STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOLDEN GATE AREA TAXPAYERS )

ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE No. 89-2100

) COLLIER COUNTY, CITY OF NAPLES, ) and SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

THIS case came to be heard on October 30, 1989, by telephone conference call, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, on the Motion to Dismiss and Supplemental Motion to Dismiss filed on behalf of the South Florida Water Management District.

APPEARANCES

For Petitioner: Joseph L. Grimm, Director

Golden Gate Area Taxpayers Association

3093 52nd Street, S.W. Naples, Florida 33999

For Respondents: Mark G. Lawson, Esquire

Assistant County Attorney Collier County Courthouse

3301 Tamiami Trail East, Bldg. F Naples, Florida 33962-4976 (Collier County)

David W. Rynders, Esquire City of Naples

735 Eighth Street South Naples, Florida 33940 (City of Naples)

Elizabeth D. Ross, Esquire Post Office Box 24680

West Palm Beach, Florida 33416-4680 (S. Florida Water Management Dist.)

STATEMENT OF THE ISSUE

The issue presented by the Motion and supplemental Motion to Dismiss is whether the Golden Gate Area Taxpayers Association (Association) has standing to

maintain this challenge to the applications for consumptive use permits sought by Collier County (County) and the City of Naples (City) from the South Florida Water Management District (District).

PRELIMINARY STATEMENT

This action commenced with the filing of a Petition and Amended Petition on behalf of the Association on February 8, 1989, and March 6, 1989, respectively. On March 31, 1989, the District entered an Amended Statement of Compliance, and on April 15, 1989, the matter was transmitted by the District to the Division of Administrative Hearings. The District filed a Motion in Opposition to the Petition and Amended Petition, in the form of a Motion for More Definite Statement, on May 5, 1989, which was denied by Order filed on July 13, 1989, with the indication that discovery should proceed with regard to all issues, including the Associations's standing.

Thereafter, the District filed its Motion to Dismiss on August 11, 1989, which was considered at a prehearing conference on August 16, 1989. The issue presented in the Motion to Dismiss was whether the Association has standing to maintain this action. Hearing Officer Veronica E. Donnelly, before whom this action was pending prior to her recusal on motion by the Association on October 25, 1989, issued Interrogatories to the Association subsequent to the prehearing conference of August 16, 1989, which sought to clarify and simplify the issues in this case by eliciting information from the Association relative to its standing. On October 13, 1989, the Association filed its Answers to the Hearing Officer's Interrogatories, following which the District filed its Supplemental Motion to Dismiss on October 20, 1989, which again seeks dismissal based upon the Association's lack of standing. The County and City have joined in the District's Motion and Supplemental Motion to Dismiss, which was heard by telephone conference call on October 30, 1989, before the undersigned Hearing Officer, who was assigned this case on October 25, 1989, upon the recusal of Hearing Officer Donnelly. There were several other motions pending in this matter, but they have been rendered moot by this ruling on the District's Motion and Supplemental Motion to Dismiss.

The parties have filed copies of Interrogatories and Requests for Admissions served in this matter, as well as Answers and Replies thereto. Transcripts of various depositions, prehearing conferences and motion hearings have also been filed. The parties have filed witness and exhibit lists. All of these materials, as well as the complete record of pleadings filed in this proceeding have been reviewed, and this Recommended Order of Dismissal is based thereon.

The parties were given ten days following the telephone conference call on October 30, 1989, to submit proposed recommended orders and memoranda, and a ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order of Dismissal.

FINDINGS OF FACT

1. The County filed its application number 08158A with the District for modification of consumptive use permit number 11-00249-W, on or about August 15, 1988.

   
   

2. The City filed its application number 08137-H with the District for modification of consumptive use permit numbers 11-00017-W & 11-00018-W, on or about August 15, 1988.

3. After review, the District staff issued its recommendation to grant the County and City's consumptive use permit applications, with limiting conditions, on or about January 24 and 25, 1989.

   
   

4. The Association filed its Petition and Amended Petition herein on February 8, 1989, and March 6, 1989, respectively, challenging the issuance of these consumptive use permits.

