The Issue This concerns the issue of whether wooden stakes utilized in the growing of tomatoes in the State of Florida are exempt from the Florida State sales tax under Florida Statute 212.08(5)(a). At the formal hearing, the Petitioner called as witnesses James Felix Price and George Marlowe, Jr. The Respondent called no witnesses. The Petitioner offered and had admitted three exhibits and the Respondent offered and had admitted into evidence two exhibits. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact are consistent with the findings herein they were adopted by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions in this Order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact The Petitioner, Pitch Pine Lumber Company, sells tomato stakes to tomato growers in Florida. As a result of these sales, the Petitioner was assessed and ordered by the Department of Revenue to pay sales tax due on the sales of tomato stakes. It was stipulated by and between Petitioner and Respondent that the amount in controversy is $11,723.26 and that if the exemption under Florida Statute 212.08(5)(a) does not apply then the Petitioner shall owe that amount plus interest and penalties if applicable from October 3, 1980. Tomato stakes are used in almost every area of Florida today which produces tomatoes. Approximately two- thirds of the 44,000 acres used to grow tomatoes in Florida utilize tomato stakes. The only area which does not utilize these stakes is the Dade County area and this is due to the coral rock soil conditions. The stakes which are used are wooden stakes. These stakes are driven into the ground and used to hold the tomato plants upright or vertical. This prevents the fruit of the tomato plants from resting directly on the soil. Tomato stakes and cotton cloth are both natural plant materials and contain cellulose. One of the benefits of using tomato stakes is that by holding the plant upright, the plant will form a natural canopy which then shades the fruit and prevents sun scalding and sunburning of the fruit. This shade is provided by the leaf canopy of the plant and the stakes themselves provide no shade. Another benefit of utilizing tomato stakes is increased insect control and decreased fruit loss. This is the result of the fruit of the plant being held up off the ground by the plant which is being held upright by the tomato stakes. Tomato stakes were used for this purpose in Florida as early as 1947 and 1948. By 1960, tomato stakes were being used extensively in Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Revenue enter a final order requiring the Petitioner to pay $11,723.26, plus interest and penalties, if applicable from October 3, 1980. DONE and ENTERED this 23rd day of September 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1983. COPIES FURNISHED: Roderick K. Shaw, Jr., Esquire Post Office Box 2111 Tampa, Florida 33601 Linda Lettera, Esquire Department of Legal Affairs The Capitol, LLO4 Tallahassee, Florida 32301 Larry Levy, Esquire General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32301 Randy Miller Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32301
The Issue The issues in this cause are whether respondent is guilty of violating F.S. 561.42(1) in that it did assist four retail vendors by giving gifts and/or guilty of violating F.A.C. Rule 7A-4.45 in that it failed to reflect on four invoices the complete addresses of four vendors and their signatures, and if so, whether a civil penalty should be assessed against respondent's license or such license should be suspended or revoked, pursuant to F.S. S. 561.29.
Findings Of Fact Having considered the testimony and evidence presented at the hearing, the following findings of fact are made: On or about June 1, 1975, Mr. George C. Gould went to respondent's place of business and obtained six to eight boxes containing 12,000 to 15,000 invoices. Four of these invoices form the basis for the present charges against respondent. Invoice No. 5327, dated January 23, 1975, contains the information, inter alia, that items were sold to "Magic Market number 139, Apal Pkway," License Number 47-164, and also that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 5331, dated January 23, 1974, is for "Inland Quick Stop, Hwy 20 and Cap. Circle", License No. 47-175, and indicates that one bottle of Boones Farm Strawberry Wine was delivered at no charge as a promotional item. Invoice No. 5332, dated January 23, 1974, is for "Tempo, W. Tenn. St." License No. 47-17, and indicates that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 6512, dated February 6, 1974, is for "Subway, W. Tenn. St.", License No. 47-145, and indicates that one bottle of Rhine was delivered as a sample at no charge. None of the above invoices contained the signature of the vendors. Mr. Monty Myers, President of respondent, acknowledged that technical breaches occurred when the bottles of wine were given to the vendors above listed. In mitigation, Mr. Myers stated that the giving of promotional gifts had been going on for some time, especially with the beer distributors. In May of 1975, Mr. Myers, other distributors and five persons with the Division of Beverage had a meeting. At this meeting Mr. Myers acknowledged that he had in the past given promotional items to vendors. Members of the Division of Beverage informed Myers and the others that after this May meeting, charges would be brought against those who gave away promotional items or gifts. No promotional items have been given by respondent since the May meeting. Myers further testified that he did not understand the extent of the address requirement, that the number 47 in the license number represents Leon County and that he would now be able to comply with the address requirements.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating F.S. s. 561.42(1) and F.A.C. Rule 7A-4.45, and that a civil penalty in the amount of $80.00 be imposed. Respectfully submitted and entered this 17th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Johns Building 725 South Bronough Street Tallahassee, Florida J. Klein Wigginton, Esquire 504 East Jefferson Street Tallahassee, Florida
The Issue Does the Florida Department of Agriculture and Consumer Services (Department)'s proposed rule 5E-1.023 constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: On February 2, 1996, the Department published in the Florida Administrative Weekly, Volume 22, Number 5, the text of proposed rule to be known as Rule 5ER-1.023, which the Department indicated that it intended to adopt. The proposed rule reads: 5E-1.023 Fertilizer. Procedures for Landowners and Leaseholders to Submit the Notice of Intent to Comply with Nitrogen Best Management Practices (BMPs). Definitions "Interim Measures" means primarily horticultural practices consistent with the fertilizer recommendations published by the University of Florida or the Florida Agricultural and Mechanical University, or modified by the Department, to reflect public input. "Notice of Intent to Comply with BMPs" means a notice of intent to comply with nitrogen Interim Measures and/or BMPs, or to no longer apply fertilizers or other soil-applied nutritional materials containing nitrogen. Notice of Intent to Comply with Nitrogen BMPs and all document requests made of the department must be submitted to the Environmental