The Issue The issue in this case is the amount of attorney's fees and costs Petitioner, Florida Cities Water Company, should be awarded pursuant to Section 120.595(5), Florida Statutes (Supp. 1996).
Findings Of Fact The Parties. Petitioner, Florida Cities Water Company (hereinafter referred to as "Florida Cities"), is a utility providing water and wastewater service to two communities in Florida. Respondent, the Florida Public Service Commission (hereinafter referred to as the "PSC"), has exclusive jurisdiction over water and wastewater service utility providers in Florida, including the determination of rates that utility providers may charge for their services. Section 367.011, Florida Statutes (1995). Florida Cities' 1992 Approved Rate. In arriving at an allowable rate which a water and wastewater service utility may charge, the PSC must determine, among other things, the amount of a utility's plant that is considered "used and useful." Section 367.081(2)(a), Florida Statutes (1995). In determining the amount of Florida Cities' plant that was considered "used and useful" in 1992, the PSC determined the amount of investment costs in its North Fort Myers, Florida, plant which was potentially recoverable. Recoverable costs are limited to those expenditures which are considered to be for the public benefit. Florida Cities' recoverable costs as of 1992 were determined to total $6,343,868.00. The amount of Florida Cities' recoverable costs was then multiplied by a fraction, the numerator of which was the average daily flow of the plant (calculated on a peak month basis) and the denominator of which was the capacity of the plant (this fraction is hereinafter referred to as the "Capacity Ratio"). In 1992, the average daily flow of the plant on a peak month basis was determined to be in excess of 1.0 million gallons per day (hereinafter referred to as "MGD"), and the capacity of the plant was determined to be 1.0 MGD. Therefore, the Capacity Ratio was determined to be 100 percent and Florida Cities' recoverable costs of $6,343,868.00 was determined to be 100 percent "used and useful." Florida Cities' "rate base" for 1992 was, therefore, determined to be $6,343,868.00. Florida Cities' 1995 Application for Rate Increase and the PSC's Reduction of Rate Base. Subsequent to the determination of Florida Cities' rate base and its approved utility rates in 1992, Florida Cities was required by the Florida Department of Environmental Protection (then known as the Florida Department of Environmental Regulation)(hereinafter referred to as "DEP"), to expand its North Fort Myers plant. As a result of DEP's action, Florida Cities incurred additional plant costs of approximately 1.6 million dollars. As a consequence of having incurred additional plant costs, Florida Cities requested that the PSC treat the additional costs, plus other costs incurred by Florida Cities since 1992, as recoverable costs and as an addition to its rate base. Florida Cities' application was filed in 1995. After consideration of Florida Cities' application for rate increase, the PSC issued a Notice of Proposed Agency Action Order Granting Final Rates and Charges on November 2, 1995. In this order the PSC essentially determined that all additional plant expansion costs incurred by Florida Cities constituted recoverable costs. The PSC also determined that Florida Cities' Capacity Ratio was 100 percent and, therefore, all of its recoverable costs was treated as "used and useful." The decision of the PSC resulted in an increase of Florida Cities' utility rate of approximately 17.89 percent. The proposed decision of the PSC was, however, challenged and proceeded to hearing before the PSC. On September 10, 1996, the PSC entered a Final Order Denying Application for Increased Wastewater Rates, Reducing Rates, Requiring Refund and Requiring Reports (hereinafter referred to as the "PSC Final Order"). In the PSC Final Order, the PSC treated all of the 1.6 million dollars in costs associated with the expansion of the plant required by the DEP as recoverable costs. The PSC, however, reduced the Capacity Formula to 65.9 percent. This resulted in a reduction in Florida Cities' rate base of approximately 2.4 million dollars. The reduction in the Capacity Formula to 65.9 percent was caused, in part, by the manner in which the PSC determined the numerator of the Capacity Formula. The PSC modified the manner in which it calculated the numerator of the Capacity Formula: Instead of using the average daily flow calculated on a peak month basis, it used the average daily flow calculted on an annual basis (to which it added a "reserve" of 4.58 percent) . . . . The reduction in the Capacity Formula from 1992 to 1995 was also caused by the plant capacity figure used by the PSC. The PSC used a permitted capacity of 1.5 MGD instead of the actually designed and built capacity of 