   
   

5. The Association did not allege any basis upon which standing could be established in its Petition or Amended Petition. There is no allegation in either document which describes the Association, alleges its purpose, scope or interest, the number of members in the Association and the number of its members adversely affected by the issuance of these permits, or the reason why the relief sought is appropriate for it to receive. Discovery was allowed to proceed in order to determine if there was a basis, notwithstanding these deficiencies in the Petition and Amended Petition, upon which the Association could establish its standing at final hearing. The District preserved its right to renew its objection to the Association's standing throughout this proceeding, and timely sought a determination thereon, after discovery had been concluded, but before the commencement of final hearing.

   
   

6. This action is specifically maintained by the Association, and not by individual members thereof, or non-member property owners. However, the Association has not asserted that its substantial interests will be adversely affected by issuance of these permits.

   
   

7. The Association is not an existing legal user of water in Collier County.

   
   

8. The Association does not own, lease or otherwise control lands impacted by the permits sought by the County and City.

   
   

9. The membership of the Association varies throughout the year as members pay their annual dues. The current membership of the Association totals 59, according to its Amended Second Response to First Interrogatories from Respondent Collier County filed on October 30, 1989, but it had reached a total membership of approximately 200 at times, according to the President of the Association, as dues are paid each year. The Association alleged in the motion hearing held on October 30, 1989, that 13 of its current members are adversely affected by the proposed issuance of these permits. However, in response to Interrogatories served by Hearing Officer Donnelly, the Association indicated that only 5 members were affected, and in response the District's Interrogatories the Association indicated that 6 of its members were affected. Thus, the Association's estimate of the number of its members who would be affected by issuance of these permits is uncertain, inconsistent, unreliable and lacks credibility. The nature of that adverse effect is stated to be damage to domestic wells, degradation of water quality, and a decline in water quantity, according to affidavits filed by the Association on October 13, 1989, in response to Interrogatories from Hearing Officer Donnelly.

   
   

10. The only provision in the Association's by-laws upon which it relies in this proceeding to support its standing is found at Article V, Section 4, which states, "The corporation reserves the right to seek judicial relief in the furtherance of its aims and purpose." The only provision in its articles of incorporation which have been relied upon by the Association in this regard were cited during the motion hearing on October 30, 1989, and provide generally that

    the Association's purpose is to inform its members about the ongoing activities of government, particularly local government. It is clear that the Association is a taxpayer's association which has taken action in the past regarding tax assessments, and represented the views of its members in matters relating thereto. There is no other allegation or explanation of record regarding the purpose, scope, or interest of the Association, or factors which would support a finding that the relief sought herein is appropriate for the Association to receive on behalf of its members.

    
    

11. The Association's exhibit list and amended exhibit list filed herein do not contain any exhibits which would clarify or explain its purpose, scope or interest in these matters, its total membership and number of adversely affected members, or how the relief which it seeks in this proceeding is appropriate for it to receive.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

13. In considering any Motion to Dismiss, the movant must accept as true the factual allegations set forth in the Petition, and may not raise or consider factual matters outside the petition. Pizzi v. Central Bank and Trust Co., 250 So.2d 895 (Fla. 1971). A Motion to Dismiss should be denied where the allegations of the Petition, if proven, will establish the Petitioner's right to the relief sought. St. Francis Parkside Lodge of Tampa Bay v. Department of Health and Rehabilitative Services, 486 So.2d 32 (Fla. 1st DCA 1986).

    
    

14. The requirements which associations must meet to establish standing have been clearly set forth by the Florida Supreme Court in Florida Home Builders Association, et al., v. Department of Labor and Employment Security, 412 So.2d 351, 353-354 (Fla. 1982), as follows:

    
    

    1. the association must demonstrate that

       a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged agency action;

    2. the subject matter of the challenged action must be within the association's general scope of interest and activity; and

    3. the relief requested must be the type appropriate for an association to receive on behalf of its members.

       
       

       While the matter at issue in Florida Home Builders involved a challenge to an agency rule, the standing requirements established therein for associational standing have been extended to proceedings under Section 120.57(1), Florida Statutes, such as this case. Farmworkers Rights Organization, Inc. v.

       Department of Health and Rehabilitative Services, 417 So.2d 753, 754 (Fla. 1st DCA 1982). Therefore, the Association in this case must meet the three-pronged test set forth in Florida Home Builders in order to show that it has standing to maintain this action.