Administrator, Florida Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Tallahassee, Florida 32399-1650. Proof of providing Notice of Intent to the Department must be retained by the submitter. The Notice must contain the following information related to the implementation of the BMPs and Interim Measures: the name of the BMP or Interim Measures to be followed, the date of implementation, the name or other identification of the parcel or land unit upon which the practices will be implemented, the county(s) where said parcels are located, and the signature of the landowner(s) or leaseholder(s). The Department will consider requests to: (a) adopt Best Management Practices and Interim Measures as defined in this rule, other than those incorporated herein, in accordance with Section 576.045(3)(b), Florida Statutes; and, (b) modify adopted Best Management Practice and Interim Measures as defined in this rule based upon submission of adequate data in accordance with Section 576.045(3)(b), Florida Statutes. Approved Nitrogen BMPs Shadehouse Grown Leatherleaf Ferns. The BMP for Shadehouse grown leatherleaf ferns found in the University of Florida, Cooperative Extension Service, Institute of Food and Agricultural Sciences Bulletin 300 (published February 1995), Irrigation and Nutrient Management Practices for Commercial Leatherleaf Fern Production in Florida" is hereby adopted. Copies may be obtained from Central Florida Research and Education Center, Institute of Food and Agricultural Sciences, University of Florida, 2807 Binion Road, Apoka, Florida 32707. The associated record keeping requirements specified in "Record- keeping For The Nitrogen Best Management Practices For Shadehouse Grown Leatherleaf Ferns" dated 12-01-95 is also adopted. Copies are available from the Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Doyle Conner Building, Tallahassee, Florida 32399-1650. (a) Approved Nitrogen Interim Measures. Citrus. [The approved "Nitrogen Interim Measure For Florida Citrus", dated 12-01-95], and the associated recordkeeping requirements dated 12-01-95 [are hereby adopted and incorporated by reference into this rule]. Copies may be obtained from the Department of Agriculture and Consumer Services, Division of Agricultural Environ- mental Services, 3125 Conner Blvd. Doyle Conner Building, Tallahassee, Florida 32399-1650. The foregoing documents are incorporated by reference into this rule. [Emphasis added] Specific Authority 576.045 FS. Law Implemented 576.045. History - New Section 576.011(2), Florida Statutes, provides: (2) "Best-management practices" means practices or combinations of practices determined by research or field testing in representative sites to be the most effective and practicable methods of fertilization designed to meet nitrate groundwater quality standards, including economic and technological considerations. Because of the lack of research or field testing with citrus to determine the most practicable methods of fertilization of citrus in conjunction with nitrate groundwater quality standards, the Department is proposing the Nitrogen Interim Measure for Florida Citrus rather than Best-management practices for citrus. Interim Measures is not defined by statute. However, the Department has defined Interim Measure in proposed rule 5E-1.023. For 1, 2, and 3 year old citrus groves, the Approved Nitrogen Interim Measure For Florida Citrus (Nitrogen Interim Measure), dated 12-01-95, provides for maximum nitrogen (N) rates per calendar year to be determined by set amounts of N per tree. The range of annual N rates for groves four years old or older is set out in pounds per acre. For oranges the range is 120 - 240 pounds of N per acre per year. For grapefruit the range is 120 - 210 pounds N per acre per year. On February 21, 1996, Petitioners filed a Petition challenging the Department's proposed rule 5E-1.023 on the basis that the proposed rule was an invalid exercise of delegated legislative authority. More specifically, the Petitioners challenges the Nitrogen Interim Measure dated 12-01-95, and more particularly, that portion of the Nitrogen Interim Measure setting the range of annual N rates for grapefruit and oranges in groves four years old or older which Petitioners contend is arbitrary and capricious. GBS Groves, Inc. is a Florida corporation which owns a grapefruit grove in Polk County, Florida and such corporation is solely owned by James T. Griffiths and Anita N. Griffiths. Withers and Harshman, Inc. is a Florida corporation owning grapefruit groves in Polk County and Highlands County, Florida with its principal place of business located in Sebring, Highlands County, Florida. Petitioners would be substantially affected by the adoption of this proposed rule and thereby have standing to bring this action. The parties have stipulated that: on November 5, 1993, the Department gave notice in the Florida Administrative Weekly of its intent to adopt proposed rule 5E-1.023; and proposed rule 5E-1.023 implements Section 576.045(6), Florida Statutes, by: establishing procedures for landowners and leaseholders to submit notice of intent to comply with nitrogen best management practices (BMPs) and interim measures; (2) adopting a specific BMP for shadehouse grown fern; and (3) adopting an interim measure for citrus. Petitioners concede that their challenge to the proposed rule is based solely on Section 120.52(8)(e), Florida Statutes, in that the proposed rule is arbitrary and capricious. Prior to, and independent of, the Department's work on proposed rule 5E-1.023, the faculty of the University of Florida, Institute of Food and Agricultural Sciences (IFAS), had begun work on revising IFAS's citrus fertilization guidelines. This revision eventually became SP 169, Nutrition of Florida Citrus Trees (SP 169), and supersedes the Agricultural Experiment Station Bulletin 536 series A through D, Recommended Fertilizers and Nutritional Sprays for Citrus (Bulletin 536), which had provided guidelines for Florida citrus fertilization since 1954. SP 169 is the official position of IFAS on the subject of nutritional requirements for citrus in Florida. Sometime around August 1994, Department met with and requested IFAS to provide the Department with a interim measure for citrus fertilization which could be adopted by the Department. The Department reviewed the first draft of the proposed interim measure for citrus fertilization prepared by IFAS and concluded that it would not be acceptable to the citrus industry because it was too detailed. Thereafter, the first draft was revised by IFAS and now appears as: 6. Fertilizer Guidelines, SP 169, pages 21 through 25. While IFAS's interim measure contains many recommendations, the recommendation most relevant to this proceeding is the recommended range of the annual rate of N for groves four years old or older. The recommended rates are expressed in pounds of N per acre per year. For oranges a range of 120 - 200 pounds of N per acre per year is recommended. For grapefruit a range of 120 - 160 pounds of N per acre per year is recommended. For other varieties a range of 120 - 200 pounds per acre per year is recommended. SP 169 also provides the criteria, including, but not limited to, soil load, varieties, leaf and soil analysis, fertilizer placement and application frequency and timing for determining a rate within the recommended range and to exceed the