STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDIANS FOR ENVIRONMENTAL )
ACCOUNTABILITY AND REFORM, ) INC.; CITIZENS FOR SANITY, PASCO ) COUNTY, INC.; and CLAY COLSON, )
)
Petitioners, )
)
vs. ) Case No. 03-0814
)
SOUTHWEST FLORIDA WATER ) MANAGEMENT DISTRICT and PASCO ) COUNTY BOARD OF COUNTY )
COMMISSIONERS, )
)
Respondents. )
)
)
SUPPLEMENTAL RECOMMENDED ORDER
On June 19, 2003, the undersigned entered a Recommended Order of Dismissal in the above-styled case. The Recommended Order of Dismissal was predicated upon the Stipulation of Voluntary Dismissal filed by Petitioners Floridians for Environmental Accountability and Reform, Inc. (FEAR), and Citizens for Sanity, Pasco County, Inc. (CSPC), and further predicated upon Petitioner Clay Colson's (Colson) failure to respond to an Order to Show Cause entered by the undersigned on June 6, 2003. The Recommended Order of Dismissal is specifically incorporated herein by reference. Jurisdiction was retained for the sole purpose of consideration of motions for
attorney's fees and costs which were to be filed no later than June 30, 2003.
On June 27, 2003, one of the Respondents, Southwest Florida Water Management District (District), filed a Motion for Fees and Costs seeking an award of costs and attorney's fees against Colson, who appeared pro se in this matter, and also signed pleadings as the designated representative of the other two Petitioners. The other Respondent, the Pasco County Board of County Commissioners (Pasco County), did not file a motion for sanctions. Colson did not file a response to the District's motion for fees and costs.
The District seeks fees and costs under both Sections 120.569(2)(e) and 120.595(1), Florida Statutes. As to the District's Motion under Section 120.569(2)(e), Florida Statutes, that Motion is resolved by the separate Final Order entered by the undersigned this date. This Supplemental Recommended Order addresses the District's Motion under Section 120.595(1), Florida Statutes.
On January 27, 2003, Colson, FEAR and CSPC filed a Petition for Administrative Hearing objecting to the District's proposed approval of Individual Environmental Resource Permit Application No. 43018792.002 to Pasco County. On February 5, 2003, the District dismissed the Petition with leave to amend for failure to comply with Rule 28-106.201(2), Florida Administrative Code.
On February 24, 2003, an Amended Petition was filed. On March 7, 2003, the District's referral of the matter with a
request to assign an Administrative Law Judge was filed with the Division of Administrative Hearings. The matter was originally assigned to Judge J. Lawrence Johnston.
Along with the Amended Petition, the District on March 7, 2003, submitted its Motion to Dismiss; however, the District requested that Judge Johnston reserve ruling on its motion until Colson's deposition could be taken. Colson was subsequently scheduled for deposition to take place on April 24, 2003. On March 10, 2003, Pasco County filed a Motion to Dismiss the Amended Petition. Unlike the District, Pasco County requested Judge Johnston to rule on its motion prior to Colson's deposition. On March 20, 2003, Judge Johnston issued a Notice of Hearing scheduling this matter for hearing for June 25-27, and June 30, 2003.
On April 2, 2003, Judge Johnston entered his ruling on Pasco County's Motion to Dismiss the Amended Petition.
Judge Johnston denied Pasco County's Motion as to Colson, but granted Pasco County's Motion without prejudice to amend as to the other Petitioners, FEAR and CSPC. On April 22, 2003, Second Amended Petitions were filed and signed by Colson on his own behalf, as well as for FEAR and CSPC.
On April 24, 2003, Colson appeared for deposition. On May 28, 2003, the District filed a Supplemental Motion to Dismiss along with a copy of Colson's deposition, which was attached as Exhibit A to the motion. On June 5, 2003, Judge Johnston entered an Order denying the District's
Supplemental Motion to Dismiss. As to Colson, Judge Johnston in his Order of June 5, 2003, determined:
According to his deposition, Colson continues to assert that the proposed project will affect his use or enjoyment of air, water, or natural resources protected by Chapter 403. The deposition (especially without the deposition exhibits) does not establish beyond dispute that the direct, secondary, and cumulative impacts of the proposed project will not affect Colson's use or enjoyment of air, water, or natural resources protected by Chapter 403.
A motion to dismiss tests the sufficiency of the pleading. Ramos v. Mast, 789 So. 2d 1226, 1227 (Fla. 4th DCA 2001). The Petitions filed by Colson have withstood two motions to dismiss as previously determined by Judge Johnston. Accordingly, it cannot now be concluded under Section 120.595(1)(c), Florida Statutes, that Colson participated in this proceeding for a frivolous or otherwise "improper purpose" as defined by Section 120.595(1)(e)1., Florida Statutes. Moreover, while Colson is a "nonprevailing adverse party" within the meaning of Section 120.595(1)(e)3., Florida Statutes, there is no showing that he has participated in two or more such proceedings involving the
prevailing party, i.e., the District, as contemplated by Section 120.595(1)(c), Florida Statutes.
Accordingly, it is recommended that the District's Motion to award fees and costs under Section 120.595(1), Florida Statutes, be denied. The file of the Division of Administrative Hearings in the above-styled case is hereby closed.
DONE AND ENTERED this 25th day of July, 2003, in Tallahassee, Leon County, Florida.
S
RICHARD A. HIXSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2003.
COPIES FURNISHED:
Clay Colson 4318 Joy Drive
Land O'Lakes, Florida 34639
Margaret Lytle, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34604-6899
E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34604-6899
Jacob D. Varn, Esquire
Fowler, White, Gillen, Boggs & Banker, P.A. Post Office Box 11240
Tallahassee, Florida 32302
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 27, 2003 | Agency Final Order | |
| Jul. 29, 2003 | Agency Final Order | |
| Jul. 25, 2003 | Recommended Order | Petitioners` repeated failure to comply with DOAH orders justifies dismissal. |
| Jul. 25, 2003 | DOAH Final Order | Circumstances did not justify award of attorney`s fees and costs where Petitioner contesting road project withstood consecutive motions to dismiss. |