1.25 MGD. Florida Cities had urged use of the 1.25 MGD actual capacity figure. As a result of the PSC's conclusion that only 65.9 percent of the amount of recoverable costs was used and useful, Florida Cities' rate base was reduced to $5,525,915.00, a decrease of Florida Cities' used and useful plant as determined in 1992 of over $800,000.00. Although the PSC included the additional costs incurred by Florida Cities in order to comply with DEP regulations, the PSC's use of a Capacity Ratio of 65.9 percent to determine the amount of the recoverable costs considered used and useful had a net effect of disallowing approximately 2.4 million dollars in proposed rate base (1.6 million dollars incurred to meet DEP regulations plus the $800,000.00 reduction of 1992 rate base). Florida Cities' Appeal of the PSC's Final Order. Florida Cities appealed the PSC Final Order to the District Court of Appeal, First District (hereinafter referred to as the "First District Court"). Florida Cities Water Company v. Florida Public Service Commission, 23 Fla. L. Weekly D238 (Fla. 1st DCA January 12, 1998). On appeal, Florida Cities raised two grounds for reversal of the PSC's Final Order: The Capacity Ratio used by the PSC to determine the amount of its recoverable costs which was considered used and useful was flawed. Florida Cities urged the First District Court to increase its Capacity Ratio to 100 percent; and The PSC should have included all costs Florida Cities had incurred in order to comply with DEP regulations as part of its rate base without regard to the Capacity Ratio. Florida Cities argued that the 1.6 million dollars it had incurred to comply with DEP regulations should be included as part of its rate base without regard to what the Capacity Ratio was determined to be. Florida Cities' challenge to the Capacity Ratio used by the PSC was based upon two alleged errors: The PSC's use of permitted capacity of 1.5 MGD was improper. Florida Cities argued that the PSC should have used actual plant capacity of 1.25 MGD; and The method elected by the PSC to determine the average daily flow of the plant was a novel and unexplained deviation from past PSC policies. Florida Cities argued that the PSC should have continued to determine average daily flows based upon a peak month basis rather than an annual basis. As to the 1.6 million dollars in costs Florida Cities sought to have included in its rate base, Florida Cities' two arguments were alternative theories advanced to support the same end: 100 percent inclusion of the 1.6 million dollars it had incurred as a result of meeting DEP regulations. While the two arguments were interrelated with regard to the starting point (it had spent 1.6 million dollars on plant) and the result Florida Cities was attempting to achieve (inclusion of 1.6 million dollars in rate base), the two arguments involved different methods of reaching the desired result: (a) direct inclusion; or (b) inclusion through an increase in the Capacity Ratio. As to the remaining $800,000.00 reduction in Florida Cities' rate base, only one of the arguments raised by Florida Cities applied to this amount: the argument that the Capacity Ratio utilized by the PSC was flawed. The First District Court's Decision. The First District Court agreed with Florida Cities' contention that the Capacity Ratio used by the PSC was flawed. The First District Court found that both the calculation of the numerator and the denominator of the Capacity Ratio by the PSC was in error. With regard to the numerator, the First District Court concluded that the PSC's determination of average daily flows by using annual flows constituted a shift in agency policy which was "'unsupported by expert testimony, documentary opinion, or other evidence appropriate to the nature of the issue involved.'" The First District Court remanded the matter to the PSC to "give a reasonable explanation, if it can, supported by record evidence (which all parties must have an opportunity to address) as to why average daily flow in the peak month was ignored." With regard to the denominator, the First District Court opined that "no competent evidence of any substance supports the PSC's determination" of plant capacity. The First District Court concluded that the denominator should be 1.25 MGD. The First District Court rejected Florida Cities' contention that amounts it had expended to comply with DEP regulations should be included in its rate base without regard to the Capacity Ratio. The First District Court concluded that the 1.6 million dollars spent to comply with DEP regulations could be included in rate base "only to the extent the improvements they effect or the facilities to which they relate are 'used and useful in the public service.'" The ultimate impact of the First District Court's decision depends upon what action the PSC takes on remand with regard to