upper level of the range. Using these criteria a range of 120 - 180 pounds of N per acre per year for grapefruit can be supported and range of 120 - 240 pounds of N per acre per year for oranges can be supported. SP 169 also recommends that all available sources of N, including, but not limited to, organic sources and foliar applications, be included in the calculation of the annual N rate. Also recommended is that while the annual N rate may be exceeded in any given calendar year, the average annual rate over three years should not exceed the guidelines. Subsequent to receiving the proposed citrus interim measure from IFAS, the Department held a series of meetings and public workshops wherein growers and representatives from the fertilizer industry and grower organizations were given an opportunity to be heard and to make suggestions. In an effort to make the interim measure more flexible so as to gain industry acceptance, the Department compromised on several of the citrus fertilization guidelines set out in SP 169. The comprises were: (a) not to include any N from foliar application in the calculation of the annual N rate; (b) to include only fifty percent of the total N content of the source from all organic sources in the calculation of the annual rate of N; and (c) increase the recommended range of the annual rate of N for grapefruit and oranges to 120 - 210 pounds per acre and 120 - 240 pounds per acre, respectively, without considering the criteria set out in SP 169 for determining a rate within the recommended range or to exceed the upper limits of the range. In deciding not to include any N from foliar application in the calculation of the annual rate of N, the Department considered: (a) the fact that N from foliar application would be quickly absorbed through the leaf and reduce the likelihood of any N leaching into the ground water; (b) that the cost of foliar application of N would prevent the indiscriminate use of foliar application of N; and (c) that foliar application would give the grower wishing to obtain maximum yield a source of N not included in the calculation of the annual rate. However, the Department did not consider the additional cost of the N to the grower who heretofore had used sources of N other than foliar application for obtaining maximum yield. In making the decision to include only 50 percent of the content of the source of N from all organic sources the Department took into consideration the public policy of encouraging the use of municipal sludge and other similar products, and the fact that on an average only fifty percent of the content of the source of N would be an available source of N. Although IFAS disagreed with the Department on not counting all the N in organic sources, IFAS did agree that since it was not known how much of the N in organic sources was immediately available, the figure of 50 percent of the content of the source was as good a figure as any. Increasing the range of the annual rate of N per acre from 120 - 160 pounds to 120 - 180 pounds for grapefruit and from 120 - 200 pounds to 120 - 240 pounds for oranges came about as a result of a meeting on April 20, 1995, at Florida Citrus Mutual. Apparently, the justification for the increase was due to the recommendations contained in the Criteria for selecting a rate within the recommended rate set out in SP 169, Fertilizer Guidelines which provides: Crop load. Nitrogen requirements vary as crop load changes. Replacement of N lost by crop removal is the largest requirement for N. Groves producing low to average crops do no require high fertilizer rates. Higher rates may be considered for very productive groves. Rates for oranges up to 240 lb per acre may be considered for groves producing over 700 boxes per acre. However, rates above 200 lb per acre should be used only if there is a demonstrated need based on leaf analysis, and if optimal fertilizer placement, timing, and irrigation scheduling are employed. For grapefruit producing over 800 boxes per acre, 180 lb N may be considered. The increase in the range of the annual rate per acre of N from 120 - 180 pounds to 120 - 210 pounds for grapefruit came about as result of Dr. Koo's concern over a potassium deficiency. Most fertilizers are formulated on a 1 to 1 ratio of N and potassium, and the application of only 180 pounds of potassium could result in a potassium deficiency. The Department did not consider if citrus trees could absorb N and potassium in a ratio other than a 1 to 1 which would have allowed the proper application of potassium without increasing the annual N rate. The following language appears in SP 169, Fertilizer Guidelines, 6.2 Bearing Trees: Rates of 0.4 lb N per box for oranges land lb N per box for grapefruit were recommended previously. With good manage- ment, oranges frequently exceed 600 boxes per acre and grapefruit production is commonly above 800 boxes per acre. Use of lb N per box in groves producing over 500 boxes per acre results in application of over 200 lb N per acre. The advantage of rates above 200 lb has not been demonstrated. Economic benefits are quest- ionable, and the potential for groundwater contamination increases. A significant yield response to rates above 200 lb N per acre appears unlikely, and other management practices should be first evaluated if grove performance at 200 lb N per acre is not satisfactory. Experts, both growers and researchers, testifying for Petitioners and previous IFAS Research Bulletins on citrus fertilization, disagree with the statements: (a) that the advantage of annual rates of N above 200 pounds per acre has not been demonstrated; (b) that economic benefits of annual rates of N above 200 pounds per acre are questionable; and (c) that a significant yield response to annual rates of N above 200 pounds per acre appears unlikely. This language also appears to be in conflict the language quoted above dealing with the criteria, "Crop load". Petitioners' experts and previous IFAS Research Bulletins disagree with the conclusion that there is a basis for a higher annual rate of N per acre for oranges over grapefruit. On November 14, 1995, the Department presented the citrus Interim Measure which recommended a range of 120 - 210 pounds N per acre annual rate for grapefruit and a range of 120 - 240 pounds N per acre annual rate for oranges to the Fertilizer Technical Council. After hearing testimony on the merits of the citrus Interim Measure, the Fertilizer Technical Council voted to recommend changing the citrus Interim Measure to provide that oranges and grapefruit be treated the same with a range of annual N rate per acre of 120 - 240 pounds for both. The Commissioner of Agriculture did not accept the recommendation from the Fertilizer Technical Council. In addition to the Fertilizer Technical Council, a large segment of the citrus industry, including, but not limited to, growers and grower organizations, expressed their approval of using the same range of annual rates of 120 - 240 pounds of N per acre for both oranges and grapefruit. However, the Department had already compromised by increasing the maximum annual rate of nitrogen per acre for grapefruit by 30 pounds above the maximum annual rate suggested by IFAS in SP 169, while leaving the maximum annual rate of nitrogen per acre for oranges at 240 pounds, the maximum rate suggested by IFAS in SP 169.
