The Issue Whether Florida Administrative Code Rules 61G15- 21.009(1)(b) and (3) and 61G15-20.0015(3) are invalid exercises of delegated legislative authority.
Findings Of Fact Based on the stipulated facts submitted by the parties and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Board of Professional Engineers ("Board") is the state agency responsible for the licensure and regulation of professional engineers in Florida. §§ 471.007, 471.008, 471.013, and 471.031, Fla. Stat. (2005).1 Mr. Hursh is an individual who applied for licensure by endorsement with the Board to be licensed as a professional engineer. Mr. Hursh is licensed in another state, so he applied for licensure by endorsement pursuant to Section 471.015(3)(b), Florida Statutes. Mr. Hursh failed to pass the required Principles and Practice Examination, provided by the National Council of Examiners for Engineers and Surveyors ("NCEES") five times since October 1, 1992, in an effort to become licensed as an engineer in Florida. In April 2004, Mr. Hursh passed the NCEES examination in Delaware, met Delaware's other licensing criteria, and, on July 14, 2004, was issued a license to practice engineering by the State of Delaware. In August 2004, Mr. Hursh filed his application for licensure by endorsement with the State of Florida and subsequently provided all supporting documentation as requested by the Board, including a Verification of Licensure from the Delaware Association of Professional Engineers. Mr. Hursh did not provide a copy of the Delaware licensing requirements. On January 19, 2005, the Application Committee of the Board denied Mr. Hursh's application, citing as the reason "5 time failure - need 12 hrs. of courses prior to endorsement." Delaware's licensing criteria was never reviewed by the Board to determine if the Delaware licensing criteria was substantially the same as Florida's licensing criteria. On February 10, 2005, the Board filed a Notice of Denial of Mr. Hursh's application for licensure by endorsement, citing as the basis for the denial that Mr. Hursh had failed the examination five times and needed to meet the additional college credit requirements of Section 471.013, Florida Statutes, and Florida Administrative Code Rule 61G15.21.007.
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
The Issue The issue in these cases is whether Respondent, the Florida Department of Environmental Protection, has provided Respondent, Southwest Florida Water Management District, with reasonable assurances that the activities proposed in its Noticed General Environmental Resource Permit No. 4715785.00 meet the conditions established in Section 373.413, Florida Statutes, and Rules 40D-400.215 and 40D-400.485, Florida Administrative Code, for issuance of general environmental resource permits.
Findings Of Fact The Parties. Big Blue Springs, Inc., owns property located adjacent to Big Blue Springs. Big Blue Springs, Inc., acquired its interest from Big Blue Springs Property Owners' Association, Inc. (hereinafter referred to as the "Property Owners' Association"). The individual Petitioners in these cases own property located along the current water flow from Big Blue Springs with the exception that the evidence failed to prove whether Mr. and Mrs. Manfred Rietenbach own property in proximity to Big Blue Springs. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. Respondent, Southwest Florida Water Management District (hereinafter referred to as the "SWFWMD"), is a public corporation with regulatory jurisdiction over the administration and enforcement of surface water management system rules pursuant to Part IV, Chapter 373, Florida Statutes. Big Blue Springs. Big Blue Springs (hereinafter referred to as the "Spring"), is a moderately sized freshwater spring located in Citrus County, Florida. The pool of the Spring is approximately 75 feet in diameter. Water flows from the Spring at rates which vary between 11.1 and 19.6 cubic feet per second. The Spring is located immediately adjacent to the Withlacoochee River, an "Outstanding Florida Water." The Spring is located within the State of Florida's sovereign lands. Therefore, the Spring comes under the jurisdiction of the Department. Prior to the 1960's, the Spring connected directly with the Withlacoochee River only a few feet from the location of the pool of the Spring. The natural flow of water from the Spring was in an east-northeast direction. Water also flowed in a northwesterly direction into wetlands which surrounded the Withlacoochee River. The Diversion of the Spring's Natural Flow. During the 1960's a developer constructed a dike around the Spring damming up the Spring's natural connection with the Withlacoochee River. The dike was illegally placed on state sovereign lands under the Department's jurisdiction. The developer also dredged a canal (hereinafter referred to as the "Spring Run") in a northwesterly direction from the Spring. The Spring Run connected the Spring with the Withlacoochee River. The distance from the pool of the Spring to the Withlacoochee River is approximately one half mile. The dredging of the canal and the damming of the natural connection with the Withlacoochee River diverted the portion of the water discharge from the Spring that had flowed directly into the Withlacoochee River down the Spring Run. As a result of the damning of the Spring, all water from the Spring has flowed down the Spring Run since the 1960's. The construction of the dike around the Spring and the dredging of the Spring Run was carried out without a permit or sovereign land-use authorization. The Spring Run Today. The Spring Run is not of a uniform depth or width. At places, the Spring Run is 15 to 20 feet wide. The depth of water in the Spring Run also varies throughout the year. At times, the area surrounding the Spring and Spring Run is flooded. At other times, water in the Spring Run is of minimal depth. The Spring Run has developed into a functioning ecological wetland system consisting of various marine species and habitats. A small one-lane bridge spans the Spring Run approximately a quarter of a mile from the Spring. Access to the Spring Today. There is no legal access by land to the Spring. Even if access by land were legally available, such access would be difficult because the dike is approximately 10 feet tall and has steep slopes. Access by water to the Spring is limited to access through the Spring Run. Access along the Spring Run to the Spring is, however, not possible for many boats due to the lack of water depth. When water levels are low, access is further reduced. Access along the Spring Run during times of high water is also limited due to the small bridge that spans the Spring Run. At times, the water is too high for even small boats to pass under the bridge. Despite its limitations, the Spring Run is navigable, at least to small boats, the majority of the year. The Board of Trustees of the Internal Improvement Fund's Decision to Remove the Dike. In March 1990, the dike around the Spring was mysteriously breached, reconnecting the Spring and the Withlacoochee River. The Property Owners' Association obtained permission from the Army Corps of Engineers and the Department to repair the breach. After repairing the breach in the dike, the Property Owners' Association applied to the Governor and Cabinet, sitting in their capacity as the Board of Trustees of the Internal Improvement Fund (hereinafter referred to as the "Trustees"), for an easement allowing them to maintain the dike for 25 years. In response to the request of the Property Owners' Association for an easement, a public meeting was held by the Department in Inverness, Citrus County, Florida, in the summer of 1993. The meeting was advertised in the local newspaper as an opportunity for the public to discuss the Spring and what should be done about public access to the Spring. That meeting was well attended by members of the public, including several Petitioners. Following the public meeting and after discussions with the Property Owners' Association, the Department initially indicated that it would recommend to the Trustees that the easement application be approved. That recommendation was based upon negotiations with, and an offered settlement from, the Property Owners' Association: Staff believed that the homeowners' offer represented a reasonable compromise for this issue on the condition that the homeowners' association agreed to hold the state harmless for any liability arising out of the continued presence of the dike and to issue a quitclaim deed to the Board of Trustees for all lands located below the historic ordinary high water line of the spring. DEP Exhibit 16. Throughout the period of time during which the Department considered the Property Owners' Association's requested permission to maintain the Spring dike, the Property Owners' Association was aware of the Department's concern over the need to ensure public access to the Spring. On October 21, 1993, the Property Owners' Association informed the Department that it would not agree to all the terms of the settlement the Department desired. In particular, the Property Owners' Association was unwilling to give the Department assurances concerning public access to the Spring. As a consequence, the Department decided not to support approval of the easement application. The Property Owners' Association was informed of the Department's decision by letter dated October 27, 1993. A copy of the letter was also sent to Ms. Spence. The Department informed the Property Owners' Association that it was going to make the following recommendation to the Trustees: RESCIND STAFF'S APRIL 6, 1993, LETTER, DIRECT STAFF TO HAVE THE DIKE REMOVED, AND HAVE THE SPRING RESTORED TO ITS NATURAL FEATURES. The meeting at which the Trustees was to consider the Property Owners' Association easement application was scheduled for November 9, 1993. The meeting was advertised in Vol. 19, No. 43, Florida Administrative Weekly (October 29, 1993). The notice did not specifically indicate that the Trustees would consider the removal of the dike or the permit which is the subject of this proceeding at the meeting. The Property Owners' Association easement application and the Department's recommendation concerning the easement and removal of the dike were included on the agenda for the November 9, 1993, meeting of the Governor and Cabinet. The November 9, 1993, meeting of the Governor and Cabinet was held in Tallahassee. The meeting was open to the public and recorded. The Property Owners' Association was represented at the meeting. Ms. Spence also attended the meeting. During the meeting a number of issues concerning the fate of the Spring were discussed, including whether an easement should be granted to the Property Owners' Association and whether the Department's recommendation should be approved. Public access to the Spring was discussed by, and constituted a primary concern of, the trustees. The Trustees also discussed the impact which boats would have on the Spring if allowed into the Spring, the impact on the Spring Run if the restoration of the Spring was ordered, and the intrusion of tannic-stained water from the Withlacoochee River into the Spring. A copy of the permit at issue in this proceeding was not available at the November 9, 1993, Trustees' meeting. Nor were conceptual plans for the restoration of the Spring available. The Trustees denied the requested easement and directed the Department "to have the dike removed and the spring restored to its natural features." The Trustees' decision was subsequently challenged before the Division of Administrative Hearings by the Property Owners' Association. A Final Order was entered by the Trustees on November 16, 1995, rejecting the challenge. The Department's Efforts to Carry Out the Trustees' Decision. In February and May 1996, following entry of the Final Order, the Deputy Secretary of the Department met with Department staff. Pursuant to delegated authority, the Deputy Secretary directed staff to proceed with the removal of a section of the dike in order to restore the flow of the Spring