determine the appropriate numerator for the Capacity Formula. The PSC issued an Order of Remand on April 14, 1998. In the Order of Remand, the PSC indicated its position that the decision of the First District Court regarding flows was "an invitation" to take additional testimony and evidence on the issue. The PSC, therefore, reopened the record and scheduled a second evidentiary hearing to determine how average daily flows should be calculated. Florida Cities filed a Motion to Stay the PSC's second evidentiary hearing, pending resolution of an appeal of the PSC Order of Remand. Until a final determination is made concerning the intent of the First District Court in remanding the matter to the PSC, it cannot be absolutely concluded what the "result obtained" in this case will be. The parties have, however, assumed for purposes of the matter that the Capacity Ratio should be approximately 98.6 percent. That is the best "result" which can be obtained by Florida Cities in this matter. Florida Cities' Motion for Attorney's Fees. As part of its appeal, Florida Cities also filed a Motion for Attorney's Fees. Florida Cities sought an award of attorney's fees pursuant to Section 120.595(5), Florida Statutes (Supp. 1996). In particular, Florida Cities requested that the First District Court: Grant attorneys [sic] fees to Appellant for this appeal; Remand this case to the Division of Administrative Hearings to determine attorneys fees; and Grant such other relief as the Court may deem appropriate. The First District Court entered the following order on Florida Cities' Motion for Attorney's Fees: The motion by appellant for attorney's fee is granted. If the parties are unable to agree on an amount of attorney's fees, the question should be referred to the Division of Administrative Hearings. The Parties' Effort to Agree. Florida Cities submitted copies of invoices to the PSC documenting the attorney's fees and costs incurred by it in connection with the appeal of the PSC's Final Order. Florida Cities proposed several findings of fact, which are hereby accepted by reference, relating to the manner in which it determined attorney's fees and costs. Those findings of fact include paragraphs 27 through and including 32. The PSC reviewed the invoice copies submitted by Florida Cities and stipulated and agreed that the number of hours and the hourly rates attributable to the appeal of the PSC Final Order were reasonable. The parties stipulated that the total amount of attorney's fees and costs incurred by Florida Cities on the appeal of the PSC Final Order amounted to $74,648.14. On March 18, 1998, the PSC and Florida Cities filed a Joint Petition for Resolution of Attorney's Fees with the Division of Administrative Hearings. The parties stipulated in the joint petition that they had negotiated in good faith but were unable to agree on the amount of attorney's fees which should be paid to Florida Cities. The parties stipulated and agreed that $74,648.14 is the appropriate lodestar figure. The parties were unable to agree, however, whether the lodestar figure should be adjusted in light of the "results obtained" by Florida Cities on appeal. Therefore, consistent with the order of remand from the First District Court, the matter was referred to the Division of Administrative Hearings for the limited purpose of determining whether the agreed upon lodestar figure of $74,648.14 should be reduced based upon the "results obtained" by Florida Cities on appeal. The "Result Obtained" on Appeal. On appeal, Florida Cities argued that it was entitled to a total increase in its rate base of approximately 2.4 million dollars: (a) the 1.6 million dollars it expended to comply with DEP regulations; and (b) the $800,000.00 reduction in rate base which resulted from the PSC's modification of the Capacity Ratio. In effect, Florida Cities argued that it should be allowed to treat 100 percent of its recoverable costs as its rate base. As a result of the First District Court's decision and assuming a Capacity Ratio of 98.6 percent will be achieved, Florida Cities was successful on appeal in increasing its rate base by approximately 2.2 million dollars. Of this amount, approximately $879,000.00 was attributable to the First District Court's conclusion that the PSC had used the incorrect plant capacity. The remaining 1.3 million dollars was attributable to the First District Court's conclusion that the methodology used by the PSC to determine average annual daily flows was a policy change which was unsupported by the record. Had Florida Cities succeeded on both issues it raised on appeal, it would not have resulted in any appreciable increase in Florida Cities' rate base over the increase in rate base allowed by the First District Court. A utility plant cannot be treated as used and useful in excess of 100 percent of its costs. The two issues Florida