The Issue At issue is whether respondent's motion for summary recommended order should be granted.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered dismissing the administrative complaint filed in this matter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Pinellas County operates a water system which serves a population of approximately 400,000. This figure includes some 250,000 individual meter accounts and 150,000 wholesale customers, including the Pasco County Water Authority 1/ and the Cities of Tarpon Springs, Clearwater, Safety Harbor and Pinellas Park. At the time of the hearing, Pinellas County was conducting negotiations with the Cities of Oldsmar and Dunedin to supply them with water. Like other suppliers of water within the Southwest Florida Water Management District (SWFWMD, Pinellas County is required to obtain consumptive use permits (CUP) from SWFWMD. This petitioner currently operates two wellfields -- the Eldridge-Wilde Wellfield Containing 1,925 acres and the East Lake Road Wellfield Containing 5,861 acres. In addition, Pinellas County receives water supplies from the West Coast Regional Water Supply Authority (WCRWSA), which operates the Cypress Creek Wellfield Containing 4,895 acres and the Cross Bar Ranch Wellfield Containing 8,060 acres. On an average daily basis, the Pinellas County water system presently utilizes 45 million gallons of water per day (mgd), with a peak use of 65 mgd. Projections indicate that the estimated water demand for the Pinellas County water system will be an average of 54.3 mgd, and a peak use of 90.15 mgd by 1980. For the year 1982, the estimate is 60.06 mgd average and 98.71 mgd peak. For 1984, the estimate is 65.44 mgd average and 106.65 mgd peak. At the time of the hearing, the present permitted capacity available to Pinellas County was 73 mgd average and 100 mgd peak or maximum. Estimates of projected water demands for Pinellas County indicate a definite shortage of water during peak periods by the year 1984 and a cushion of only 1.29 million gallons during peak periods as early as 1982. Pinellas County has experienced water shortages in the recent past, resulting in emergency measures such as sprinkling bans during the daylight hours. Considering the possibilities of equipment breakdowns or extremely dry periods, a cushion of 1.29 mgd is not a sufficient surplus. The WCRWSA was formulated by an interlocal agreement under Chapter 373, Florida Statutes, and is authorized to acquire water and water rights, develop, store and transport water, and to provide, sell and deliver water for county or municipal purposes or uses. The members of the WCRWSA are Pasco County, the City of Tampa, Hillsborough County, the City of St. Petersburg and Pinellas County. As noted above, the WCRWSA operates two wellfields -- Cypress Creek and Cross Bar Ranch. Pinellas County actually owns the land at the Cross Bar Ranch. At the time of the hearing, the Cross Bar Ranch Wellfield was permitted for 15 mgd average and 20 mgd peak. In August of 1979, the WCRWSA and Pinellas County, as co-applicants, filed an application for a modification of their consumptive use permit at the Cross Bar Ranch Wellfield to authorize an annual average withdrawal of 30 mgd and a maximum withdrawal of 45 mgd. Under the rules of respondent SWFWMD, an application for an increased use is treated as a new application. Rule 16J- 2.04(5), Fla. Admin. Code. Pasco County moved to intervene in the petitioners' CUP application process concerning the Cross Bar Ranch Wellfield. Among the issues raised by Pasco County in their Petition to intervene was whether the proposed consumptive use would exceed the water crop of land owned, leased or otherwise controlled by the applicants. At the time of the evidentiary hearing in the present cause, SWFWMD had not yet held an administrative hearing on the application for a CUP modification for the Cross Bar Ranch Wellfield. The application was pending both at the time of the filing of the petitions with the Division and at the time that all parties rested at the conclusion of the evidentiary hearing. The petitions filed in the instant cause challenge the validity of SWFWMD'S Rule 16J-2.11(3), Florida Administrative Code. This rule is known as the water rule, and reads as follows: 16J-2.11 Conditions for a Consumptive Use Permit. (3) Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) Another subsection of Rule 16J-2.11 provides that the governing board of SWFWMD may grant an exception to the water crop rule. Subsection (5) of Rule 16J-2.11 provides that (5) The Board for good cause shown may grant exceptions to the provisions of paragraphs (2), (3), (4), and (10) of this rule when after consideration of all data presented, including economic information, it finds that it is consistent with the Public interest. The caveat of the water crop rule is that only 1,000 gallons per acre per day may be withdrawn under any permit. The Cross Bar Ranch consists of 8,060 acres. Under the challenged rule, only 8,060,000 gallons per day could be withdrawn. Therefore, the application pending before SWFWMD for a CUP for 30 mgd average and 45 mgd peak far exceeds the water crop rule. The existing permit also exceeds the limitations of the rule. The water crop concept had its genesis in a report on the amount of available water in a certain portion