into the Withlacoochee River at the approximate location of the natural flow from the Spring into the river. On or about September 23, 1996, the Department submitted an application to the SWFWMD for a permit to restore the Spring. The application included the proposed removal of a portion of the dike adjacent to the Withlacoochee River and the stabilization of the dike with limestone rip-rap. On October 22, 1996, the SWFWMD issued Noticed General Environmental Resource Permit No. 4715785.00 to the Department approving the Big Blue Springs Restoration Project, subject to the general conditions of Rule 40D-400.215, Florida Administrative Code, and the special conditions of Rule 40D- 400.485, Florida Administrative Code. At the suggestion of some of the Petitioners, the Department retained Paul Pilney, a soil scientist with the Soil Conservation Service of the United States Department of Agriculture. Mr. Pilney conducted soil soundings, soil borings, and surveys of the area in an effort to estimate the location and elevation of the original Spring runoff. Using Mr. Pilney's findings, the Department modified its proposed location of the breach in the dike and reduced the width of the breach. The depth of the proposed breach was not, however, modified. The Department submitted modified plans and an amendment to its permit application to the SWFWMD on July 27, 1997. The SWFWMD reviewed and approved the modifications and incorporated them into the permit. The Department held at least one public meeting on the proposed restoration project. The proposed restoration project was approved by the Secretary of the Department. The Proposed Restoration Project. The Department's proposed restoration project (hereinafter referred to as the "Restoration Project") is technically simple: it entails the removal of a portion of a water control structure, a dike, in order to partially restore the natural flow of water between the Spring and the Withlacoochee River. In order to carry out the Restoration Project, the Department has proposed breaching the dike by removing approximately 500 cubic yards of earth from the dike between the Spring and the Withlacoochee River. The Department has proposed that the breach be graded to an elevation of 31 feet above mean sea level. This depth was based upon Mr. Pilney's findings of the estimated natural depth of the Spring runoff. The depth is only an estimate, however. There is no absolute way of determining the precise depth of the natural Spring runoff into the Withlacoochee River. The Department has proposed the use of floating barriers and turbidity screens while the Restoration Project is being carried out. The Restoration Project will be completed by the placement of limerock rip-rap along the slopes and back of the Spring to control erosion. The limerock rip-rap will consist of limerock boulders and/or rubble, weighing approximately 135 pounds per square foot. Limerock will be used because it occurs naturally along the Withlacoochee River. The disturbed areas around the Spring will also be revegetated immediately after construction. "No Motorboating" signs will be erected around the area in the interest of public safety and in an effort to limit prop dredging by boats that enter the Spring. I. Impacts from the Restoration Project. The Restoration Project will not cause pollution. Water quality and health standards will not be violated. The Restoration Project will not degrade water quality or cause a violation of state water quality standards, including special standards set for Outstanding Florida Waters. Although dark, tannic-stained water from the Withlacoochee River will mix with the nearly crystal clear water of the Spring on occasion, the water quality of the Spring will not be degraded or adversely impacted. Water from the Spring already mixes with the Withlacoochee River. After the breach, it will just mix with the Withlacoochee River a little sooner. The Restoration Project will improve public access to the Spring. The need to access the Spring by locating and traversing the Spring Run will be eliminated. Accessing the Spring illegally by land will also be eliminated. Access to the Spring will be available by the larger boats which can navigate the Withlacoochee River. The 31-inch depth to which the Department has proposed that the new access channel be cut is lower than the current depth of the Spring Run. As a consequence, the amount of water which will run down the Spring Run will be dramatically reduced by the Restoration Project. The impact of the reduced water flow in the Spring Run will reduce the already somewhat limited navigability of the Spring Run. The Spring Run will remain navigable only on an intermittent basis. The limited flow of water through the Spring Run will also reduce the extent to which the Spring Run currently is a functioning ecological wetland system. If the depth to which the breach is graded were less than the 31 inches proposed by the Department and were limited to a depth no more than that of the flow from the Spring into the Spring Run, there would be no appreciable decrease in the public access to the Spring which the Department and the Trustees wish to insure is provided by the restoration of the Spring. Public access would still be readily available, and the negative impact on the ecological wetland system of the Spring Run and the navigability of the Spring Run would be decreased.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Southwest Florida Water Management District authorizing the Department of Environmental Protection to proceed with construction under Noticed General Environmental Resource Permit No. 4715785.00, modified to provide that the depth of the breach between the Spring and the Withlacoochee Rive being limited to a depth of no more than that of the flow from the Spring into the Spring Run. It is further RECOMMENDED that the request for hearing filed by Mr. and Mrs. Manfred Rientenbach be Dismissed. DONE AND ENTERED this 17th day of August, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 17th day of August, 1999. COPIES FURNISHED: Clark A. Stillwell, Esquire Brannen, Stillwell and Perrin, P.A. Bank of Inverness Building 320 Highway 41 South Inverness, Florida 34451-0250 Peter A. Grant 7325 North Spring Run Terrace Hernando, Florida 34442 Guy Marwick 12950 Northeast First Street Road Silver Springs, Florida 34488 Norma L. and Thomas Spence Post Office Box 246 Holder, Florida 34445 Judith K. Hall and Russell D. Hall 6875 East Halls Spring Path Hernando, Florida 34442 Janifer Carlson and Richard Carlson Post Office Box 450 Marble, North Carolina 28905 Mr. and Mrs. Manfred Rietenbach 10825 Nina Street Largo, Florida 33778 Margaret M. Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Andrew J. Baumann, Assistant General Counsel Keith L. Williams, Assistant General Counsel Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 Kathy Carter, Agency Clerk Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahasee, Florida 32399-3000
The Issue The issue is whether Petitioner was an employee of Respondent rather than an independent contractor, thereby giving the Florida Commission on Human Relations jurisdiction over Petitioner's amended charge of discrimination against Respondent.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a white female. At the time of the events giving rise to the amended charge of discrimination, Petitioner was 35-years-old. Respondent Central Florida Investments, Inc. (CFI), is a corporation which, either itself or through related legal entities, owns and operates the Westgate timeshare resorts in the Orlando, Florida, area. The resorts include Westgate Lakes and Westgate Vacation Villages. One of the related legal entities is CFI Sales and Marketing, Ltd. (CFI Sales). CFI Sales is referred to as a "division" of CFI on at least one of the forms received into evidence. CFI's human resources department processed Petitioner's benefits forms. Those forms designated Petitioner as an employee of CFI; they did not reference CFI Sales even though that was the entity through which Petitioner was paid. The human resources department also processed a salary increase for Petitioner in August 1999. David Siegel is the president of CFI. Mr. Siegel controls the operation of the Westgate resorts through CFI and its related legal entities. Petitioner reported directly to Mr. Siegel in her position as Executive Spa Director even though she was "employed" by and paid through CFI Sales. Petitioner's "Employment" With Respondent 1. Selling Timeshare Units Petitioner first started working for Respondent2 in 1986 as a salesperson. In that position, she was responsible for selling timeshare units at the Westgate resorts owned by Respondent. Petitioner worked as a salesperson for Respondent continuously from 1986 through 1998, except for a period of a couple of years that she worked at a spa in Winter Park. Petitioner was an independent contractor during the period that she was a salesperson. She had a written contract with Respondent which expressly designated her as an independent contractor, and she was paid commissions from the timeshare units that she sold. Petitioner did not receive any insurance or other benefits from Respondent during the time that she was a salesperson. 2. Executive Spa Director At some point after she left the Winter Park spa and returned to work as a salesperson for Respondent, Petitioner approached Mr. Siegel regarding the establishment of a spa as an amenity at Westgate Lakes. Mr. Siegel directed Petitioner to put together a business and marketing plan for the spa, which she did. After some period of time, Mr. Siegel approved the spa and put Petitioner in charge of its development. During the initial period that Petitioner was working on the development of the spa, she continued to sell timeshare units for Respondent. In January 1998, Petitioner was placed on salary with Respondent and given the title of Executive Spa Director. From that point through the opening of the spa in 1999, Petitioner focused exclusively on the development of the spa. Petitioner oversaw the construction of the spa and, among other things, Petitioner was responsible for the spa's interior design and its name, Papillon the Spa at Westgate Lakes (Papillon). The spa was considered an amenity of the Westgate resorts. It was available for use by Westgate timeshare unit owners and their guests. It was also used by salespersons as a tool to close sales to prospective purchasers of Westgate timeshare units. The spa offers a variety of services, including nail care, hair care, spa body treatments, body wraps, waxing, skin care, and massage therapy. The spa also includes a fitness center. After the spa opened, Petitioner continued in the position of Executive Spa Director. In that capacity, she was responsible for all aspects of the day-to-day management and operation of the spa, including supervision of the spa's staff. Petitioner reported directly to Mr. Siegel. The managers of other resort amenities reported to the general manager of the resort, not to Mr. Siegel. When Petitioner was put on salary as the Executive Spa Director, she was also given benefits by Respondent. Those benefits, which became effective on April 1, 1998, included health, life, dental and long-term disability insurance. Petitioner's benefits were terminated effective December 31, 1999. The reason that Petitioner was given for the termination of her benefits was that Mr. Siegel "could get into a lot of trouble" for giving her employee benefits while treating her as an independent contractor for tax purposes. Petitioner did not have set days or hours which she was required to work at the spa, but she was expected by Mr. Siegel to be there all of the time. Because Petitioner was most familiar with the spa's operation, that expectation is not entirely unreasonable. Petitioner did not accrue vacation time or retirement benefits from Respondent in her position as Executive Spa Director. Petitioner rarely took time off and, when she did, she had to obtain Mr. Siegel's personal approval to be away from the spa. A lawsuit is pending