Cities raised on appeal, at least as to the 1.6 million dollars it was required to expend to meet DEP regulations, were alternative theories for achieving the same result: total inclusion of the 1.6 million dollars in its rate base. Florida Cities contended that the 1.6 million dollars should have been included directly in its rate base because it was required to make the expenditure by a government agency. In the alternative, it argued that the Capacity Ratio used to determine the amount of recoverable costs considered used and useful should have been increased to 100 percent. This alternative argument would also have resulted in inclusion of the 1.6 million dollars in its rate base. Regardless of which argument was accepted by the First District Court or whether the First District Court had accepted both arguments, Florida Cities could not have achieved any substantially greater result than it did. As to the remaining $800,000.00 reduction in 1992 rate base, Florida Cities' argument concerning the direct inclusion of amounts required to be expended to comply with DEP regulations did not relate to this amount. Only Florida Cities' two-pronged argument concerning the Capacity Ratio supported Florida Cities' argument that its rate base should be increased by this amount. Florida Cities' arguments concerning this amount was successful. I. The Consequences of Florida Cities' Failure to Prevail on All Issues. Had Florida Cities prevailed in its contention that costs incurred as the result of meeting government requirements should be included directly in rate base, such a decision would have had significant consequences to most, if not all, utilities in Florida. Such a decision would also have probably had an impact on future rates approved for Florida Cities. Having failed to prevail on this issue, however, prevented the application of this theory by other utilities in Florida to the determination of their rate bases and to the determination of the appropriate rate base for Florida Cities in the future. The loss of the benefit to other utilities and Florida Cities in future rate cases, which would have occurred had Florida Cities prevailed, did not have any impact on the "results obtained" by Florida Cities in the immediate proceedings. While the failure of the argument and the avoidance of the impact on rate-making, which would have resulted had Florida Cities prevailed, was of great consequence to the PSC, the rejection of the argument by the First District Court did not reduce the result Florida Cities hoped to have obtained on appeal. J. Attorney's Fees and Costs of Proceedings Before the Division of Administrative Hearings. Florida Cities incurred attorney's fees and costs in the instant proceeding before the Division of Administrative Hearings. Florida Cities has sought recovery of those fees and costs. The parties have not agreed upon the appropriateness of the inclusion of such fees and costs. Mr. Schiefelbein acted as lead counsel during the attorney's fees phase of this matter. As of April 23, 1998, four days before the hearing before the Division of Administrative Hearings, Florida Cities had incurred the following attorney's fees during the attorney's fees phase of this matter: Attorney Hourly Rate Total Fees Mr. Schiefelbein $150.00 $6,135.00 Mr. Gatlin $175.00 490.00 Ms. Cowdery $150.00 37.50 Total $6,662.50 It was estimated that an additional 22 hours of Mr. Shiefelbein's time would result in an additional $3,300.00 of fees attributable to completion of the attorney's fees phase of this proceeding "through a Final Order of the Administrative Law Judge." This estimate was based upon 4 hours for witness preparation, 4 hours for other hearing preparation, 4 hours to attend the hearing, and 10 hours for review of the hearing transcript and submittal of a proposed order. The hourly rate charged by counsel for Florida Cities for the attorney's fees phase of this proceeding was reasonable and a combined total of 66 hours to complete this phase of the proceeding was a reasonable number of hours to pursue this matter. Mr. Melson, an expert witness for Florida Cities in this proceeding, charged $220.00 per hour for his preparation for and attendance at the hearing before the Division of Administrative Hearings. Mr. Melson spent 2.6 hours preparing for the hearing and 2.5 hours attending the hearing. Mr. Melson's fee amounted to $1,122.00. Mr. Seidman, another expert witness for Florida Cities, charged an hourly rate of $90.00 and spent 20.75 hours in preparing for and attending the hearing. It was stipulated that Mr. Seidman's total fee of $1,867.50 was reasonable. Although Florida Cities did not argue that all fees and costs incurred by it during the attorney's fees phase of this proceeding should be recovered, it did seek recovery of the foregoing fees and costs. Those fees and costs totaled $12,952.00.
