

By having the permits at the October convention, Fisher would

have been able to dispel statements made by First Coast Center

agents that the Amelia Island Outlet Mall was unable to obtain

necessary permits. The First Coast Center agents had also told

Fisher Development Company's prospective tenants that the Amelia

Outlet Mall was a DRI and would require two years to obtain

approvals.

15. The delays in obtaining the three permits

competitively disadvantaged the Amelia Island Outlet Mall

project. Fisher has spent approximately $650,000 on the Amelia

Island Outlet Mall project, but at this time, even though the

permits have been issued, Fisher is only evaluating how to

proceed on the project. First Coast agents continue to tell

Fisher's prospective tenants that the Amelia Island Outlet Mall

will be delayed several years in obtaining its permits.

16. At the time the three petitions were filed in August

1996, Fisher advised its attorney that it still wanted to obtain

the permits by October 1996. Fisher was concerned about the

possible adverse effects from permitting delays and considered

those effects in giving its directions to its attorney in how to

respond to these proceedings. Fisher incurred attorneys fees of

$48,456, and consulting fees of $10,502, in responding to these

proceedings. Finally, costs of $2,475 were incurred as a result

of these three proceedings.

17. The attorneys' fees and costs incurred by Fisher in

responding to these proceedings are reasonable and consistent

with the practice of law in Northeast Florida.

18. The attorneys' fees and costs incurred by Nassau

County in responding to these proceedings were $2,994. 2 Likewise

these fees and costs are reasonable.

19. In addition to filing verified petitions which the

purported Petitioner's representative and her attorneys knew to

contain false statements, Petitioner's attorneys filed other

motions and engaged in other actions designed to delay ultimate

permit issuance. On the day before rescheduled depositions were

to take place, September 18, 1996, Petitioner filed motions for

protective orders, seeking to have the depositions further

delayed. At least 32 times during the deposition of

Petitioner's corporate representative, Ms. Bevis, Petitioner's

attorney improperly instructed Ms. Bevis to not answer relevant

questions, based solely on the grounds of relevance.

Respondents subsequently sought and were granted the right to

have the questions answered. However, Notices of Voluntary

Dismissal were filed before the continued depositions were held.

20. Respondents also sought to conduct discovery in the

proceedings through document production requests. During a

telephone hearing held on September 23, 1996, Petitioner was

ordered to produce the documents no later than October 7, 1996.

On September 27, 1996, Petitioner filed a motion to stay all

proceedings.

21. On September 30, 1996, Res pondents filed motions for

dismissal and sanctions, citing the information discovered in

Ms. Bevis' deposition, the facts of which are as set forth

above.

22. On October 2, 1996, Petitioner filed a Notice of

Voluntary Dismissal in the proceedings related to the Management

and Storage of Waters Permit.

23. On October 9, 1996, Respondents sought to have

Petitioner produce the documents required by prior order.

Instead, Petitioner filed notices of voluntary dismissal in the

remaining cases on October 11, 1996. 3

24. Until the notices of voluntary dismissal were filed,

all of Petitioner's pleadings and actions were of the type which

would delay the proceedings and ultimate issuance of the permit.

These are the three verified petitions, motions for protective

order in the taking of depositions, motions to stay the

proceedings, improper instructions to a deposed witness to not

answer relevant questions based solely upon the grounds of

relevance, and refusal to produce ordered documents.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

26. In a proceeding conducted pursuant to Subsection

120.57(1), Florida Statutes, a prevailing party is entitled to

recover attorneys fees and costs from a non-prevailing adverse

party where the Administrative Law Judge determines that the

non-prevailing adverse party participated in the proceeding for

an "improper purpose." Subsections 120.59(6)(a)-(b), Florida

Statutes (1995).

27. "Improper Purpose" is defined to mean:

Participation in a proceeding pursuant to

§ 120.57(1) primarily to harass or to cause

unnecessary delay or for frivolous purpose

or to needlessly increase the cost of

licensing or securing the approval of an

activity.

Section 120.59(6)(e)1, Florida Statutes (1995).

28. "Non-prevailing adverse party" is defined to mean:

A party that has failed to have

substantially changed the outcome of the

proposed or final agency action which is the

subject of a proceeding. In the event that

a proceeding results in any substantial

modification or condition intended to

resolve the matters raised in a party's

petition, it shall be determined that the

party having raised the issue addressed is

not a "nonprevailing adverse party."

Section 120.57(6)(e)3, Florida Statutes (1995).

29. It is un-controverted that Petitioner failed to

substantially modify or condition the permits at issue in these

three proceedings. Therefore, Petitioner is a "non-prevailing

adverse party" in each of the three proceedings. See Department

of Transp. V. J.W.C. , 396 So. 2d 778, 789 (Fla. 1st DCA 1991).