between the parties in circuit court in Orange County regarding Mr. Siegel's alleged agreement to pay for repairs at Petitioner's home as compensation for the vacation time that she was not given as Executive Spa Director. Petitioner was required to personally perform her duties as Executive Spa Director; she could not delegate them to another member of the spa's staff. Petitioner did not have a written contract with Respondent during the period that she was in the Executive Spa Director position. As a result, there was nothing to preclude her from leaving the position at any time, nor was there anything to preclude Respondent from firing her at any time. Petitioner was told by Mr. Siegel that she could not consult with other spas or provide her services to others during the period that she was in the Executive Spa Director position. Petitioner did not work for any other entity during the period that she was Executive Spa Director. Petitioner was not authorized to make purchases for the spa without approval of Mr. Siegel or someone else in Respondent's management team. However, as discussed below in connection with Petitioner's tax returns, that did not stop Petitioner from expending her own money on the spa. Petitioner was required to provide Mr. Siegel with monthly reports detailing the operation of the spa. The reports included information such as the number of spa treatments given, the number of unit owners and guests who utilized the facility, and the amount of income produced during the period. Petitioner wanted to market Papillon to the general public as a "day spa" rather than just limiting its use to Westgate unit owners. However, Mr. Siegel would not approve outside marketing. When Petitioner did outside marketing of the spa on her own with her own money, Petitioner was reprimanded by Mr. Siegel and another member of Respondent's management team. Petitioner did not employ the staff at the spa. They were employees of and paid by Respondent. Petitioner participated in the hiring and firing of the staff, but she did not have autonomy over that process. Prospective staff were screened by Respondent's human resources department before they could be interviewed by Petitioner, and Petitioner's decisions to hire and fire staff had to comply with policies adopted by the human resources department. Petitioner was paid on a weekly basis as Executive Spa Director. No taxes or other amounts were withheld from Petitioner's weekly paychecks. Petitioner's salary was not tied to the profitability of the spa. Her salary was established by Mr. Siegel based upon the information presented to him by Petitioner regarding the salaries of directors at spas comparable to Papillon. Petitioner has a cosmetology license which allows her to perform all of the services in the spa except massage therapy. Petitioner paid the fee for the license and, because she was not reimbursed by Respondent, she reported the fee as a "business expense" on her tax return. On occasion, Petitioner performed services (such as nail care) at the spa. Petitioner was not compensated for performing those services, so the cost of the service went directly into the spa's profit. In December 2000, Petitioner was placed on a five-day suspension while Respondent audited the spa. Thereafter, on December 15, 2000, Petitioner was terminated from her position as Executive Spa Director. After Petitioner was terminated, Respondent brought in the Nicki Bryant consulting firm to manage the spa. The firm was on a 90-day contract with Respondent, the specific terms of which are not part of the record. Petitioner's Tax Returns from 1998 Through 2000 At the end of each year that she worked for Respondent, including 1998 through 2000 when she was Executive Spa Director, Petitioner received a 1099 tax form from Respondent rather than a W-2 tax form. Petitioner was not given the option of the type of tax form that she received from Respondent. The 1099 form designated Petitioner's earnings from Respondent as "nonemployee compensation." In 1998, Petitioner received compensation from Respondent in the amount of $78,030.00 In 1999, her compensation from Respondent was $87,115.44, and in 2000 her compensation from Respondent was $102,223.14. Petitioner used the 1099 forms she received from Respondent to complete her federal income tax forms. The only income that Petitioner reported for the 1998, 1999, and 2000 tax years was the compensation that she received from Respondent. In each tax year, that compensation was reported on Schedule C of Petitioner's tax return. That schedule, as its title indicates, is used to compute "profit or loss from business (sole proprietorship)." Each tax year, Petitioner deducted a significant amount of expenses on Schedule C. In 1998, she deducted expenses of over $48,000; in 1999, she deducted expenses of over $63,000; and in 2000, she deducted expenses of over $64,000. The following table identifies some the categories in which Petitioner reported expenses, and the amount of such expenses reported in the 1998, 1999 and 2000 tax years: Category 1998 1999 2000 Advertising $ 625 $ 2,400 $ 5,418 Car expense $ 7,767 $ 7,855 $ 6,102 Office expense $ 625 $ 2,200 $ 2,895 Supplies $11,355 $10,500 $11,524 Travel $ 2,630 $ 2,538 $ 6,125 Meals and entertainment $13,531 $13,540 $14,285 Postage / Fed Ex Gifts 8,107 N/A3 $ 4,323 $ N/A $12,946 $ 6,528 Cellular phone N/A $ 3,108 $ 2,856 Uniforms Seminars / N/A $ 1,490 $ 2,175 Continuing education N/A $ 888 $ 2,354 These expenses reflect the expenses that were not reimbursed by Respondent. Petitioner testified at the hearing that she was reimbursed for her travel to several seminars for some of her other expenses as well. However, corroborating evidence of those reimbursements was not introduced at the hearing. Petitioner gave her accountant receipts for all of these expenses. Petitioner, not her accountant, was responsible for categorizing the receipts into the "appropriate" category. The significant amount of expenses reported by Petitioner and the categories in which amounts reported call into question her testimony at the hearing that she was not permitted to advertise the spa or make independent decisions regarding the spa's operation, and that she was required to be at the spa all day, every day. However, the tax returns do not entirely undermine the credibility of Petitioner's hearing testimony. In addition to the $2,400 in advertising expenses reported in 1999, Petitioner also reported expenses of $1,150 for "promotion." The postage and Fed Ex expenses also related to the advertising of the spa since they were for mailings from Petitioner to the owners to whom Petitioner had sold timeshare units. The car expenses, which Petitioner attributed to her travel around the state and around the Orlando area to talk about the spa and learn about the spa industry, suggest that there were significant amounts of time that she was not at the spa. In 1999 alone, Petitioner reported that she drove more than 25,000 miles (not including commuting miles) on business. That mileage is different from the travel expenses that Petitioner reported on her tax returns and, at hearing, attributed to her attendance at spa industry trade shows and conferences. The amounts reported as "supplies" were for items that Petitioner bought through conferences, trade shows, and spa industry publications to try out at the spa such as bath salts, oils, and spa equipment. The day-to-day supplies necessary for operation of the spa were provided by Respondent. The amounts reported as "gifts" were for services (such as nail care) rendered at the spa by Petitioner for which Petitioner was not compensated, as well as gifts that Petitioner purchased for vendors or other Westgate department heads who had done something nice for Petitioner. The amounts reported as "office expense" related to a home office that Petitioner used to complete work that she brought home from the spa. Petitioner also had an office at the spa which was furnished by Respondent with a desk, computer, telephone, and other items essential to the operation of the spa. Petitioner also promoted the spa through word-of- mouth. The amounts reported as meal expenses were for lunches or dinners paid for by Petitioner at which she discussed or mentioned the spa. After deduction of expenses, Petitioner reported "business income" of $29,987 in 1998, $23,714 in 1999, and $38,207 in 2000 on her tax returns. Petitioner paid self-employment tax in each of those years. Above Petitioner's signature on the tax returns for 1998, 1999, and 2000 is the following statement: "Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete." Petitioner testified at the hearing that she intends to amend her returns to reflect her status as an employee rather than an independent contractor and, presumably, eliminate those expenses which would not be deductible by an employee. However, as of the date of the hearing, Petitioner had not taken any formal action to amend her returns.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order which: determines that Petitioner was an employee of Respondent rather than an independent contractor for purposes of the Florida Civil Rights Act of 1992; and directs the Commission staff to re-open its investigation into the merits of Petitioner's amended charge of discrimination against Respondent. DONE AND ENTERED this 17th day of April, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 17th day of April, 2003.
Findings Of Fact At all times here involved Respondent held a general contractor's license No. CG C011375 and a pool contractor's license No. CP C010307 issued by Petitioner. Respondent was the owner and qualifying contractor for Player Pools, Inc. In late 1975 Player Pools, Inc. entered into a contract with Robert Pereux, a general contractor, to construct a pool at a residence Pereux was building for Carl Reichenbach. Plans submitted with application for permit were approved by the City of Coral Springs Building Inspection Department and construction of the pool was commenced early in 1976 and completed in May 1976. The pool passed all inspections except the electrical inspection, which has not passed on 3-26-76. Had. the electrical discrepancies been corrected immediately, the pool would have passed final inspection. Respondent completed the major portion of the construction and, while the general contractor was backfilling the pool, a large vertical crack some 4 inches wide appeared in the wall of the pool adjacent to the house. The general practice in Broward County is for the general contractor to back-fill the pool after' the floor and walls of the pool have been completed by the pool contractor. No evidence was presented showing who corrected this large vertical crack or what caused the crack. Respondent's contention that this crack was caused by the vertical weight of the tractor used to back-fill, while adjacent to the wall, is not credible. Had the tractor hit the wall while back-filling, a crack could have resulted. Apparently this large vertical crack from the floor to the coping was repaired by someone and the pool was subsequently filled with water in June 1976. When this occurred, hairline cracks near the cove of the pool appeared and the pool leaked. Cove was defined as the part where the wall joins the floor of the pool. Respondent, pursuant to a verbal agreement with Pereux, attempted to repair the cracks but apparently without success. Pereux died early in 1977 and the provisions of this verbal agreement were not presented. A dispute between Pereux and Respondent arose regarding payment for the work Respondent had done on the pool and Respondent filed a mechanic's lien against the property. A copy of release of lien against Reichenbach's property was admitted as Exhibit 8. The amount satisfied by Exhibit 8 is the same amount Respondent claims was owed him by Pereux in his demand for payment dated May 7, 1976 (Exhibit 7). Following receipt of a complaint, the City of Coral Springs issued Notice of Violation to Respondent, charging violations of sections 2301.1(b) and 5001.2(b) South Florida Building Code (Exhibit 2).