       
       

15. It is abundantly clear, upon a careful examination of the Petition and Amended Petition filed herein on behalf of the Association, that there are absolutely no allegations in either pleading which would serve as a basis upon

    which the Association could establish its standing at final hearing. This is not a case in which the Petition as amended, taking its allegations as true, can reasonably be read to satisfy the requirements for associational standing.

    Rather, it is a case in which the Petition and Amended Petition do not even address, much less satisfy, the requisite criteria for associational standing.

    
    

16. Recognizing that the Association is proceeding pro se, discovery was allowed to proceed in this matter, notwithstanding the District's timely Motion in Opposition to the Petition, in the form of a Motion for More Definite Statement. The District consistently, and timely, preserved its challenge to the Association's standing in this proceeding by thereafter filing a Motion and Supplemental Motion to Dismiss based upon the Association's lack of standing after discovery had been allowed to proceed, and be completed.

    
    

17. Taking the Association's responses to discovery as true, for purposes of the District's Motion and Supplemental Motion to Dismiss, it is clear that there is no basis upon which the Association could show at hearing that it has standing to maintain this action. The Association failed to even allege that a substantial number off its members would be substantially affected by the issuance of the proposed permits. Actually, evidence adduced through discovery shows that the opposite is true. The Association has indicated a total of from

    5 to 13 members who allege injury, but even if proven at hearing, this would not represent a substantial portion of the Association's total membership. The word "substantial" does not mean a majority of members must be affected, but it does require that more than just a token number must be affected if the action is to be maintained by an association. The Association's position on its total membership varies from 59 to 200, but in all cases, the number of impacted individuals is not a substantial portion of total Association membership. Thus, the Association has failed to satisfy the first prong of the test for associational standing set forth in Florida Home Builders.

    
    

18. The scope and purpose of the permitting process at issue in this case is not within the Association's general scope of interest. The Association is a taxpayer's association, and standing has been recognized for such associations where there is a challenge to the government's exercise of its taxing authority and a special injury exists. North Broward Hospital District v. Fornes, 476 So.2d 154 (Fla. 1985); Boca Raton Mausoleum v. State, 511 So.2d 1060 (Fla. 1st DCA 1987); Waterfront Developers, Inc. v. City of Miami Beach, 467 So.2d 733 (Fla. 3rd DCA 1985). It is clear that the exercise of taxing authority is not at issue in this case. No other information on the Association's purpose was asserted in the Petition, as amended, or provided in response to discovery. The Association's by-laws do not include a statement of purpose, and the President of the Association indicated that it was, in fact, a taxpayer's association. Further, the Association's final witness and exhibit list shows it would make no attempt at hearing to introduce any other documentation on this point. Thus, the Association has also failed on the second prong of the Florida Home Builders test.

    
    

19. The relief requested is not of a type that is appropriate for the Association to request on behalf of its members. Taxpayer's associations concern themselves with alleged excesses in the exercise of taxing authority, but not with issues pertaining to water quality and quantity, or the consumptive use of water. Thus, the Association has failed to meet the third prong of the Florida Home Builders test for associational standing.

RECOMMENDATION

Based upon the foregoing, it is recommended that the District issue a Final Order dismissing the Petition, as amended, which has been filed herein by the Association, based upon the Association's lack of standing.

DONE AND ENTERED this 22nd of November, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 22nd of November, 1989.

APPENDIX

(DOAH Case Number 89-2100)

Ruling on the Respondents' Proposed Findings of Fact:

1. Adopted in Finding 6

2-4. Adopted in Finding 9.

5. Adopted in Finding 10.

COPIES FURNISHED:

Joseph L. Grimm, Director

Golden Gate Area Taxpayers Association 3093 52nd Street, S.W.

Naples, FL 33999

Mark G. Lawson, Esquire Assistant County Attorney Collier County Courthouse

3301 Tamiami Trail East, Building F Naples, FL 33962-4976

Elizabeth D. Ross, Esquire

South Florida Water Management District

P. O. Box 24680

West Palm Beach, FL 33416-4680

David W. Rynders, Esquire City of Naples

735 Eighth Street South Naples, FL 33940

John Wodraska Executive Director

P. O. Box 24680

West Palm Beach, FL 33416-4680

Docket for Case No: 89-002100

Orders for Case No: 89-002100