of the respondent's water management district. The rule is applied district-wide by SWFWMD. In spite of its seemingly mandatory language, the rule is not ultimately implemented or interpreted in a mandatory fashion by the respondent. Instead, it is applied as an initial or threshold level of inquiry, or "first cut," and, if the other criteria for a permit can be satisfied, SWFWMD will grant an exception under subsection (5) of Rule 16J-2.11. With one possible exception, the respondent has never denied a permit solely because the application exceeded the water crop concept. It would not be hydrologically sound to deny a CUP solely on the basis of the water crop rule. Consumptive use permits can be adequately regulated without such a rule. No other water management district in Florida has promulgated or requires compliance with a water crop rule. The water crop concept is hydrologically unsound and cannot be properly applied to any specific piece of property. A generalization of the amount of water which is available throughout the district (1,000 gallons per acre per day) cannot reasonably be applied in individual consumptive use proceedings. This is due to the fact that the amount of water which can be withdrawn from any specific parcel of lad is dependent upon the amount of rainfall the land receives, soil types, the water table, the existence of confining layers, vegetation types and other variable hydrological factors. These factors vary widely throughout the subject water management district. If the water crop rule were strictly applied by SWFWMD, the petitioners would be required to purchase or otherwise acquire an additional 80,000 acres of land to supply their customers with the water now permitted to be withdrawn. This would obviously result in excessive financial burdens to the petitioners and, ultimately, consumers. Without objection by the respondent or the intervenors, evidence was adduced by the petitioners regarding the action of the Florida Joint Administrative Procedures Committee in its review of Rule 16J-2.11(3) in 1976. The undersigned makes no finding of fact regarding this evidence inasmuch as it deemed irrelevant and immaterial to the ultimate determination in this cause. As noted above, the City of St. Petersburg is a member of the WCRWSA. Because of recent water shortages, St. Petersburg has loaned to Pinellas County apportion of its allotment from a wellfield operated by WCRSWA. It is projected that the City of St. Petersburg will need additional supplies of water between the years of 1983 and 1985. The remaining intervenors are all charged with the responsibility to obtain sufficient water supplies within the district of SWFWMD. They are subject to the consumptive use permitting rules of SWFWMD. Evidence was offered on the issue of whether the water crop rule was strictly applied to Pinellas County at its East Lake Road Wellfield, which comprises 5,861 acres. At present, the amount of water withdrawal permitted is less than the water crop for the amount of acreage of the wellfield. Though there was evidence that SWFWMD inquired as to the control or ownership of the land, the actual permit application was not introduced into evidence nor was there sufficient evidence adduced by petitioner to illustrate the reasons for a permit for an amount less than that which would be permitted under the challenged rule.
The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, SARASOTA GROWERS INCORPORATED (SARASOTA GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, in Sarasota County, Florida. W.R. Walden is president of SARASOTA GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agricultural products, holding License Number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. In early 1997, Respondent GULF BREEZE through its manager, David Joy, contacted SARASOTA GROWERS and ordered the delivery of certain agricultural products. By usual business practices, payment was demanded upon delivery. On February 10, 1997, SARASOTA GROWERS delivered agricultural products to GULF BREEZE. The invoiced value of the agricultural products delivered to GULF BREEZE was $2,255.00. On February 12, 1997, SARASOTA GROWERS delivered agricultural products valued at $302.50 to GULF BREEZE. On March 7, 1997, SARASOTA GROWERS delivered agricultural products valued at $18.00 to GULF BREEZE GULF BREEZE did not pay for the agricultural products at the time of delivery by SARASOTA GROWERS. At each of these deliveries, SARASOTA GROWERS was informed by an employee of GULF BREEZE that the manager David Joy, was not present, but that payment by check would be mailed. After the delivery of March 7, 1997, SARASOTA GROWERS ceased making deliveries to GULF BREEZE. After several demands for payment by SARASOTA GROWERS, GULF BREEZE remitted a partial payment of $1,000.00 for the agricultural products delivered by SARASOTA GROWERS. GULF BREEZE failed to properly make payment for agricultural products delivered by SARASOTA GROWERS and is indebted to SARASOTA GROWERS in the amount of $1,575.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner SARASOTA GROWERS INCORPORATED $1,575.50 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 W. R. Walden, President Sarasota Growers, Incorporated 1001 Sinclair Drive Sarasota, Florida 34240 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.