The Issue The issue is whether the Suwannee River Water Management District (“the District”) should renew Seven Springs Water Company’s (“Seven Springs”) water use permit.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties The District is a water management district created by section 373.069(1), Florida Statutes. It is responsible for conserving, protecting, managing, and controlling water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The District, in concert with the Department of Environmental Protection, is authorized to administer and enforce chapter 373, including statutes pertaining to the permitting of consumptive water uses. The District also administers and enforces rules set forth in Florida Administrative Code Chapter 40B. Seven Springs is a fourth generation, family-owned company. Through an exclusive water sales and extraction agreement and subsequent amendments thereto, Seven Springs has the right to withdraw water from wells1 located on 7300 Northeast Ginnie Springs Road, High Springs, Florida 32643-9102. The water withdrawn by Seven Springs is piped to the adjacent High Springs bottled water facility. Both of the aforementioned properties are located in Gilchrist County and within the District’s boundaries. 1 Groundwater is withdrawn from two 10-inch diameter production wells. A third production well is proposed and would replace one of the aforementioned wells once placed into service. Seven Springs’ existing water use permit was originally issued by the District in 1994. On March 15, 2019, Seven Springs submitted its application for a five-year renewal of that permit. In 1996, the property where the High Springs bottled water facility is located was sold by Seven Springs to AquaPenn. The parties executed a contract making Seven Springs the exclusive provider of water to the bottled water facility. The bottling plant was then constructed in 1998. After AquaPenn, the High Springs plant was owned and operated by Dannon, Coca-Cola, Ice River, and now Nestle Waters of North America (“Nestle” or “NWNA”). Each time the High Springs plant was sold, the aforementioned contract with Seven Springs was also sold to the purchaser. Seven Springs has thus been the sole source of spring water for the High Springs plant since its construction in 1998. Seven Springs Applies for a Permit Renewal Seven Springs submitted an application to the District on March 15, 2019, to renew its water use permit. In a section of the application entitled “Water Use Category,” Seven Springs marked a box indicating its intended water use was “commercial/industrial.” The application gave the following examples of commercial/industrial uses: “service business, food and beverage production, cooling and heating, commercial attraction, manufacturing, chemical processing, [and] power generation.”2 Seven Springs included supporting information with its application. With regard to “impact evaluation,” Seven Springs stated that: [n]o increase from the current permitted groundwater withdrawal volumes is requested. The current permitted withdrawal of 420.48 million gallon[s] per year (MGY) and average annual daily rate (ADR) of 1.152 million gallons per day (MGD) represents between 0.6% and 0.9% of the combined 2 That was the only Water Use Category that had any connection to extracting water and piping it to a facility for bottling. The other categories were agricultural, landscape/recreation, mining/dewatering, public supply, environmental/other, institutional, and diversions/impoundments. Ginnie Springs complex flow rate which has been approximated to range between 131 and 191 MGD. For reference, the 2018 Suwannee River Water Management District (SRWMD) permitted groundwater withdrawals within the Ginnie Springs complex springshed for agriculture is approximately 29 MGD which represents between 15% and 22% of the approximated spring flow. Seven Springs identified the “requested water use” by stating “Seven Springs is a bulk water provider to the adjacent bottled water facility. Additional information will be provided upon request.” Seven Springs completed a “Water Balance Worksheet” indicating it planned to withdraw 1.152 mgd from an aquifer and use 1.152 mgd as “bottled water for consumer consumption.” The District issued its first request for additional information (“RAI”) on April 2, 2019, requesting that Seven Springs: [p]rovide the following information in order to justify that the requested beverage processing allocation is [a] reasonable-beneficial [use] and [consistent] with the public interest: A market analysis; A schematic of water uses from the withdrawal point to the facility; and Schedule of construction and completion for any proposed bottling facility expansion The District also asked Seven Springs to provide the following information in order to justify the requested beverage processing demand: A facility water budget, indicating water used for each individual process, potable uses, and fire suppression (if fire suppression does not come from an isolated source; and An account of all water losses and conservation practices throughout the facility. Seven Springs responded via a letter dated June 27, 2019. In response to the District’s request for information justifying that the requested beverage processing allocation is a reasonable-beneficial use and consistent with the public interest, Seven Springs stated, in pertinent part, that: [w]ater sourced from the withdrawal locations P-1 and P-2 is routed via underground pipeline to the 127,992 square foot Nestle Waters of North America (NWNA) High Springs Bottling Facility (Facility) . . . The underground pipeline supplies water only to the NWNA Facility. The NWNA Facility also utilizes two fire wells as shown on Figure 1 for fire suppression supply. As for the District’s request for a facility water budget and an account of all water losses and conservation practices throughout the facility, Seven Springs stated, in pertinent part, that “all but between 3-4% of the requested water withdrawal will be used within the NWNA Facility for bottled water use.” Seven Springs also stated that “[w]ater losses at the NWNA Facility range from 3-4% and are from net fills, cleaning and leaks.” Seven Springs attached a letter from Nestle’s Natural Resources Manager describing the market for bottled water and the Nestle-owned facility to which the water at issue was to be piped: Nestle Waters North America (NWNA) reports to Nestle Waters and is the world’s leading bottled water company with an estimated 11 percent of the world’s market share with 51 bottled water brands while employing nearly 31,000 at over 91 factories as of 2017. NWNA is the third largest non-alcoholic beverage company in the United States by volume and offers 11 bottled water brands. Production volumes at the NWNA High Springs Bottling Facility (Facility) are influenced by a variety of factors including (but not limited to) weather, market demand, the cost of fuel and electricity, and overall production efficiency. As a result, it is difficult to predict a “straight-line” trend for long-term usage volumes over time. However, NWNA continues to project steady, solid market annual growth rates for bottled water in the neighborhood of 2.1% over the next ten years. The Facility is in the process of adding bottling capacity, and expects significant increase in production volumes equal to the requested annual average daily withdrawal volume of approximately 1.152 million gallons of spring water by Seven Springs Water Company. The District issued a second RAI on July 12, 2019, asking Seven Springs to provide the following information: The market analysis and the planned facility expansion must justify the requested groundwater demand of 1.1520 mgd. The highest reported water use at the facility over the last 4 years was 0.2659 mgd. Please provide the data used to calculate the 2.1% projected market growth and a schedule of construction/implementation for the bottling facility expansion reported [in] Attachment A as justification for the requested groundwater use. Please provide a facility water budget, indicating water used for each individual process, potable uses, and fire suppression. The water budget should include water losses throughout the facility. A facility water budget may be submitted in the form of a schematic or table and all water uses must add to the requested groundwater demand of 1.1520 mgd. Seven Springs submitted a response on October 31, 2019, providing the following explanation regarding the projected market growth and the bottling facility expansion: On 28 December 2018, Nestle Waters North America (“NWNA”) purchased the High Springs Plant (“Plant”) that Seven Springs has supplied with spring water by pipeline for over twenty years. See Attachment A to this letter. Seven Springs has contracted with NWNA to continue to supply the Plant with spring water. NWNA has agreed to purchase spring water from Seven Springs up to the permitted allocation of 1.152 million gallons per day (“mgd”) annual average for a period of time that exceeds the requested 5-year permit duration. NWNA is one of the largest non-alcoholic beverage companies in the United States by volume and offers 11 bottled water brands. The industry growth projections for bottled water consumption described in Section III of the attached Seven Springs Report show that demand is enough to utilize the requested/permitted amount with the 5-year duration of the proposed permit. Originally the Plant was designed to have four production lines for bottled water, but only two have been built to date. NWNA began operating the Plant in February of this year and has already completely renovated one production line and has begun work on the second line. When all four lines are up and running, the Plant will be capable of using all of the proposed/permitted annual average daily water allocation of 1,152,000 gallons. A schedule of construction/implementation for the Plant expansion is set forth in Section IV of the attached Seven Springs Report. Seven Springs attached a revised water balance worksheet reaffirming that it planned to extract 1.152 mgd from an aquifer. The District issued a third RAI on November 25, 2019, seeking the following information and citing pertinent portions of the Water Use Permit Applicant’s Handbook (“the Handbook”) that has been incorporated by the District into chapter 40B: In the RAI response dated October 31, 2019, reference was made to a contract between Nestle Waters North America (NWNA) and Seven Springs Water Company. If this contract is a written document (paper or electronic), please provide a copy of the contract (with proprietary or sensitive information redacted, if necessary). The non- redacted portion of the contract [or] other document provided must, at a minimum, demonstrate the asserted reasonable-beneficial use and the parties’ respective obligations to supply and purchase water and the term thereof. [Section 2.3.4.1 (i), A.H.] The reported maximum use at the facility is 0.2659 mdg (SRWMD Water Use Reports for permit # 2- 041-218202). When the 4.7% annual growth rate is applied to the reported use, it does not result in 1.152 mgd at the end of the requested permit duration. Please provide justification for the requested 1.152 mgd allocation. [Subections 2.3.4.1 and (g), A.H.] The proposed capacity of product lines three and four is inconsistent with both the previous reported water use at this facility (0.24 mgd per product line, page 4 of the Geosyntec Report) and the current NWNA business practice (0.183-0.202 mdg per product line) at the Lee, FL facility. Please provide an explanation of why the capacities for product lines three and four are higher than previous business practices. [Subsections 2.3.4.1 (a) and (j), A.H.] The water budget provided (table 1 in section IV of the Geosyntec report) is unclear as to whether the entire requested allocation will be bottled within the facility located at 7100 NE CR340 in High Springs, FL, or if a portion of the requested allocation will be transported in bulk to another facility to be bottled. If bulk water transfer is anticipated, please provide the following information