The Issue Whether the South Florida Water Management District’s (“District”) intended award of a contract for aerial spraying services, granular application services, and aerial transport services, to Coastal Air Services, Inc. (“Coastal”), is contrary to the District’s governing statutes, rules, policies, or the bid specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Parties The District is an independent taxing authority created pursuant to section 373.069, Florida Statutes, with the authority to contract with private entities to maintain real property controlled by the District. See § 373.1401, Fla. Stat. HAI is a Florida corporation duly authorized to do business in the State of Florida with a business address of 1090 Airglades Boulevard in Clewiston, Florida. Coastal is a Florida corporation duly authorized to do business in the State of Florida with a business address of 7424 Coastal Drive in Panama City, Florida. The RFB On February 7, 2018, the District issued the RFB, soliciting bids for qualified respondents to provide the following: [F]urnish all labor, equipment, perform data entry and perform all operations for spraying of aquatic, ditchbank and invasive vegetation by helicopter and provide aerial flight services for site inspection and plant surveys. Both HAI and Coastal submitted timely bids, which the District deemed responsive and responsible under the terms of the RFB. The District deemed Coastal the lowest responsive and responsible bidder for aerial spraying, granular application, and aerial transport services. The District deemed HAI the lowest responsive and responsible bidder for spot spraying services. On May 11, 2018, the District posted its Notice of Intent to Award the respective contracts to Coastal and HAI. HAI challenges the award to Coastal because it is not a responsible bidder under the terms of the RFB. HAI’s challenge focuses on two items required to document the bidder’s responsibility to perform the requested services. First, the RFB requires the bidder to provide at least two helicopters certified pursuant to 14 CFR Part 133, Rotocraft External-Load Operations; and 14 CFR Part 137, Agricultural Aircraft Operations (Part 137 Certificate). Second, the RFB requires the bidder to demonstrate its ability to obtain required insurance coverage. Part 137 Certificate HAI contends that Coastal’s bid does not meet the responsibility provisions of the RFB because it did not include sufficient Part 137 Certificates for its subcontractor, HMC Helicopters (“HMC”). HAI contends the Part 137 Certificates are required to expressly state that aircraft are certified to dispense economic poisons. Petitioner’s argument fails for three reasons. First, the RFB does not require the bidder’s Part 137 Certificate to expressly endorse aircraft to dispense economic poisons.3/ Second, assuming the express endorsement was required, the requirement does not apply to HMC. The RFB defines the term “Bidder” and “Respondent” as “[a]ll contractors, consultants, organizations, firms or other entities submitting a Response to this RFB as a prime contractor.” (emphasis added). In its bid, Coastal is listed as the prime contractor, and HMC as a subcontractor. The RFB requires each Respondent to list at least two aircraft which are Part 133 and 137 certified. The requirement applies to Coastal as the primary contractor, not to its subcontractor. Coastal’s bid listed five aircraft with both Part 133 and 137 Certificates, actually exceeding the requirement for two such certified aircraft. Third, assuming an express endorsement for dispensing economic poisons was required, and that the requirement applied to HMC, HMC’s Part 137 Certificate documents HMC’s authority to dispense economic poisons. Pursuant to 14 CFR 137.3, “Agricultural aircraft operation” is defined as follows: [T]he operation of an aircraft for the purpose of (1) dispensing any economic poison, (2) dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control, or (3) engaging in dispending activities directly affecting agriculture, horticulture, or forest preservation, but not including the dispensing of live insects. To obtain a Part 137 Certificate, the operator must pass a knowledge and skills test, which includes the safe handling of economic poisons and disposal of used containers for those poisons; the general effects of those poisons on plants, animals, and persons and precautions to be observed in using those poisons; as well as the primary symptoms of poisoning in persons, appropriate emergency measures in the case of poisoning, and the location of poison control centers. See 14 CFR § 137.19. However, if the operator applies for a Part 137 Certificate which prohibits dispensing of economic poisons, the applicant is not required to demonstrate the knowledge and skills listed above. See Id. HMCs’ certificates do not contain an express prohibition against dispensing economic poisons. The authorization for HMC’s aircraft to dispense economic poisons is inherent in its Part 137 Certificate. Coastal’s bid meets the solicitation requirement for at least two aircraft with Part 137 Certificates. Insurance Requirements The RFB requires each Respondent to “provide evidence of the ability to obtain appropriate insurance coverage.” Respondents may meet the insurability requirement by having their insurance agent either (1) complete and sign an insurance certificate which meets all of the requirements of Exhibit H to the RFB; or (2) issue a letter on the insurance agency’s letterhead stating that the Respondent qualifies for the required insurance coverage levels and that an insurance certificate meeting the District’s requirements will be submitted prior to the execution of the contract. In response to this