Petitioner: PELICAN BAY FOUNDATION, INC.
Respondent: COLLIER COUNTY WATER AND SEWER DISTRICT AND SOUTH FLORIDA WATER MANAGEMENT DISTRICT
Judges: J. LAWRENCE JOHNSTON
Agency: Water Management Districts
Locations: Naples, Florida
Filed: Feb. 28, 2008
Status: Closed
Recommended Order on Thursday, March 20, 2008.
Latest Update: May 22, 2008
Summary: An Recommended Order of Dismissal because the alleged injury was not immediate enough for standing.
RECOMMENDED ORDER DISMISSALSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PELICAN BAY FOUNDATION, INC.,
Petitioner,
vs.
COLLIER COUNTY WATER AND SEWER DISTRICT and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Respondents. | ) ) ) ) ) ) ) ) ) ) ) ) |
Case No. 08-1063 |
RECOMMENDED ORDER DISMISSAL
On February 28, 2008, the South Florida Water Management District (SFWMD) referred to the Division of Administrative Hearings (DOAH), among other things, an Amended Petition for Administrative Hearing filed by Pelican Bay Foundation, Inc., and Collier County's Motion to Dismiss Complaint [sic], which is based primarily on lack of standing. Petitioner filed a Response in Opposition, and SFWMD joined in all of the Motion to Dismiss except for one paragraph.
On March 11, 2008, the Collier County Water and Sewer District (the County) filed a Motion for Official Recognition of circuit court filings, which SFWMD did not oppose but Petitioner did oppose. Petitioner subsequently filed a Response in Opposition on grounds of relevance.
A telephonic hearing was held on the pending motions on March 14, 2008. All the written and oral arguments have been considered.
First, the County's Motion for Official Recognition is granted, although the circuit court filings are only marginally relevant.
As to the County's Motion to Dismiss, Petitioner's standing is based on alleged injury-in-fact that is not "of sufficient immediacy." § 403.412(5), Fla. Stat. (2007). See also Agrico Chem. Co. v. Dept. of Environmental Reg., 406 So. 2d 478, 482 (Fla. 2d DCA 1981). To the extent that sufficiently immediate injury-in-fact might be alleged, the alleged injury-in-fact is not "of the type and nature intended to be protected" by the governing statutes and rules, in particular Section 373.250(2)(c), Florida Statutes. Id. For that reason, the Motion to Dismiss is granted. Under Section 120.569(2)(c), Florida Statutes, dismissal should be with prejudice at this time, Petitioner already having been given leave to amend once, and the defect in the pleading not being curable by further amendment.
For the foregoing reasons, it is
RECOMMENDED that SFWMD dismiss the Amended Petition for Administrative Hearing with prejudice.
RECOMMENDED this 20th day of March, 2008, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON 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 20th day of March, 2008.
COPIES FURNISHED:
Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33416-4680
Robert D. Pritt, Esquire Roetzel & Andress, LPA Trianon Centre, Third Floor 850 Park Shore Drive Naples, Florida 34103-3587
Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert, P.A.
101 East Kennedy Boulevard, Suite 3400 Tampa, Florida 33601-2350
Jennifer Bokankowitz, Esquire
South Florida Water Management District 3301 Gun Club Road, Mail Stop Code 1410 West Palm Beach, Florida 33406
Docket for Case No: 08-001063
| Issue Date |
Proceedings |
|
May 22, 2008 |
Final Order filed.
|
|
May 22, 2008 |
South Florida Wayer Management District`s Response to Pelican Bay Foundation, Inc.`s Exceptions to the Recommended Order filed.
|
|
May 22, 2008 |
Collier County`s Response to Petitioner`s Exceptions to Recommended Order of Dismissal filed.
|
|
Apr. 03, 2008 |
Exceptions to Recommended Order of Dismissal filed.
|
|
Mar. 20, 2008 |
Recommended Order of Dismissal. CASE CLOSED.
|
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Mar. 17, 2008 |
Notice of Availability filed.
|
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Mar. 14, 2008 |
CASE STATUS: Motion Hearing Held. |
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Mar. 13, 2008 |
Petitioner`s Response in Opposition to Collier County`s Motion for Official Recognition filed.
|
|
Mar. 11, 2008 |
Collier County`s Motion for Official Recognition filed.
|
|
Mar. 11, 2008 |
Petitioner`s First Set of Interrogatories to South Florida Water Management District filed.
|
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Mar. 11, 2008 |
Notice of Service of Petitioner`s First Set of Interrogatories to South Florida Water Management District filed.
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Mar. 11, 2008 |
Notice of Service of Petitioner`s First Set of Interrogatories to Collier County filed.
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Mar. 11, 2008 |
Petitioner`s First Request for Production of Documents to Collier County filed.
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Mar. 07, 2008 |
Notice by Respondent South Florida Water Management District of Partial Joinder in Respondent Collier County`s Motion to Dismiss Complaint filed.
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Mar. 07, 2008 |
Amended Joint Response to Initial Order filed.
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Mar. 07, 2008 |
Notice of Telephonic Hearing filed.
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Mar. 06, 2008 |
Joint Response to Initial Order filed.
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Mar. 05, 2008 |
Notice of Service of Collier County`s First Set of Interrogatories to Petitioner filed.
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Mar. 05, 2008 |
Collier County`s First Request for Production of Documents to Pelican Bay filed.
|
|
Mar. 04, 2008 |
Petitioner`s Response in Opposition to Collier County`s Motion to Dismiss filed.
|
|
Feb. 28, 2008 |
Collier County`s Motion to Dismiss Complaint filed.
|
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Feb. 28, 2008 |
Collier County`s Petition for Intervention into Formal Administrative Proceedings Pursuant to Sections 120.569 and 120.57(1), Florida Statutes filed.
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Feb. 28, 2008 |
Notice of Appearance (filed by E. de la Parte, Jr.).
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Feb. 28, 2008 |
Amended Petition for Administrative Hearing filed.
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Feb. 28, 2008 |
Order Dismissing Petition with Leave to Amend filed.
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Feb. 28, 2008 |
Petition for Administrative Hearing filed.
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Feb. 28, 2008 |
Proposed Agency Action filed.
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Feb. 28, 2008 |
Order on Amended Petition`s Compliance with Requisite Rules, Authorizing Transmittal to the Division of Administrative Hearings, and Notice of Preservation of Record filed.
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Feb. 28, 2008 |
Agency referral filed.
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Feb. 28, 2008 |
Initial Order.
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Orders for Case No: 08-001063
| Issue Date |
Document |
Summary |
|
May 15, 2008 |
Agency Final Order
|
|
|
Mar. 20, 2008 |
Recommended Order
|
An Recommended Order of Dismissal because the alleged injury was not immediate enough for standing.
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