to demonstrate reasonable-beneficial use at the facility receiving the bulk transported water (tanker truck): Whether there is a need for the requested amount of water at the receiving facility; The location of the receiving beverage processing facility; Plan to convey water (quantity and frequency of transport) from withdrawal facility to the receiving beverage processing facility; A site plan for the receiving beverage processing facility; Schedule for completion of construction of the receiving beverage processing facility (if applicable); Contractual obligation to provide water for beverage processing (if applicable); Other evidence of physical and financial ability to process the requested amount at the receiving beverage processing facility; and Documentation (references, studies, contracts, etc.) that support the materials provided for [in] a. through g. (above). [Section 2.3.4.1., A.H.] Seven Springs responded to the third RAI on January 14, 2020. With regard to the contract sought by the District, Seven Springs stated the following: Please note that the District has not previously requested any information concerning a contract between Seven Springs and Nestle Waters North America (“NWNA”) in either the first RAI dated April 2, 2019 (“First RAI”) or the second RAI dated July 12, 2019 (“Second RAI”). Furthermore, Subsection 2.3.4.1, A.H., does not require contractual information [to] be submitted as part of a Water Use Permit application, but rather states that the District will consider certain information, which may include contractual obligations. Seven Springs has previously provided information in accordance with Subsection 2.3.4.1, A.H., demonstrating that the continued use is reasonable, beneficial, and in the public interest. Therefore, pursuant to Section 120.60(1), F.S., the District is not authorized by law or rule to require a copy of the contract for issuance of this straight renewal permit request. The contract contains information that is subject to a non-disclosure agreement between the parties and has propriety business information within it. As we discussed at our meeting with District staff regarding this matter, in order to address the specific terms in the contract that District staff inquired about, the parties have executed a Memorandum of Agreement (“MOA”) summarizing pertinent terms of the contract regarding exclusivity, duration and water quantity. The MOA is attached as Exhibit A. This MOA provides that NWNA and the applicant have entered into a contract in which NWNA is obligated to exclusively purchase spring water from the applicant to serve the NWNA High Springs Plant facility (the “Plant” or “High Springs Plant”), which NWNA owns and operates, up to the full permitted allocation for a period of time that significantly exceeds the requested 5-year permit duration. Seven Springs attached its Memorandum of Agreement (“the MOA”) with Nestle, but the MOA description of the parties’ contract was limited to the following: The term of the Contract extends to 2096. The Contract requires NWNA to purchase from Seven Springs all water pumped, extracted, processed or sold by NWNA through the High Springs Plant, with such amounts only being limited by the average and maximum daily limits set forth in water use permit No. 2-93-00093 (together with any modifications and renewals thereof) (“Permit”). The Contract requires Seven Springs to be the exclusive source for all water bottled at the High Springs Plant.[3] 3 The MOA was amended on May 27, 2020, to add a provision stating that “[a]s long as NWNA meets its payment obligations under the Contract, the Contract requires Seven Springs to exclusively provide all water withdrawn under the Permit to NWNA’s High Springs Plant.” With regard to the request for information regarding product lines 3 and 4 at Nestle’s High Springs plant, Seven Springs stated in the January 14, 2020, letter that: as explained in the Second RAI response, NWNA is expanding the High Springs Plant and has already completed the renovation of one production line and has begun work on the second. As previously explained, when all four (4) lines are up and running, the High Springs Plant will have the production capacity to utilize all of the proposed/permitted annual average daily water allocation of 1,152,000 gallons. NWNA intends on utilizing the entire permitted quantity for its product distribution throughout the proposed five- year permit term and beyond. The justification for the requested 1.152 million gallons per day (“mgd”) is the agreement by NWNA to purchase the spring water from the applicant for the permit duration as well as the expansion of the production lines at the High Springs Plant. * * * To date, NWNA has spent over $40 million on updating, renovating and other work at the High Springs Plant. Additionally, Phase I of the High Springs Plant expansion project, which has not yet been completed, is budgeted to have a projected construction budget of $27.6 million. The large amount of capital invested and expended by NWNA on the Plant is a clear indication that the use is both real and of NWNA’s intent to utilize the full renewal quantities. Seven Springs offered more information regarding the capacity of the High Springs plant: Bottled water lines are designed for each facility and are not purchased “off the shelf,” but designed specifically for each facility and use. Through time, increasingly better and more efficient bottling technology and equipment has been developed. NWNA has already completely renovated the first line at the Plant, as seen by the District staff at the recent site tour, which has increased the efficiency, speed, and production capacity at the Plant. The old line that was replaced could produce approximately 700 bottles per minute, whereas the new line produces up to approximately 1,300 bottles per minute. Current projections indicate that the renovation of the second line will be completed in year 2020. This will complete Phase 1 of the renovation and expansion of the Plant. Phase 2 of the Plant expansion will include two additional lines that will be engineered and custom designed to further meet the capacity and product needs for the facility. In the second RAI response, it was stated that NWNA is expanding the High Springs Plant to add proposed lines 3 and 4, has already completely renovated one production line and begun work on renovating the second. This information was provided in response to RAI item 1 of the Second RAI which, in relevant part, asked for “a schedule of construction/implementation for the bottling facility expansion reported [in] Attachment A as justification for the requested groundwater use.” The increase in capacity in new lines 3 and 4 is planned as part of the Phase 2 expansion. As explained above, each line can be designed for the capacity needed. As for the District’s inquiry about whether a portion of the requested allocation was to be tankered to another facility, Seven Springs stated the following: There is no amount of water included in the water budget for tankering water. Seven Springs (the applicant) does not tanker any water to the Plant; all spring water is conveyed by pipeline to the Plant. Nor does Seven Springs have any plans to tanker water during the term of the permit.[4] Please note that the District did not request any 4 As will be discussed herein, Seven Springs subsequently changed its position on tankering. information regarding bulk transported water (tanker truck) in either its First RAI dated April 2, 2019 or its Second RAI dated July 12, 2019. Finally, Seven Springs concluded its response to the third RAI by stating it was not going to respond to any more requests for information: The information Seven Springs has submitted to the District to date demonstrates reasonable assurance that the Application meets the conditions for issuance for renewal of an existing water use permit at the same allocation of water quantities, and the Application is complete. Some of the questions asked in the Third RAI as indicated are not authorized by law or rule. Therefore, pursuant to Section 120.60(1), F.S., Seven Springs hereby requests that the District deem the Application complete and proceed to process its proposed agency action to renew its water use permit. On March 2, 2020, Warren Zwanka, the Director of the Division’s Resource Management Division, wrote a memorandum to the District’s Deputy Executive Director for Business and Community Services stating that the District’s staff was recommending that the District’s Governing Board deny Seven Springs’ renewal application. In doing so, Mr. Zwanka gave the following explanation: Section 40B-2.361(2), Florida Administrative Code (F.A.C.) provides that all permit renewal applications shall be processed as new permits, and shall contain reasonable assurances that the proposed water use meets all of the conditions for issuance in rule 40B-2.301, F.A.C., and the Water Use Permit Applicant’s Handbook (Handbook). Section 2.3.4.1 of the Handbook contains factors that must be considered for beverage processing water uses. The definition of “beverage processing use” set out in section 1.1 of the Handbook specially includes the sealing of drinkable liquids (including bottled water, as defined in section 500.03(1)(d), F.S.) in bottles, packages, or other containers and offered for sale for human consumption. The application as submitted does not provide reasonable assurances that the proposed beverage processing use is reasonable-beneficial and consistent with the public interest as described in the attached staff report. The staff report referenced by Mr. Zwanka described the Handbook provisions that Seven Springs’ renewal application supposedly failed to satisfy: Section 2.3.4.1(i) requires the District to consider the contractual obligation to provide water for beverage processing. The applicant declined to provide a copy of its contract with NWNA and, instead, provided a memorandum of this contract. This memorandum does not show that [the] applicant is obligated to provide any or all of the requested allocation to NWNA. Therefore, the required reasonable assurance has not been provided. Section 2.3.4.1(j) requires the District to consider evidence of the physical and financial ability to process the requested amount of water. The applicant has requested an allocation of 1.1520 mgd. As part of the application, the applicant reported the actual use of water at the facility for the years 1995 through 2019. The highest reported actual use of water at the facility was for 2006, which showed an average annual water use of 0.3874 mgd (page 63 of the January 14, 2020 RAI response). As the highest reported actual use of water in the facility was significantly less than the requested allocation, the previous use does not provide evidence of the physical ability to process the requested allocation. The applicant has asserted that the facility is being renovated to have the physical ability to process the requested allocation. But the applicant has failed to provide sufficient evidence showing that such renovations will create the necessary physical ability. Therefore, the required reasonable assurance has not been provided. Section 2.3.4.1(c) through (f) and (h) require the District to consider certain matters concerning the beverage processing facility or facilities where the use will occur. The applicant has only provided information for the High Springs facility, but has provided no reasonable assurance that the High Springs facility is the only beverage processing facility where the use of the requested allocation will occur. Therefore, the required reasonable assurance has not been provided. The DOAH Proceedings On March 6, 2020, Seven Springs filed a Petition seeking to challenge the District’s preliminary decision to deny the renewal application.5 The District referred this matter to DOAH on March 9, 2020, DOAH Case No. 20-1329 was assigned to this matter, and the undersigned issued a Notice on March 24, 2020, scheduling a final hearing for July 21 through 23, 2020. Seven Springs filed a Motion in Limine on June 18, 2020, seeking to prohibit the District from