Findings Of Fact Facts admitted by all parties FDOT adopted Rule 14-26.0131 in August 1989. Since 1986, FDOT has had a policy of authorizing special permits for ocean-going sealed containerized cargo units as expressed in the policy statement effective March 13, 1986. FDOT recognizes that Florida's competitive position in world trade is important to the economy of the State of Florida as a whole. FDOT did not consider Florida's competitive position in world trade as a governing factor in determining to repeal Rule 14-26.0131. FDOT decided to repeal Rule 14-26.0131 because it determined that the rule was unconstitutional. FDOT decided that the rule was unconstitutional because it provided a benefit to transporters of ocean-going sealed containerized cargo units which benefit was not available to transporters of domestic containerized cargo units. The decision to settle the lawsuit brought by the Florida Trucking Association did not lead to repeal of the rule. Rather, the decision to repeal the rule led to the decision to settle the lawsuit. In determining that the rule was unconstitutional, the effect that repeal of the rule would have on Florida's competitive position in world trade was not a controlling consideration. FDOT recognized at the time it decided to repeal the rule that those competing in world trade would suffer increased cost by the repeal. FDOT decided to repeal the rule before it prepared the written economic impact statement. Based on the information in the Department's possession regarding the detrimental effects upon industry, FDOT still decided to repeal the rule. Other than review of the report referenced in the economic impact statement, FDOT did not analyze the economic impact repeal of the rule would have on transporters of ocean-going sealed containerized cargo units. FDOT did not estimate the benefit repeal of the rule would provide to transporters of nonocean-going sealed containerized cargo units. FDOT issued the following number of overweight permits in the years 1986 through 1991: Year Trips Blankets 1986 27,251 5,533 1987 26,814 4,937 1988 28,733 4,901 1989 27,613 2,745 1990 23,749 1,507 1991 27,326 1,158 15. Of the total overweight permits issued in the years 1986 through 1991, the following were for vehicles transporting oceangoing seal containerized cargo units: Year Trips Blankets 1986 0 159 1987 0 519 1988 229 484 1989 10,221 105 1990 8,119 1 1991 10,864 27 The FHWA authorizes states to permit vehicles weighing more than 80,000 pounds carrying loads which cannot be easily dismantled or divided. FHWA has advised the states that the determination of whether a load can be easily dismantled is one to be determined at the state level as expressed in the correspondence dated August 30, 1968, to Governor Riley of South Carolina. As stated in the August 30, 1986, memorandum, the FHWA has no difficulty in construing containerized cargo involved in international trade as nondivisible loads. Citrus is a major economic industry of Florida. Florida citrus packers compete for the European and Asian markets with other citrus producing countries and other fruit commodities. FDOT published an economic impact statement. FDOT complied with publication and hearing requirements. Facts established by evidence at hearing The FDOT policy which immediately preceded the subject rule was expressed as follows in a policy statement effective March 13, 1986: Sealed containerized cargo units will be considered as nondivisible loads and special permits will be issued to operate vehicles hauling such units on the state highway system of this state, subject to the following restrictions: Such containerized cargo units must be part of international trade and be moved on the highways due to importation from, or exportation to, another country. The operators of such units shall at all times have in their possession the international bills of lading to verify that such units are being operated pursuant to this policy. A special permit issued for the hauling of any containerized cargo units covers only transport with the unit's contents as originally loaded onto a vehicle, and becomes invalid once the original contents are added to, dismantled, or divided. The gross weight imposed on the highway by the wheels of any one axle of a vehicle operating under such special permit shall not exceed 25,000 pounds, and the total weight with load imposed upon the highway by all the axles of the vehicle shall not exceed 95,000 pounds. As of the effective date hereof, this policy will serve as the Department's position and practice until such time as appropriate guidelines are incorporated into rules promulgated under the Florida Administrative Code. The Department's 1986 policy statement was grounded in the Federal Highway Administrator's letter to the then-Governor of South Carolina, Richard W. Riley, which stated, inter alia, that ". . . based on the needs of international commerce and possible tax implications for bonded cargos, we [the FHWA] have no difficulty in construing containerized cargo involved in international trade as a nondivisible load" for purposes of authorizing such cargos as one of the exceptions to the 80,000 pound weight limit contained in 23 U.S.C. 127. The Department's 1986 policy statement was codified as Rule 14- 26.0131, Florida Administrative Code, effective August 2, 1989. The subject rule reads as follows, in pertinent part: This rule is being adopted to allow state regulations to conform to the permitted provisions of the memorandum of the Director, Motor Carrier Transportation, Federal Highway Administration (FHWA), dated December 30, 1985. Subject: "Vehicle Size and Weight". Ocean-going sealed containerized cargo units, to include such cargo units with wheels installed and such cargo units without wheels, will be considered as non-divisible loads (as defined in 23 U.S.C. 127) and may apply for permits exempting them from the State's overall gross vehicle weight limit of 80,000 pounds. Movements in which the sealed containerized cargo unit does not actually travel in international waters or the container is to be opened in any manner during movement between the origin and destination, other than for customs inspection, are not eligible for permits under this rule. Because of the very heavy nature of the load to be carried and the potential for increased damage to the highway from vehicles so loaded, no straight truck, as defined in Section 316.003(70), Florida Statutes, shall be eligible for a permit pursuant to this rule. Criteria for issuance of permit. The applicant must submit proof of the following: That the container for which the permit is sought, is in direct transit to or from an international seaport, for purposes of import or export of the container on an ocean-going vessel; That the container is part of international trade or trade to or from a U.S. jurisdiction outside the continental limits of the United States; That the container must be moved over roads on the State Highway System of the State of Florida, as defined in Chapter 334, Florida Statutes; and A statement swearing that the container for which permit is sought is the container to be directly exported or imported; that the contents of such container are as originally loaded; that the container has not been opened during movement between origin and destination; and that the original contents are not to be added to, dismantled, opened, or divided until they reach the identified final destination. Federal law places a weight limit of 80,000 pounds on all trucks traveling the highways within the state of Florida. Failure by the Department to enforce the law to the satisfaction of the Federal Highway Administration (FHWA) could result in the state's being declared ineligible