requirement, Coastal submitted a letter from Sterlingrisk Aviation, dated March 6, 2018, stating, “All required coverage amounts are available to Coastal Air Service, Inc. to fulfill the requirements of this contract.” In the Re: line, the letter refers to the specific RFB at issue in this case. Coastal also submitted a certificate of insurance from Sterlingrisk Aviation demonstrating the levels of insurance coverage in effect at the time the bid was submitted, although the coverages are less than the amounts required under the RFB.4/ HAI takes issue with Coastal’s evidence of ability to obtain the required coverage because the letter from Sterlingrisk does not state “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Based on the totality of the evidence, the undersigned infers that Sterlingrisk’s letter omits the language that a certificate “will be provided” prior to contract execution, because Sterlingrisk will issue an insurance certificate only when Coastal applies, and pays the premium, for the increased coverage limitations. The letter from Sterlingrisk substantially complies with the insurance requirements of the RFB, and constitutes competent, substantial evidence of Coastal’s ability to obtain the required insurance coverage. HAI introduced no evidence that Coastal obtained an economic advantage over HAI by failing to include language from its insurance agent that “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Instead, HAI argued that by failing to enforce that provision of the RFB, the District cannot ensure the winning bidder will be responsible to undertake the contract. HAI argued that the District’s failure to adhere to this RFB requirement may create inefficiencies that “would result in the event that Coastal were unable to obtain the required insurance coverage” before execution of the contract. Coastal’s bid documents its eligibility for insurance coverage in the amounts required by the RFB. If Coastal does not provide said certificates, it will not be qualified for final execution or issuance of the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order dismissing Helicopter Applicator, Inc.’s Petition. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2018.
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate 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 19th day of December, 2003.
Other Judicial Opinions 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 the original notice of appeal with Clerk of the Division of Administrative Hearings and a 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. 31
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner resides in Mebane, North Carolina. Sometime in April 2003, Petitioner requested the Board to release certain information that is public information within the meaning of Chapter 119, Florida Statutes (2003). Sometime in October 2003, the Board provided some of the information requested by Petitioner. The information included "scores, converted and raw and seat numbers of test applicants." Respondent did not include the "listed areas as agreed." The Board charged Petitioner $90.00 for providing "what they felt Petitioner should have," and the Board was "quite insulting about it." On a date not identified in the Petition, Petitioner asked a representative of the Board if the Board "currently" had an advertisement in the Florida Administrative Weekly concerning a "rule challenge that dealt with raw scores or scores in general." The representative stated there was no proposed rule change pertaining to scores. Petitioner asked for any and all data pertaining to scores as a rule change. The representative for the Board stated there was no such information to provide. At some time not identified in the Petition, Petitioner requested a copy of any records that "had been submitted" to the [B]oard pertaining to scores as part of a rule change. The representative of the Board repeated that nothing had gone before the Board pertaining to applicants sitting for the "Intern Test or the PE Exam." The Florida Administrative Weekly dated October 10, 2003, contains a proposed change to Florida Administrative Code Rule 61G15-21 that is directly related to Petitioner's "public information request." Petitioner believes that the Board had to approve the rule change before the Board advertised it on October 10, 2003, and that the previous denials by the Board's representative constituted "unethical" conduct. Petitioner requested a public hearing pursuant to the advertisement in the Florida Administrative Weekly on October 10, 2003, but doubts if the Board will comply with the "Florida Administrative Laws" based on what Petitioner believes to be the Board's "previous unethical behavior." The Board may be "in violation of The Florida Sunshine Law and the Florida Administrative Laws." The behavior of the Board's representative "in trying to deceive" Petitioner on this issue is "certainly a red flag" and indicates a necessity to notify all previous testing applicants to make sure they are aware of the proposed rule change before adoption. The Florida Administrative Weekly alone is not "a well read media for the general [sic] affected masses." Florida law states that any substantially affected person may seek an administrative determination of the invalidity of a proposed rule by filing with DOAH a petition seeking such a determination within 21 days after the date of publication of the notice required by Chapter 120, Florida Statutes (2003). Petitioner timely filed a petition challenging the proposed change to an existing rule. Petitioner believes the term "substantial" denotes "having a reasonable basis in law and fact" and that the term "reasonable" denotes "that which is fair, proper or moderate under