raising grounds for denial that were not set forth in the staff report referenced by Mr. Zwanka. Based on its review of discovery responses, Seven Springs argued that the District was preparing to provide testimony or evidence on issues that were not identified in the staff report. On June 29, 2020, the undersigned issued an Order partially granting Seven Springs’ Motion in Limine: The instant case is before the undersigned based on a “Motion in Limine” filed by Petitioner on June 18, 2020. After considering the arguments set forth in the Motion in Limine and the Response thereto, the undersigned rules that, at this point, the potential 5 The staff recommendation in the District’s March 3, 2020, notice and the enclosed Water Use Technical Staff Report is a proposed agency action which Seven Springs could challenge by petitioning for a formal administrative hearing under section 120.57, Florida Statutes. See generally Hillsboro-Windsor Condo. Ass'n v. Dep't of Nat. Res., 418 So. 2d 359, 361–62 (Fla. 1st DCA 1982) (treating a DNR staff recommendation as the equivalent of a notice of intent of proposed final agency action). grounds for denying Petitioner’s renewal application shall be limited to the reasons set forth in the “Water Use Technical Staff Report” dated February 27, 2020. See M.H. v. Dep’t of Children & Fam. Svcs., 977 So. 2d 755, 763 (Fla. 1st DCA 2008)(stating that “in this case, DCF offered a precisely formulated reason for its denial of the renewal of the Foster Parents' license. At the administrative hearing, the ALJ properly restricted his consideration of the matter to the specific question that DCF itself had framed as the issue to be decided.”). In order for Respondent to properly raise additional reasons for denying Petitioner’s renewal application, it is incumbent on Respondent to promptly set forth those grounds in a formal pleading and demonstrate that Petitioner will suffer no prejudice. See generally Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)(stating that “[p]redicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint.”) Respondent fails to cite any controlling authority to support its argument that disclosure of additional grounds of denial during the discovery process amounts to sufficient notice. On July 8, 2020, the parties filed a joint motion requesting that the final hearing be continued for at least 30 days, and the undersigned issued an Order on July 23, 2020, rescheduling the final hearing for October 14 through 16, 2020. The parties filed another joint motion on July 31, 2020, asking that jurisdiction be relinquished to the District. In support thereof, the parties stated that Seven Springs and the District’s staff had reached a proposed settlement agreement that was contingent on the approval of the District’s governing board. After the relinquishment of jurisdiction, the District’s staff would recommend to the governing board that “a proposed water use permit renewal be issued to [Seven Springs] consistent with [the] Water Use Technical Staff Report which is attached hereto as Exhibit ‘A.’” The aforementioned exhibit indicated that Seven Springs was seeking a permit for “beverage processing” and set forth 27 “conditions for issuance of permit number 2-041-218202-3.” The seventh and eight conditions respectively specified that the “[u]se classification is Beverage Processing” and that the “[s]ource classification is ‘Groundwater.’ Among the proposed conditions was that Seven Springs “is authorized to withdraw a maximum of 0.9840 mdg of groundwater for beverage processing use.” During the course of the final hearing, Seven Springs committed to the reduction of the withdrawal to 0.9840 mgd and to a corresponding permit limitation. The 25th and 26th conditions addressed where the water could be bottled: Except as may be expressly provided in the permit conditions, the entire groundwater allocation authorized by this permit shall be bottled at the Gilchrist County facility or otherwise used at the Gilchrist County facility for potable uses, equipment cooling, line flushing, and other industrial uses. As used in the permit conditions, the term “bottled” means sealed in bottles, jugs, and/or similar containers that are intended to be later offered for retail sale for human consumption. As used in the permit conditions, the term “Gilchrist County facility” means the manufacturing facility located at 7100 NE CR 340, High Springs, Florida 32643 in Gilchrist County, Florida. A portion of the groundwater allocation authorized by the permit may be bottled at the Madison County facility. As used in the permit conditions, the term “Madison County facility” means the manufacturing facility located at 690 and 1059 NE Hawthorn Avenue, Lee, Florida 32059 in Madison County, Florida. (The groundwater allocation authorized by the permit is not based on any use at the Madison County facility. The permit allocation is being granted based on the expectation that the product line build-out at the Gilchrist County facility will be completed in accordance with the schedule provided in the application documents submitted on November 1, 2019.)[6] The District’s Governing Board held a public meeting on August 11, 2020. When Seven Springs’ application came up for consideration, the following comments were made: Vice Chairperson Quincey: I would – I would like to move that we table the Seven Springs permit application. And the reason why I’m asking to table this is because we’ve looked at the application; and, as you look through, other water bottling facilities that’s in our district, we have always had the actual user of the water bottling permit on the application. So, in my opinion, we need to have Nestle as a co- applicant for – for this permit. So I think them being – if I understand it correctly, the well is on one property; but then, once it leaves there, it enters into a pipeline which goes to a facility. And the water – all of the water is actually used by Nestle and utilized by Nestle. So, with that being said, I think that they need to be co-applicants where we can be directly relating to them as we go through this process. * * * Board Member Schwab: I think that the science is sound on this permit. Seven Springs has gone through the process of applying for it, and they’ve met all the criteria. To have another person co- apply on the permit, I personally don’t think it’s necessary. I think the ones that are -- just because 6 Seven Springs’ proposed consumptive use of water, even with the proposed tankering of water to the Madison County Plant, is not an interdistrict transfer of water that is regulated by section 373.2295. you’re using the water somewhere else other than who is – who owns the property that the water is being pumped off of as well as the – that is applying for the permit and who hasn’t had the permit in the past, I just don’t necessarily agree with that right there. I’d rather --- I’d rather go ahead and do – take a vote and use what we’ve done right now in the way it is. * * * Chairperson Johns: Is there a rule or is there a legality that we need to look at? I mean, is there a rule that would need for Nestle to be a co-applicant or have their name on an application? And I don’t know whether you can help us with that or not. Mr. Reeves[7]: I think there is certainly – there is certainly support for that in our rules. I think that’s certainly something we would look at in the Board’s discretion. I think they’re – the issue I guess is what you’ve got is you’ve got a situation where the applicant owns the real property where the water is coming off of. To get the right to use the real – the water, they have to show a use; and they have to show what is going to be done with that water. In this case, the ultimate user is not on the permit. I think that’s Mr. Quincy’s point is that ultimate user is not on the permit, and so does that ultimate user need to be an applicant? Yeah, I think that is within the Board’s discretion in my opinion. * * * Vice Chairperson Quincy: I think that we should have that co-applicant, and I think they need to be part of when we say, [these are] the restrictions, they’re the ones using it, they need to agree to the restrictions. If they’re – whatever – whatever it is because, if you don’t have them, they’re the ones – 7 Mr. Reeves is the Governing Board’s counsel. However, the transcript from the August 11, 2020, Governing Board meeting does not give Mr. Reeves’s first name actually the ones using the water. It’s not the folks that we’re giving the permit to. They’re just pumping it out of the ground. * * * Chairperson Johns: This is a difficult vote. And I know everyone has looked at this on the Board. It’s a very important decision in many ways. I do feel like that [for] all of the reasons that Mr. Richard has said that I feel like that permit has been vetted well. But I do think that the – having their name on the permit is not a bad idea if we are going to – if theirs is going to be the ones that are using the water and have to respect the – the permit and the permit obligations. The Governing Board then took a vote and elected to table Seven Springs’ application. On August 12, 2020, the District referred this matter back to DOAH where it was assigned DOAH Case No. 20-3581. On August 14, 2020, the District filed a “Motion to Amend Grounds for Denial” (“the Motion to Amend”) arguing that Seven Springs’ application fails to satisfy section 2.1.1 of the Handbook entitled “Legal Control Over Project Site”: Applicants shall demonstrate the legal right to conduct the water use on the project lands or site. Legal right is demonstrated through property ownership or other property interest, such as a lease, at the project site. Applicants shall provide copies of legal documents demonstrating ownership or control of property through the requested permit duration. The recommended permit duration shall take into consideration the time period of the legal interest in the property. The requirements of this section shall not apply to proposed water uses reviewed in accordance with 40B-2.025(2), F.A.C., under the Florida Power Plant Siting Act. The District also argued that Seven Springs’ application fails to satisfy section 2.3.1 of the Handbook entitled “General Criteria”: Under section 373.223, F.S., in order to receive an individual permit, an applicant must demonstrate that the proposed water use is a reasonable- beneficial use of water. As part of the demonstration that a water use is reasonable- beneficial, the applicant must show demand for the water in the requested amount. This section describes the factors involved in determining whether there is demand and the appropriate permit allocation for a proposed water use. Demonstration of need requires the applicant to have legal control over the project site, facilities, and for potable water supply, the proposed service area, as required in sections 2.1.1 and 2.1.2. The allocation permitted to serve the applicant’s need for water must be based on the demonstrated need. Sections 2.3.2 through 2.3.4 identify the components of demand that must be identified by applicants for individual permits for each water use type. The District argued that Seven Springs’ application for a renewal permit should be denied because it: does not meet the above quoted provisions of the Applicant’s handbook because such application does not demonstrate (or even assert) that SEVEN SPRINGS has the legal right to conduct the water use on the project lands or site and further does not show (or even assert) that SEVEN SPRINGS has legal control over the project site and/or facilities. Seven Springs responded to the Motion to Amend, in part, by stating the following: In March 2019, Seven Springs submitted its application for the renewal of its existing permit. The requested renewal is for the same water allocation. In other words, the application does not propose any change in the use type, permittee, or allocation from what is currently permitted. Yet, just short of a year and five months after the application was filed, the District has developed a new theory to reject the renewal. On August 12, 2020, the District’s counsel notified Seven