for a portion of the federal transportation funds allocated to it. While federal and state law authorizes the Department to grant special permits to overweight trucks, it does not require or contemplate that the Department will as a matter of policy allow all sealed containerized cargo to exceed the statutorily-prescribed 80,000 pound weight limit. In December of 1989, the Florida Trucking Association and others filed a lawsuit in Federal District Court challenging the constitutionality of Rule 14-26.0131, Florida Administrative Code. The Department sought to have the lawsuit dismissed, but the Federal Magistrate denied the Department's motion to dismiss. Following the denial of the motion to dismiss, a Department staff attorney, Mr. Reynold Meyer, was asked to review and assess the Department's position in that lawsuit. Mr. Meyer summarized his view of the matter in a memorandum dated October 2, 1990, in which he stated, among other things: On December 8, 1989, the Florida Trucking Association filed the above-referenced law suit challenging the constitutionality of the Department's Containerized Cargo Rule. Thus, the Florida Trucking Association is not only directly attacking the Department's Containerized Cargo Rule but is also indirectly attacking the Federal Highway Administration's policy as stated by Mr. Barnhart. The complaint alleges the Department's Containerized Cargo Rule violates the constitution by (1) placing an undue burden upon interstate commerce; (2) discriminating against intrastate and interstate commerce; and (3) denying the plaintiffs equal protection of the law. If this case goes to trial, Judge Stafford will decide three legal issues. The first legal issue is whether the rule promotes safety upon Florida's highways and conserves their use. The second issue is whether the safety and conservation purposes of the rule outweigh the interference with interstate commerce. The third issue is whether the rule's distinction between international containerized cargoes and all other types of containerized cargoes is rationally related to a legitimate state interest. The first two issues should be decided in the Department's favor. The third issue, however, may not be decided in the Department's favor. Any unfavorable decision on the third issue will be the result of the Department's lack of a rational basis for distinguishing between international containerized cargo and all other types of containerized cargo. Because the rule, in essence, discriminates between international containerized cargo and all other types of containerized cargo the Department's chances of prevailing at trial are forty percent (40%) or less. The Department's General Counsel agreed with the opinion that there was a substantial risk that the rule would be found to be unconstitutional. The Department's General Counsel discussed the matter with the Assistant Secretary for Transportation Policy and with the Secretary of the Department. Ultimately, it was concluded by the Secretary, because of the substantial risk that the rule would be found to be unconstitutional, and because the rule appeared to give an unfair advantage to some shippers that was denied to others, that the rule should be repealed. In reaching this conclusion, the Secretary relied on the advice of counsel and on the recommendation of the Assistant Secretary for Transportation Policy. After deciding to repeal the subject rule, the Department negotiated a settlement of the Federal lawsuit challenging the validity of the rule. An essential aspect of that settlement is that the Department would take the necessary action to repeal the rule. As part of the required rule repeal process, the Department prepared and published a summary of the estimate of economic impact of the proposed rule repeal reading as follows: There will be the normal costs associated with processing a rule repeal under the Administrative Procedure Act. These costs include: Legal review and analysis, word processing typing support, publication of notice and rule text in the Florida Administrative Weekly (Currently 64 cents a line), staffing/coordinating costs, and scheduling or conducting a public hearing. There will be no increased operational costs. The repeal of the rule may increase the cost to some operators by reducing the cargo volume, thus potentially increasing the ultimate price to the consumer of those products. The Department has received a report of the effect the repeal of the rule will have upon the Florida Citrus Packing Industry. The Department has considered this report in its attempt to estimate the cost or benefit of the repeal of the rule. However, the Department does not adopt or reject the facts within the report. The Department does not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. The repeal of the rule promotes competition by equally protecting those carrying cargo units of international, interstate, or intrastate origin or destination. These economic impact statements were based upon material provided by the Department's State Permits Engineer, the Settlement Agreement, and discovery responses in the above mentioned case, the report of the Florida Citrus Packing Industry. The Department considered an economic report from the Florida Citrus Packing Industry, data furnished by the Department's State Permits Engineer, and discovery responses from the Florida Trucking Association in developing the economic impact statement in question. The report from the Florida Citrus Packing Industry was actually prepared by the Florida Department of Citrus. Prior to initiating rulemaking, the Department contacted Mr. Kinney, a representative of Florida Citrus Packers. During that contact, the Department became aware that the industry was preparing an analysis of the impact of the rule repeal on the citrus industry and requested a copy of the report from Mr. Kinney. The Department recognized and considered the fact that the rule repeal would cause some adverse impact to the Florida Citrus Industry but regarded the fact as noncontrolling. In essence, the Department's economic impact statement concluded that the rule repeal would increase the cost of transporting cargo for those who now rely on the rule but that the Department lacked sufficient data to determine the actual economic impact. In developing its economic impact statement, the Department was concerned about the impact on all industries that rely on the rule. The Department believed the entire Florida economic base must be considered in developing any economic impact statement, and concluded that it did not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. After the rule is repealed, Petitioners will not be prohibited from applying for overweight permits. Such permits will be afforded consideration on their individual merits. It is, nevertheless, to be expected that after the repeal of the rule the Petitioners will not be granted as many overweight permits as they have been able to obtain with the rule in effect. Repeal of Rule 14-26.0131 will result in a significant 1/ increase in the transportation costs for shipment of Florida citrus to international markets. As a result of those additional costs either the demand for the fruit and fruit products will be adversely affected if the costs are passed along to the buyers or the profitability of the transactions will be reduced if the sellers absorb the additional costs. The Petitioners regularly ship fresh Florida citrus fruit and frozen Florida citrus fruit products to international markets. They regularly transport such products over Florida highways in containerized loads that have a gross weight exceeding 80,000 pounds. Repeal of the subject rule will cause the Petitioners to incur increased transportation costs.