30. As the parties asserting the affirmative of a

position, the burden of proof that Petitioner participated in

the three proceedings for an improper purpose falls upon

Respondents. Department of Transp. V. J.W.C., Inc. , 396 So. 2d

778, 786-87 (Fla. 1st DCA 1981); Balino v. Department of Health

and Rehabilitative Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA

1977). For purposes of Subsection 120.59(6), Florida Statutes,

"improper purpose" requires a finding that the Petitioner

primarily participated in the proceeding: (i) to harass; (ii)

cause unnecessary delay; (iii) for frivolous purpose; or (iv)

needlessly increase the cost of licensing or securing the

approval of an activity. It is un-controverted that the effect

of the petitions and the subsequent proceedings was to delay

issuance of the permits and to threaten the viability of the

projects. The delay was unnecessary in that no environmental or

other public benefit was gained as a result of the proceedings.

No changes were made in the project design or the permit

conditions. Respondent Fisher Development Company suffered

substantial financial expense responding to the petitions and in

proceeding to undertake discovery as quickly as possible.

Respondent Nassau County likewise suffered unnecessary expense

in responding to the petitions.

31. In determining whether an "improper purpose" has been

present, it is appropriate to consider the circumstantial

evidence at hand. Procacci Commercial Realty, Inc. v.

Department of Health and Rehabilitative Servs. , 690 So. 2d 603,

n. 9 (Fla. 1st DCA 1997) (citing Pelliter v. Zweifel , 921 F.2d

1465, 1515 (11th Cir. 1991)). Here, attorneys representing an

unknown client drafted three petitions objecting to

environmental permits for a commercial project as well as

documents forming a sham corporation. One of those attorneys,

who also represents a competitor of the commercial project, then

asked someone to serve as the sole officer (and apparently sole

member) of that sham corporation. It happens also that the sole

officer is employed by one of the competitor's investors. The

employee signed the petitions and corporate documents with no

knowledge of the facts surrounding the petitioner. Indeed, it

was demonstrated that at least one fact contained in the

petitions were false at the time the petitions were signed. The

petitions and subsequent proceedings served to delay issuance of

the permits sufficiently to allow the competitor to gain a

competitive advantage. All of this is un-controverted evidence

put on by Respondent's at hearing. Without question the

Petitioner participated in the underlying proceedings for an

improper purpose in violation of Subsection 120.59(6), Florida

Statutes (1995).

32. The burden then shifts to Petitioner to demonstrate by

evidence of equal or greater weight that it did not participate

in the proceedings for an improper purpose. J.W.C. , 396 So. 2d

at 789. The Petitioner is required to present evidence of

equivalent or greater quality and prove the truth of the facts

alleged. See J.W.C., Inc. , 396 So. 2d at 789. The only

evidence presented by Petitioner at hearing related to whether

"reasonable inquiry" into the allegations had been made. This

evidence is not credible and does not refute the evidence of

improper purpose. Moreover, the evidence does not demonstrate

that the inquiry made was itself reasonable and not a sham as

was the corporate party in this case.

33. Therefore, for purposes of Subsection 120.59(6),

Florida Statutes, it is concluded that Petitioner participated

in the proceedings for an improper purpose, and that Respondents

Fisher Development Company and Nassau County are entitled to

recover costs and reasonable attorneys fees from Petitioner,

Friends of Nassau County, Inc.

34. Respondents have also requested that sanctions be

imposed against Petitioner and Petitioner's attorneys pursuant

to Subparagraph 120.57(1)(b)5, Florida Statutes, which states:

All pleadings, motions, or other papers

filed in the proceeding must be signed by a

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

qualified representative. The signature of

a party, a party's attorney, or a party's

qualified representative constitutes a

certificate that he or she has read the

pleading, motion, or other paper and that,

to the best of his or her knowledge,

information and belief formed after

reasonable inquiry, it is not interposed for

any improper purpose, such as to harass, or

cause unnecessary delay or for frivolous

litigation. If a pleading, motion, or other

paper is signed in violation of these

requirements, the hearing officer, upon

motion or the officer's own initiative,

shall impose upon the person who signed it,

a represented 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

fees.

Section 120.57(1)(b)5, Florida Statutes (1995).

35. A frivolous purpose "is one which has little

significance or importance in the context of the goal of

administrative proceedings." Mercedes Lighting and Elec.

Supply, Inc. v. State, Department of General Servs. , 560 So. 2d

272, 278 (Fla. 1st DCA 1990).

36. If a reasonably clear legal justification can be shown

for the filing of the paper in question, improper purpose cannot

be found, and sanctions are not appropriate. Id. In the

absence of direct evidence of the party's and the counsel's

state of mind, the court will impose an objective standard and

determine whether "an ordinary person standing in the party's or

counsel's shoes would have prosecuted the claim." Procacci

Commercial Realty, Inc. v. Department of Health and

Rehabilitative Servs. , 690 So. 2d 603, 608, n. 9 (citing

Pelliter v. Zweifel , 921 F.2d 1465, 1515 (11th Cir. 1991).