Springs that if Nestle Waters North America did not agree to be a co-applicant on the permit, the District would file its Motion to Amend. * * * Assuming arguendo that the District’s new position is correct, as the District’s motion makes clear, this alleged “error or omission” is glaringly obvious, and, therefore, there is no excuse for the District’s failure to timely raise the issue. More importantly, regardless of whether the District is otherwise permitted to amend its 120.60(3) agency action notice letter, the District is still prohibited by section 120.60(1) from denying Seven Springs’ permit for failure to correct this “error or omission” found in the initial application and continuing from the issuance of the original permit. After being granted leave to file a reply, the District replied, in pertinent part, as follows: SEVEN SPRINGS asserts that the DISTRICT cannot amend its notice of denial under the provisions of § 120.60(1), Fla. Stat., which provides, “An agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period.” The problem with this argument is that the DISTRICT is not seeking to amend the notice of denial to assert any, “failure to correct an error or omission or to supply additional information.” As far as the requested amendment is concerned, there is no error or omission nor additional information to be supplied. SEVEN SPRINGS has represented numerous times that Nestle Waters of North America owns the facility which will be bottling the water allocation. The applicable rules of the DISTRICT require the applicant to have control of the site where the water use will occur (Handbook at 2.1.1 Legal Control over Project Site, “Applicants shall demonstrate the legal right to conduct the water use on the project lands or site.”) (Handbook at 2.3.1 General Criteria, “Demonstration of need requires the applicant to have legal control over the project site, facilities, . . .”). The use of the water occurs where it is bottled (Handbook at 1.1(13) Beverages Processing Use – The sealing of drinkable liquids (including bottled water, as defined in section 500.03(1)(d), F.S.) in bottles, packages, or other containers and offered for sale for human consumption”). The amendment requested by the DISTRICT is not an amendment to assert a failure to correct an error or omission or to supply additional information. Rather, it is an amendment to assert that a particular DISTRICT rule should be applied to the application which, for the purposes of the amended grounds, has no error [or] omission or need of additional information. As all the amendment seek[s] to do is apply an additional DISTRICT rule[,] the proscriptions of § 120.60(1), Fla. Stat., do not apply. The undersigned issued an Order on September 16, 2020, denying the Motion to Amend based on the following reasoning: In the course of arguing that Seven Springs’ application should be denied, the District and Petitioners are not necessarily limited to the grounds set forth in the District’s March 3, 2020, letter. See generally DeCarion v. Dep’t of Envtl Reg., 445 So. 2d 619, 620 (Fla. 1st DCA 1984)(rejecting an argument that the Department of Environmental Regulation was “locked in” to the reasons for denial set forth in its letter of intent to deny a permit application). However, section 120.60(1), Florida Statutes (2020), forecloses certain grounds for denial from being raised at this stage of Seven Springs’ permit application proceeding. The aforementioned statute provides in pertinent part that: [u]pon receipt of a license application, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period . . . An application is complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired. Whether the Motion to Amend and Petitioner’s Motion to Amend will be granted turns on whether Seven Springs’ alleged failure to demonstrate legal right and legal control in its application is a pure substantive deficiency undermining the merits of Seven Springs’ application or a paperwork deficiency that could possibly have been corrected via the provision of additional documentation. That distinction was described by the Honorable John G. Van Laningham in MVP Health v. Agency for Health Care Administration, Case No. 09-6021 (Fla. DOAH April 22, 2010), rejected in part, Case No. 2009012001 (Fla. AHCA May 26, 2010)): Simply put, the failure of an applicant to meet the criteria for a license, which results in a denial on the merits, is not, as a logical matter, equal to the failure of an applicant to timely provide requested information (or correct an identified error or omission), which results, as a procedural matter, in a refusal to consider (or to deny) an application consequently deemed to be incomplete. It is one thing, in other words, to say, based on all the necessary information, that a person is ineligible for licensure. It is another thing to say that the person’s eligibility cannot and will not be determined because the person has failed to provide all of the necessary information upon which such a determination must be based. The Water Use Permit Applicant’s Handbook indicates that the new grounds for denial urged by the District and Petitioners are issues that Seven Springs could have potentially corrected if it had been provided the timely notice required by section 120.60(1). For instance, Section 2.1.1. indicates that “legal right” can be demonstrated by providing a legal document such as a lease. Section 2.3.1. refers to demonstrating “legal control,” and that requirement could certainly be satisfied by the provision of legal documents. In sum, the new grounds for denial urged by the District and Petitioners are in the nature of alleged deficiencies that Seven Springs could have potentially corrected if it had been given the notice and opportunity required by section 120.60(1). While the District asserts that Seven Springs has represented numerous times that Nestle owns the facility that will be bottling the water allocation, that assertion (even if true) does not excuse the District from timely notifying Seven Springs of the perceived omission in its application and giving Seven Springs an opportunity to correct that perceived omission. Now that the 30-day notification period in section 120.60(1) has passed, the District is foreclosed from basing denial of Seven Springs’ application on a failure to submit documentation to demonstrate compliance with Sections 2.1.1. and 2.3.1. See § 120.60(1), Fla. Stat. (mandating that “[a]n agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period.”). In a Motion for Reconsideration, the District argued that: SEVEN SPRINGS does not bottle the water and does not propose to bottle the water. SEVEN SPRINGS sells the water to a local facility, apparently owned or legally controlled by someone else, to be bottled. As SEVEN SPRINGS does not bottle the water, it is not possible for SEVEN SPRINGS to “demonstrate the legal right to conduct the water use” as required by 2.1.1 of the Applicant’s Handbook. This is not a “paperwork deficiency.” This is a “substantive deficiency” which is shown on the face of SEVEN SPRINGS’ application. The DISTRICT’s motion to amend should be granted so this issue can be conducted at the final hearing. The undersigned issued an Order on September 25, 2020, denying the District’s Motion for Consideration: The instant case is before the undersigned based on Respondent’s “Motion for Reconsideration of Order Denying Motion to Amend” (“the Motion for Reconsideration”) filed on September 21, 2020. After considering the arguments set forth therein, the Motion for Reconsideration is DENIED based on the reasoning set forth in the “Order Denying Motions to Amend” issued on September 16, 2020. However, the undersigned provides this clarification. The issue in the instant case is decided by the fact that all of the information available to the undersigned demonstrates that the alleged deficiency in the Seven Springs Water Company’s (“Seven Springs”) application is of the type that potentially could have been corrected by the provision of additional information. Thus, this alleged deficiency is something that could have, and should have, been the subject of a notice to Seven Springs within 30 days of Respondent receiving Seven Springs’ application. See § 120.60(1), Fla. Stat. (2020). Regardless of whether Seven Springs was actually capable of correcting that alleged deficiency, any other ruling would render the pertinent requirement set forth in section 120.60(1) meaningless. The District filed a “Second Motion in Limine” (“the Second Motion in Limine”) on September 28, 2020, arguing that: The only testimony and evidence allowed at the final hearing herein should be required to be related to SEVEN SPRINGS’ presently filed permit application, and the permit terms and conditions requested by SEVEN SPRINGS therein. Testimony and evidence of any permit terms and conditions not included or requested in SEVEN SPRINGS’ presently-filed application should be precluded from being introduced into evidence or considered at the final hearing. Seven Springs responded, in part, as follows: Further, the District’s position that “the only testimony and evidence allowed at the final hearing should be required to be related to SEVEN SPRINGS’ presently filed permit application” ignores the fact that the District has already received multiple documents addressing the few issues raised by the District in its March 3, 2020 proposed agency action. In fact, some of those documents are currently available in the District’s online permitting file for the Seven Springs’ permit. This publicly accessible permit file includes Seven Springs’ engineering report titled “NWNA High Springs Water Consumption Viability Analysis” prepared by Adam Thibodeau and dated July 30, 2020, and the District’s engineering report titled “NWNA High Springs Water Consumption Annual Daily Usage Estimate” prepared by Tom Rutledge for the District and dated July 30, 2020. Additionally, the District’s own summary/description in its online permit file identifies the requested allocation as 0.984 MGD (See Exhibit A), which is the reduced allocation contained in the July 30, 2020 Seven Springs’ expert report and accepted in the District’s expert report. Additional information already reviewed or prepared by the District as part of this proceeding should not be precluded from being considered as evidence, including the amended memorandum of agreement between Seven Springs and NWNA dated May 27, 2020, provided to SRWMD in June 2020, and the additional permit conditions contained in the Technical Staff Report attached to the Stipulation and Joint Motion for Relinquishment of Jurisdiction and published online by the District in its August 4, 2020 Governing Board Agenda Package. No statute, rule or case law supports limiting or precluding consideration of this information which has been in the District’s possession for months and is directly relevant to the issues in this proceeding (i.e., providing reasonable assurances of the applicable permitting criteria). Nor is there any rule or statute limiting the information which may be considered in a de novo administrative hearing to only the information “presently on file with the DISTRICT” based upon some arbitrary date chosen by the District. The District’s argument that “amendments may not be made at the last minute and under circumstances which prejudice other parties,” is without merit as any “changes” to the Seven Springs’ application have already been discussed with, reviewed by, and accepted by the District months before the final hearing date. The District’s reliance upon City of West Palm Beach v. Palm Beach County, 253 So. 3d 623 (Fla. 4th DCA 2018), the only case cited to in the District’s Motion, is misplaced. In City of West Palm Beach, “[t]he amended application included revised construction plans, a redesigned storm water management system, a nutrient loading analysis, a compensatory mitigation plan addendum, and a new cumulative impact assessment” that were submitted only one week prior to the final hearing. Id. at 625. To the extent there has been any “amendment” or additional evidence provided to support issuance of the