STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. OCTAVIO BLANCO, )

)

Petitioner, )

)

vs. ) Case No. 08-3053

)

GPG, INC. and SOUTHWEST )

FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

This matter came before the undersigned on a Motion to Dismiss and for Fees and Costs (Motion) filed by Respondent, GPG, Inc. (GPG), on July 23, 2008. The Motion represents that Respondent, Southwest Florida Water Management District (District), joins in that part of the Motion seeking dismissal of the pleading, but takes no position on the request for fees and costs. The Motion was served by facsimile on Petitioner's counsel on July 23, 2008. However, by Order dated August 11, 2008, Petitioner's counsel was authorized to withdraw. Because no response to the Motion was ever filed by his former counsel, Petitioner was given an additional fifteen days, or until August 26, 2008, in which to file one. On August 26, 2008, Petitioner timely filed his Response.

The Motion seeks dismissal of Petitioner's Request for Administrative Hearing (Request) on two grounds: (1) the matters raised in the Request have been previously adjudicated in prior administrative cases and he is barred by the doctrines of collateral estoppel and res judicata from relitigating those matters, and (2) the Request fails to comply with the requirements of Florida Administrative Code Rule 28-106.201(2) and Section 120.569(2)(c), Florida Statutes (2007). GPG also seeks attorney's fees and/or sanctions under Sections 57.105(5) and 120.569(2)(e), Florida Statutes (2007), on the theory that the Request was filed for an improper purpose, and it seeks fees and costs under Section 120.595(1), Florida Statutes (2007), on the theory that Petitioner participated in this proceeding for

an improper purpose by seeking to harass GPG or delay or increase the costs of the project.

Based upon prior administrative cases in which Petitioner, the District, and related parties have been involved, of which the undersigned has taken official recognition, the lengthy history of this matter can be briefly summarized as follows.

Petitioner owns land in southern Pasco County, Florida, which abuts State Road 54 to the south and lies directly west of two parcels of property for which Environmental Resource Permits (ERPs) have been issued. The larger (and most northern) parcel consists of 266.34 acres and is known as the Ashley Glen parcel. In 2006, the District issued an ERP authorizing the construction of a surface water management system to serve a proposed residential subdivision on the Ashley Glen parcel. See Blanco v. Southwest Florida Water Management District, Entryway Developers, LLC, and Westfield Homes of Florida, Case No. 04- 0003, 2003 (sic) Fla. Div. Adm. Hear. LEXIS 1255 (DOAH Dec. 17,

2004, SWFWMD Jan. 25, 2005)(Blanco I); Blanco v. Westfield Homes of Florida and Southwest Florida Water Management District, DOAH Case No. 05-3274, 2006 Fla. Div. Adm. Hear. LEXIS 144 (DOAH

April 10, 2006, SWFWMD May 30, 2006)(Blanco II), aff'd Blanco v. Southwest Florida Water Management District, et al., 955 So. 2d

573 (Fla. 2d DCA 2007). The ERP approved in Blanco II authorizes the entire filling of a small isolated wetland in the southeast corner of the smaller parcel known as Wetland B-12, whose eastern third would be occupied by Ashley Glen Boulevard, a roadway designed to serve the larger parcel. When constructed, the road will begin on State Road 54 and run northward generally bisecting both the smaller and larger parcels. The second (and most southern) parcel, which is 36.7 acres, was the subject of another ERP application filed on

April 25, 2006. At the conclusion of that proceeding, the District issued ERP Permit No. 43024788.004 authorizing the construction of a surface water management system for a commercial development on that property. See Blanco v. Win- Suncoast, Ltd and Southwest Florida Water Management District, DOAH Case No. 07-3945 (DOAH Feb. 14, 2008, SWFWMD Mar. 25,

2008)(Blanco III). The District's Final Order in Blanco III has been appealed to the Second District Court of Appeal. See Blanco v. Southwest Florida Water Management District, Case No. 2D08-2012.

In this case (Blanco IV), the District has proposed to modify the recently issued ERP Permit No. 43024788.004 to authorize the construction of an on-site surface water management system for a 1.72-acre outparcel, which connects to

the master surface water management system for the commercial development being constructed on the smaller parcel. The terms of the permit provide that all water quantity and water quality treatment is provided by the master system, and the permit does not authorize wetland impacts.