The Issue Whether a consumptive use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant Phillips Petroleum Company submitted application Number 7500103 for a consumptive use permit for an average daily withdrawal of 9,000,000 gallons of water a day to be withdrawn from the Florida Aquifer in DeSoto County, Florida. The application is for a new use and the withdrawal is for industrial use from four withdrawal points. The center of withdrawals will be located at Latitude 27 degrees, 14 minutes, 40 seconds north. Longitude 82 degrees, 2 minutes, 48 seconds west, in DeSoto County. Notice of the September 3, 1975 public hearing was published in a newspaper of general circulation, to wit: The Arcadian on August 14 and 21, 1975, pursuant to Section 373.146, Florida Statutes. Notice of the continuation of the hearing held at 10:30 a.m., December 11, 1974 were duly noticed. Sarasota County was granted leave to intervene as a party to the proceeding. Evidence was received and testimony was heard by all parties at the September 3, 1975 hearing and evidence was received and testimony was heard by she Applicant and Intervenor at the December 11, 1975 hearing, and although the attorneys for the Southwest Florida Water Management District took no further part in the December 11, 1975 hearing on the merits, depositions of the Southwest Florida Water Management District staff members, James Mann and Barbara Boatwright, were received. Phillips Petroleum Company owns approximately 15,200 acres of land in DeSoto County and Manatee County and proposes to commence a phosphate mining operation on that property using a total of 15 million gallons of water per day, 9,000,000 gallons per day (MGD) from DeSoto County and 6 million gallons per day (MGD) from Manatee County. This application for a permit is for the 9 million gallons of water to be withdrawn from an 8,700 acre parcel owned by the Applicant in DeSoto County, Florida. As such it presumptively seeks withdrawal and consumptive use of no more than the average annual water crop for this parcel. Pursuant to the water crop theory, the water crop for the 8,700 acres contro led by the Applicant in the Southwest Florida Water Management District is 8.7 million gallons of water per day. However, as shown by correspondence of a hydrologist from Southwest Florida Water Management District, a phosphate mining operation is only 90 percent consumptive and therefore the actual consumptive use is 7.8 million gallons per day and falls within the water crop theory assumption set forth in Rule 16J-2.11(3), F.A.C., infra. The statutory criteria for granting a consumptive use permit is found in Section 373.223, Florida Statutes, which states: "(1) To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: Is a reasonable-beneficial use as defined in 474.019(5); and Will not interfere with any presently existing use of water; and Is consistent with the public interest. (2) The governing board of the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land or outside the watershed from which it is taken if the governing board or department determines that such transport and use is consistent with the public interest." This statute has been supplemented by rules adopted by the Southwest Florida Water Management District and is found in Rule 16J-2.11, F.A.C.: "16J-2.11 Conditions for a Consumptive Use Permit. The intended consumptive use: Must be a reasonable, beneficial use. Must be consistent with the public interest. Will not interfere with any legal use of water existing at the time of the application. Issuance of a permit will be denied if the withdrawal of water: Will cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the Board. Will cause the level of the potentiometric surface to be lowered below the regulatory level established by the Board. Will cause the level of the surface of water to be lowered below the minimum level established by the Board. Will significantly induce salt water encroachment. Will cause the water table to be lowered so that the lake stages or vegetation will be adversely and significantly affected on lands other than those owned, leased or otherwise controlled by the applicant. Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased, or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be three hundred sixty-five thousand (365,000) gallons per year per acre.") The United States Geological Survey and the Florida Department of Environmental Relation have received data supplied to Southwest Florida Water Management District with the application for a consumptive use permit. Throughout the course of the hearing testimony was heard and evidence was received as to the "leakance value" of the parcel of land in question. "Leakance value" was defined as the moving of water from the surface down into the deeper aquifer. A geologist, Mr. Donald S. Kell, with the Department of Environmental Regulation, and who testified at the request of the Intervenor, Sarasota County, was of the opinion that insufficient data to determine leakance value in connection with the mining operation had been submitted and therefore further tests were needed. Mr. Jack Hickey of the United States Geological Survey was of the opinion that leakance value had not been obtained. The technical staff members of the Southwest Florida Water Management District were uncertain as to whether reliable leakance value had been obtained. It was the position of the Intervenor, Sarasota County, that due to the geological conditions of the proposed mining operation, this leakance value or surface recharge into the aquifer was insufficient and was not in conformity with Southwest Florida Water Management District's water crop theory assumption of 1,000 gallons per acre per day. Although evidence was presented on this point, it is the finding of this Hearing Officer that such evidence was insufficient to establish the basis of, any finding of fact or to rebut the assumption contained in the above referenced rule. The validity of this rule was not challenged and the presumption is that the rule is valid. The water used in the flotation process of applicants mining and benefication process would be recycled and reused in other areas of the phosphate operation. A letter of objection by Donald T. Yeats was examined and considered in this Order. The Applicant presented evidence that the construction of the facility would be in excess of $94 million expended over a period of 3 years, 61 percent of which would be spent in the region. 350 people would be employed at full production. Additional support jobs would employe from 200-400 people. Evidence was presented by the Applicant and was not rebutted by the Intervenor or by the Southwest Florida Water Management District as to each of the applicable conditions for a consumptive use permit in Chapter 16J-2.11, Rules of the Southwest Florida Water Management District, effectuating the provisions of Chapter 378, Florida Statutes.
Recommendation That the Southwest Florida Water Management District approve Phillips Petroleum Company's application for a consumptive use permit as requested, subject to the following terms and conditions: Prior to commencing withdrawals, Phillips Petroleum shall notify the District of said commencement; All production wells will be equipped with appropriate flow deters or other measuring devices; Phillips shall submit periodic reports of withdrawal to the District; and Phillips shall install appropriate observation wells or other monitoring facilities. DONE and ORDERED this 12th day of January, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jacob D. Varn, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler 2000 Exchange Bank Building Tampa, Florida Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida Richard E. Nelson, Esquire Richard L. Smith, Esquire Nelson, Payne, Hesse and Cyril 2070 Ringling Boulevard Sarasota, Florida