Seven Springs permit, it is Seven Springs responding to the District’s three alleged basis for denial, all asserting more information was required. The Amended Memorandum of Agreement provided the response the District found sufficient to address the first basis for denial; the Seven Springs expert report dated July 30, 2020 provided the response to address the District’s second basis for denial; and the two additional permit conditions (quoted below in footnote 4) were provided by the District to address the third basis for denial. The District’s expert report also provides evidence that the High Springs Plant, as proposed, has the capacity and ability to use the 984,000 gpd annual average water allocation and satisfies the second basis for denial. None of the [grounds] for denial at issue in this proceeding include any environment or resource protection criteria, nor do they require any new complex evidence to be developed. Unlike City of West Palm Beach, here the District is aware of Seven Springs’ acceptance of the reduced allocation and there are no “highly technical” amendments being proposed. The District is fully aware of, and has had ample opportunity to review the responses to the basis of denial that have been provided to, or suggested by, it in this proceeding. It is ironic that the District is continuing to request new information (discussed below) to satisfy one of the basis for denial while, at the same time, attempting to limit Seven Springs to only what is in its “current” permit file. The undersigned issued an Order on October 13, 2020, denying the District’s Second Motion in Limine on the basis that the District had failed to demonstrate that it was in danger of being prejudiced. Findings Specifically Relating to the Grounds for Denial The District’s first basis for denial asserts that the MOA failed to show that Seven Springs is obligated to provide “any or all of the requested allocation to NWNA.” When one considers the MOA, the amended MOA, and the 25th and 26th conditions negotiated between Seven Springs and the District’s staff, the greater weight of the evidence demonstrates that the entire groundwater allocation will be bottled at the Nestle plants at High Springs and Madison. As a result, this first basis cannot support denial of Seven Springs’ permit application. With regard to the second ground for denial, the 21st condition negotiated between Seven Springs and the District’s staff reduced the requested allocation from 1.152 mgd to 0.984 mgd. The testimony and evidence presented at the final hearing demonstrated that there are currently two bottling lines in operation in the High Springs plant. Line 1 has been replaced since NWNA acquired the facility with a new “high–speed” line (at a cost of approximately $15 million) that fills 81,000 half-liter bottles per hour (“bph”), and Line 2 is an older 54,000 bph line that is undergoing renovations to a high–speed line. Although there are currently only two lines, NWNA has plans to buildout the High Springs plant so that it will have four high-speed lines. Seven Springs presented evidence and credible expert testimony of Adam Thibodeau, P.E., demonstrating that the High Springs plant will have four high-speed lines in operation within the proposed permit term of five years. The third high-speed line will be installed within the existing building. A building expansion will allow the addition of a fourth high-speed line. It is expected that the third and fourth lines added to the High Springs plant will be capable of producing at least 90,000 bottles per hour. The greater weight of the evidence supports a finding that the plans for expansion of the bottling plant production lines are sufficiently established. Mr. Thibodeau calculated the estimated daily water usage at the High Springs Plant using two separate assumed average line efficiency rates: 85 percent (the original number proposed by Mr. Thibodeau) and 77 percent (the number arrived at after discussions with the District’s expert). Mr Thibodeau testified that, on average, high-speed lines can operate at an overall 80 to 85 percent efficiency, and that both 85 and 77 percent are reasonable efficiency rates for the proposed lines. His testimony is accepted. Ultimately, the 77 percent efficiency rate was chosen, meaning water demand was calculated at 77 percent of the maximum line production (accounting for mechanical efficiency and planned and unplanned downtime/maintenance) for the four lines at the High Springs Plant once it is built out. This resulted in a demonstration of a 0.8740 mgd water demand for product water, and a 0.1100 mgd water demand for equipment cooling, line flushing, and other uses. Those numbers result in a cumulative total expected daily water usage of 0.984 mgd annual average for the High Springs plant. The District’s expert authored a report stating that his “evaluation would support a proposed average water usage of 0.984 million gallons per day annually.” In addition, the District’s expert testified that the 0.984 mgd figure was in the range of possible outcomes. In sum, the greater weight of the evidence demonstrated that the High Springs plant will have sufficient physical capacity to use the full requested allocation of water within the proposed five-year permit term.8 The District’s third basis for denial asserts that Seven Springs “has provided no reasonable assurance that the High Springs facility is the only beverage processing facility where the use of the requested allocation will occur.” The issue of tankering water to Madison is not part of the application, was subject to no RAI, and was not part of the original denial. It was raised, apparently, as part of settlement negotiations that were not accepted by the District. In keeping with the previous rulings limiting the District from adding grounds for denial, the undersigned does not accept that Seven Springs can simply amend its application at the hearing to add activities and add uses for the water that were not proposed. 8 The physical ability to process 0.984 mgd is satisfied by the High Springs plant without any reliance on tankering water to the Madison County plant. If Seven Springs wants to use the water from its High Springs wells at a facility other than the adjacent Nestle bottling plant, then it may propose that use in a request for a permit modification. However, because that use is not a part of either the application or the notice of agency action properly before this tribunal, it is not authorized by anything contained in this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Suwannee River Water Management District render a Final Order granting permit No. 2-041-218202-3 to the Seven Springs Water Company. DONE AND ENTERED this 20th day of January, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of January, 2021. COPIES FURNISHED: Paria Shirzadi Heeter, Esquire Manson Bolves Donaldson Varn, P.A. 109 North Brush Street, Suite 300 Tampa, Florida 33602 (eServed) Douglas P. Manson, Esquire Manson Bolves Donaldson Varn, P.A. 109 North Brush Street, Suite 300 Tampa, Florida 33602-2637 (eServed) George T. Reeves, Esquire Davis, Schnitker, Reeves and Browning, P.A. Post Office Drawer 652 Madison, Florida 32341 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson Varn, P.A. 106 East College Avenue, Suite 820 Tallahassee, Florida 32301 (eServed) Frederick T. Reeves, Esquire Frederick T. Reeves, P.A. 5709 Tidalwave Drive New Port Richey, Florida 34562 (eServed) Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601 (eServed) Hugh L. Thomas, Executive Director Suwannee River Water Management District 9225 County Road 49 Live Oak, Florida 32060 (eServed)
Findings Of Fact John Lopez was employed as an instructor at The Lemon Tree International Health Spa, Clearwater, Florida, from November 4, 1980, until he was involuntarily terminated on February 20, 1981. Lopez was hired by John Prevatt, the manager of the health spa who left some three weeks after CP was hired. Prevatt loaned CP a white smock to wear as part of the uniform prescribed for male instructors. Prevatt was replaced as manager by Paula Peters who, during the first few weeks she was manager, was at the spa only part of two or three days each week. Diane McDaniel, who was a counsellor at the Clearwater spa, was acting manager when Paula Peters was absent. During this period of time discipline and the enforcement of the uniform requirements for instructors were lax. McDaniel reminded CP he was supposed to wear a white smock but apparently did little else along these lines and CP did not purchase a smock. Instructors were also required to learn the "tour," a prepared speech that was to be given to prospective clients being shown around the facilities by the instructors. CP never learned the "tour" verbatim and expressed his displeasure with parts of this "tour" to other instructors. After being told several times by Paula Peters that he must wear a smock, CP purchased one in late December or early January. However, he never learned the "tour" although he was told he must learn the "tour" by Prevatt, McDaniel and Peters. Instructors escorting prospective members on tour were given a one or two percent commission of the membership fees of those escorted who joined the spa. Names of those escorted were written on the back of instructors' time sheets by the instructor. CP did not list the names of prospective members he took on tour on the back of his time sheets and he was never paid a commission for those who subsequently became members. CP was the only instructor who did not receive a commission. He was also the only one who did not place the names of those whom he took on tour on the back of his time sheets and the only instructor who acknowledged that he never really learned the "tour." Instructors were supposed to know the "tour" and follow the script to be eligible for the commission. At the time Lopez was hired he had a second job as a bartender and was told by Prevatt that he could leave at 3:00 p.m. (instead of 4:00 p.m.) on Wednesdays, Thursdays and Fridays to go to the other job. The evidence was unclear whether this information was passed to Peters by either CP or Prevatt or if she concurred with this arrangement. On several occasions Lopez was late reporting for work. He reported sick fewer days while he was employed than did some other instructors. On at least one occasion when CP's presence was desired to take prospects on tour after 9:30 a.m., CP was not available as he was taking a shower, shaving, etc. Other employees contended that CP spent most of his time in the reception room rather than in the male side of the spa where he was supposed to be. CP was fired by Paula Peters on February 20, 1981. Lopez testified that he was required to clean mirrors, glass and sweep up in the wet area and no other instructors were given similar chores. All of the employees called by Respondent testified that they performed these chores every day during slack periods as time permitted. The major shareholder of Respondent testified that continual cleaning of these spaces was essential to the operation of a successful health spa and was a chore demanded from all employees and that all instructors were required to wear the prescribed uniform. He further testified that considerable time had been spent developing the "tour" and that it was essential that all employees strictly follow the script prepared for the "tour" and not deviate therefrom. No evidence was presented that anyone employed by Respondent ever referred to CP as a Mexican or that he was fired because of his national origin. Exhibit 1 indicates that Celia Diaz was employed by Respondent from January 7, 1980, until September 20, 1980, and that Betty Gomez was employed from June 21, 1980, until October 6, 1980. Instructors are paid the minimum wage rate of $3.10 per hour and few remain for a long period of time. Some move up to receptionist and counsellor, but the increased salary is apparently not sufficient to keep even these in the spa employ for extended periods. Exhibit 1 indicates that the average time of employment for the eight listed thereon was slightly less than four months.