the circumstances." Petitioner believes it is Respondent's "negligence in complying with FS 120, FS 119 that gives Petitioner standing in this case." Petitioner made a "public information request" sometime in July 2003. Respondent did not provide the information in the months of August and September 2003. In September 2003, Respondent requested Petitioner to pay $90.00 for release of part of the information requested by Petitioner. The information Respondent agreed to release included: statistical data broken down by race and sex identifying each applicant by assigned number and a list of the "number of applicants" who sat for the past five professional engineer exams; the number of times "testees" took the test; raw and converted scores; the "city of the testees"; and the race and sex of the "testees." When Respondent requested the payment of $90.00, Respondent failed to disclose that Respondent would not release all of the requested information. Respondent did not release the "testees' candidate numbers." There may be no statutory exemption for "testees' candidate numbers." Petitioner believes Respondent violated Chapter 119, Florida Statutes (2003), by exceeding the statutory time limit for releasing public records and by not releasing all of the information that Petitioner requested. Petitioner believes that Petitioner is entitled to all of the information she requested, asserts that it is a misdemeanor to violate Chapter 119, Florida Statutes (2003), and alleges that such a violation is grounds for removal or impeachment. Petitioner believes Respondent failed to grant Petitioner a public hearing in violation of applicable rulemaking procedures. During a conversation with a representative for Respondent concerning Petitioner's request for information, the representative failed to advise Petitioner of the proposed rule change advertised in the Florida Administrative Weekly on October 10, 2003. If the proposed rule change were adopted, "without credibly addressing the remaining issues of Petitioner's public records request," there may be no further opportunity to retrieve the data now in the possession of Respondent. Respondent accepted payment for the requested data, cashed Petitioner's check, and "arrogantly" released what information Respondent felt Petitioner should have. Counsel for Respondent advised Petitioner that Respondent would not cash Petitioner's check, but would return the check to Petitioner. Counsel for Respondent also threatened in a telephone conversation to advise Respondent not to grant the request and to require Petitioner to come to Florida and "go through the records" herself. Petitioner requested counsel for Respondent to put the requested information in "chart form." Counsel stated he would not advise Respondent to place the information in any particular format. Counsel was "extremely hostile and arrogant" and "later apologized for his behavior." However, Petitioner believes counsel for Respondent is "extremely hot tempered with certain people." Counsel for Respondent stated to Petitioner that Respondent would release the information "just as it is" in Respondent's database, and Petitioner could then put the information in any format she desired. That is "exactly what Respondent did. The information was extremely fragmented and difficult to read." Respondent had "no credible basis" for denying Petitioner the requested information. Petitioner believes that Respondent's action, "at best was deceptive and nonresponsive to Petitioner's inquiry." The trier of fact cannot summarize the next assumptive finding from Petitioner's response to the Motion to Dismiss, but must quote from the response. On October 16, 2003, Petitioner asked [Respondent's representative] via e-mail for the immediate release of all data whether electronic or written or telephonic messaging; and any and all communications between staff, and any other entity, person, corporation, business, governmental agency relative to the proposed change of scores, etc. Identify the date of origination of the proposed rule change and the reason for the proposed change. Please indicate any Board action on this issue and the date of Board action. Please include any supportive reports or data submitted to the Board to support or necessitate the need for a change in policy. Lastly, will the legislature need to act on your proposed rule change? As the e-mails will illustrate [the representative] continued to deny that any rule change existed pertaining to the very same public records request by Petitioner. The actions of [the representative] breached the public trust [and] eroded the fiber of 'ethics' in government. When Petitioner found the proposed rule change in the October 10, 2003, issue of the Administrative Weekly, [the representative] was listed as the contact person. Petitioner believes Chapter 120, Florida Statutes (2003), creates a two-pronged right to participation in the rulemaking process, i.e., "those [at] whom the intended action is directed and those who may just be affected by the new rule." Rulemaking procedures require notice to all persons named in the rule and to all persons who have timely requested notice. Respondent conducted its "rule change meeting in a closed meeting not open to the public." The records of that meeting are not available to the public. The Florida Administrative Weekly is not a well read publication for the "affected parties, directly affected parties, or the intended target parties." Therefore, Petitioner believes "in the spirit of open government, Respondents [sic] failed to meet the standard."
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ 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 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