37. In the instant case, no reasonably c lear legal

justification has been shown for the filing of the three

petitions which initiated these proceedings. Petitioner's lone

representative had no knowledge of the basis for the petitions

and indeed signed the petitions knowing at least one of the

statements in the petitions was false. In so signing, she

relied entirely upon her attorneys. It is unknown who the

attorneys truly represent. However, it is known that one of the

attorney's clients, First Coast Center, gained a competitive

advantage by delaying the issuance of the permits for the Amelia

Island Outlet Mall and the road improvements. It is also known

that the other attorney on behalf of an "unnamed client" wrote

adverse letters regarding the Amelia Island Outlet Mall to DCA,

further delaying the mall's development. Petitioner's lone

representative at no time acted in the capacity of a client, and

indeed Petitioner's organization was not formed at the time the

DCA investigation was initiated. Moreover, the evidence did not

demonstrate reasonable inquiry by the attorneys or facts which

would justify a reasonable legal or factual basis for these

proceedings.

38. The actions of the attorneys demonstrate a purpose

that is improper in the context of the goal of administrative

proceedings. Administrative proceedings are designed to allow a

third party who has standing either as a substantially affected

party or as a citizen pursuant to the provision of Section

403.412, Florida Statutes, to influence an agency's actions and

require that a permit comply with all permitting criteria. By

setting up and representing a sham client, the attorneys have

prevented this tribunal from determining whether the hidden

client has any legal standing. The entire fabric and fairness

of an administrative proceeding is undermined by such attorney

activities.

39. Through such actions, the agency involved is prevented

from determining the true scope of the complaints brought to

issue by the Petitioner, and the permit applicants are prevented

from discovering what design or operation modifications could be

made to make the project acceptable. If the true parties to the

proceedings are unknown, true discovery cannot be conducted, and

the possibilities for settlement on the issues are vitiated.

40. For those r easons, sanctions are imposed pursuant to

Subparagraph 120.57(1)(b)5, Florida Statutes (195), jointly and

severally against Petitioner, Attorney David A. Theriaque,

Attorney Charles E. Commander and Sherry Bevis. These sanctions

shall be imposed in the amount of the attorneys' fees and costs

incurred by Fisher and the County for responding to the three

petitions, and for purposes of assessing fees and costs for

sanctions through the date of the evidentiary hearing on the

Motion. Fisher's fees and costs are $50,931.93, 4 plus additional

fees and costs associated with conducting the evidentiary

hearing and filing post-hearing pleadings. Nassau County's fees

and costs are $2,994, plus additional fees and costs associated

with conducting the evidentiary hearing.

ORDER

Based upon the findings of fact and conclusions of law, it

is,

ORDERED:

That Petitioner, Friends of Nassau County, Inc., Attorney

David A. Theriaque, Attorney Charles E. Commander, and

Sherry Bevis be jointly and severally ordered to pay Respondents

Fisher Development Company and Nassau County, Inc.'s attorneys

fees and costs incurred as a result of these three proceedings.

Petitioner is ordered to pay pursuant to the provisions of

Sections 120.57(1)(b)5, and 120.59(6), Florida Statutes (1995),

and Attorneys Theriaque, Attorney Commander, and Sherry Bevis

are ordered to pay pursuant to the provisions of Section

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

DONE AND ORDERED this 13th day of October, 1998, in

Tallahassee, Leon County, Florida.

_ __________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of October , 1998.

ENDNOTES

1 / Section 120.57(1)(b)5, Florida Statutes (1995), has been

revised by Section 120.569(1)(c), Florida Statutes (1996).

Section 120.59(6), Florida Statutes (1995) was revised in

Section 120.595(1), Florida Statutes (1996). See Procacci

Commercial Realty, Inc. v. Dept. of Health and Rehabilitative

Services , 690 So. 2d 603, 605-608 (Fla. 1st DCA 1997). The

revisions became effective October 1, 1996, after these

proceedings were initiated and are not applied retroactively.

See Young v. Altenhaus , 472 So. 2d 1152 (Fla. 1985); Leapai v.

Milton , 595 So. 2d 12, 15 (Fla. 1992); Life Care Centers v.

Sawgrass Care Center , 683 So. 2d 609 (Fla. 1st DCA 1996).

2 / County Exhibit 1 showed an entry of September 23, 1996 of 0.5

hours at $150 per hour; Nassau County agreed at hearing that the

rate should have been $125 per hour. Therefore, from the total

of $3,007.50, the difference of $13.50 has been subtracted.

3 / As late as March 17, 1997, six weeks before the evidentiary

hearing on these matters, Fisher sought to have the documents

produced, but Petitioner declined.

4 / Attorney fees for the DRI process are not awarded since they

were not related to the underlying proceeding.

COPIES FURNISHED:

David A. Theriaque, Esquire

909 East Park Avenue

Tallahassee, Florida 32301

Marcia Penman Parker, Esquire

Rogers, Towers, Bailey

Jones and Gay

Suite 1500

1301 Riverplace Boulevard

Jacksonville, Florida 32207

Michael S. Mullin, Esquire

Nassau County

26 South 5th Street

Fernandina Beach, Florida 32034

Nancy Barnard, Esquire

St. Johns River Water

Management District

Post Office Box 1429

Palatka, Flroida 32078-1429

Henry Dean, Executive Director

St. Johns River Water

Management District

Post Office Box 1429

Palatka, Florida 32178-1429

NOTICE OF RIGHT TO APPEAL

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 the 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.