In Blanco I, a determination was made by both the Administrative Law Judge and the District that impacts to Wetland B-12 were unavoidable and that the proposed mitigation was sufficient. In Blanco II, the Administrative Law Judge officially recognized the findings in Blanco I and barred Petitioner from attempting to relitigate matters adjudicated in Blanco I, including the impacts to Wetland B-12, under the doctrines of collateral estoppel and res judicata. This ruling was reaffirmed by the District and later by an appellate court. In Blanco III, the Administrative Law Judge officially recognized the final orders in Blanco I and II and barred Petitioner from relitigating "issues regarding the character and function of Wetland B-12, . . . the alignment and minimization of impacts caused by [Ashley Glen Boulevard], and wildlife studies for wetlands on its property." However, because the applicant in Blanco III proposed new mitigation for the loss of Wetland B-12, the Administrative Law Judge made a determination (which was later approved by the District) that the functional gain from the proposed new mitigation offset the functional loss from its filling.

Here, a fair reading of the Request is that it is based wholly upon "Proposed Impacts to Wetland B12." Based upon the doctrines of collateral estoppel and res judicata, Petitioner is again barred from raising issues and litigating in this case matters that were resolved in the earlier Blanco decisions.

These include allegations concerning the location and construction of Ashley Glen Boulevard, the nature and function of Wetland B-12, the impacts to Wetland B-12, and the adequacy of the master surface water management system for the project. Because the Request only raises issues previously decided in Blanco I, II, and III, the Request should be dismissed.

GPG argues that the dismissal should be with prejudice since it is apparent from the face of the Request that Petitioner will not be able to cure the defects in his pleading. This becomes apparent after considering Petitioner's Response, which states that his primary concern in requesting a hearing in Blanco IV is to subpoena a Department of Transportation employee who will testify that Ashley Glen Boulevard can be constructed without impacting Wetland B-12. His secondary concern is that

both the Administrative Law Judge and the District failed to discover in Blanco I that a violation of Florida Administrative Code Rule 40D-4.101(2) occurred because the application filed on February 7, 2003, was not signed by the actual landowner or landowner's agent. The first issue amounts to an effort to again relitigate the location and construction of Ashley Glen Boulevard and associated impacts to Wetland B-12. Under the doctrines of collateral estoppel and res judicata, Petitioner is barred from retrying these issues. To hold otherwise would allow a third party to litigate the same issue in multiple cases so long as a witness could be found who disagreed with related findings made in the original proceeding. As to the second issue, the time to raise this alleged deficiency in the Blanco I application has long since passed. In view of this, the dismissal should be with prejudice. This ruling renders moot that portion of the Motion seeking dismissal of the Request on the ground it fails to comply with the requirements of a statute and rule. Finally, the final hearing on November 5 and 6, 2008, is canceled.

Section 120.595(1), Florida Statutes (2007), requires that in any proceeding in which the administrative law judge determines that a party participated for an improper purpose, the recommended order shall "so designate and shall determine the award of costs and attorney's fees." Although the parties have not addressed the issue, the statute arguably comes into play even under circumstances such as this where an evidentiary hearing on the merits of the challenge has not been conducted, but rather the outcome is decided on the basis of a motion to dismiss. Section 57.105(5), Florida Statutes (2007), authorizes the entry of a final order for the purpose of awarding "a reasonable attorney's fee and damages" to be paid to the prevailing party by the losing party and his attorney in an administrative action. Section 120.569(2)(e), Florida Statutes (2007), authorizes the entry of a final order awarding sanctions (which may include expenses and attorney's fees) upon a determination that a party has filed a paper for an improper purpose. GPG's Motion for Fees and Costs seeks relief under each of these statutes. Because final disposition of the Recommended Order of Dismissal is required before the request for an attorney's fee, damages, and sanctions can be determined, and because further evidence is necessary before a determination can be made that Petitioner participated in this case for an improper purpose, and if so, the amount of costs and attorney's fees, jurisdiction is retained in this matter for the limited purpose of considering all three claims until after a final disposition of the Recommended Order of Dismissal is made by the

District, if such claims are renewed within thirty days after the entry of a final order. Based on the foregoing, it is

RECOMMENDED that a final order be entered dismissing, with prejudice, Petitioner's Request for Administrative Hearing.

Jurisdiction is retained in this matter, however, for the limited purpose of considering the requests for fees, costs, and sanctions if such requests are renewed within thirty days after a final order is entered.

DONE AND ENTERED this 3rd day of September, 2008, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 3rd day of September, 2008.

COPIES FURNISHED:

Dr. Octavio Blanco 22537 Laureldale Drive

Lutz, Florida 33549-8786

Jason L. Smith, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34604-6899

David Smolker, Esquire

Bricklemyer, Smolker & Bolves, P.A.

500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602-4936

NOTICE OF RIGHT TO FILE 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.

Docket for Case No: 08-003053

Orders for Case No: 08-003053