Title: Opinion File 76-187 (6 pgs)
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 Material Information
Title: Opinion File 76-187 (6 pgs)
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 76-187 (6 pgs)
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 34
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003481
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
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J 2 y 2, 1976 Lv 0c.
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RE Essential Elememts of a CUP Hearing Order


Q STION:

I it necessary that the Governing Board of SWFWMD make
F dings of Fact, and Conclusions of Law, before issuing
a Order or granting a CUP permit? Yes.

I so, how complete must they be? Sufficient to point the
pa hway to follow in reviewing whether facts justify order.

D ;CUSSION:

T:ii necessity for basic findings to be made by a board
sth as SWFWMD exercising powers as contemplated by the
Aiainistrative Procedures Act does not comtemplate that
Stit board, having the attributes of a "fact finder" is
r uired to outline step by step the evidentiary fact
1 lding to the ultimate conclusion, but it does mean that
fi dings of fact on essential issues must be such as to
justify the entry of the final order. Such findings are
r quired to go no further than to point the pathway which
t Appellate Court may follow in reviewing the essential
f :ts on the question of whether the facts justify the
c: clusion reached by the Order. Polar Ice Cream and
C qamery Company v. Andrews, 150 So. 2d 504.

I order to assure due process and equal protection of the
lAws, every final order entered by an administrative
agency in the exercise of its quasi-judicial functions must
Stain specific findings of fact upon which its ultimate
nation is taken. Gentry v. Department of Professional and
C cupational Regulations, State Board of Medical Examiners,
2 3 So. 2d 386. Generalized statements to the effect that
testimony and evidence revealed some fact, falls far short
c 'adequate findings of fact" contemplated by statutory
Sovisions. Edwards v. Division of Beverage and Board of
Elsiness Regulations, 278 So. 2d 659.

le necessity for a finding to sustain administrative action
EIjudicatory or quasi-judicial in character does not rest
Volly upon a statutory requirement of a finding but may











e ist even in the absence of specific legislative requirement.
E press findings are necessary so that it may be known upon
j st what the action of the administrative agency is based.
T is is necessary to protect and assure the parties against
creless and arbitrary action and to enable the courts to
perform their function of review, particularly to determine
wether the administrative agency has kept within its
jurisdiction and decided the case upon the evidence and
tle law, and to give the reviewing court the assistance of
ar expert judgment on the matters entrusted to the agency
for initial determination. 2 Am Jur 2d, Administrative
aws 447.

A mere recital of essential findings is not enough. The
findings must be supported by evidence, and an administra-
t:ve order quasi-judicial in character is void if the facts
fund do not, as a matter of law, support the order made.

Ne Florida Courts, in Gentry v. Department of Professional
ad Occupational Regulations, State Board of Medical
Examiners, 283 So. 2d 386, at 387 state:

"It has been repeatedly held by the Courts of
this state that in order to assure due process
and equal protection of the laws, every final
order entered by an administrative agency in the
exercise of its quasi-judicial functions must
contain specific findings of fact upon which its
ultimate action is taken. An administrative order
which fails to contain such findings is ineffectual
as a predicate for the order sought to be enforced."

Tie Florida Supreme Court, in reversing a public utilities
commission order in 1961 stated that the commission did not
comply with the basic legal requirements in rendering its
oider. The order, after reciting several basic factors stated
after due consideration of the testimony, exhibits introduced
t the hearing and the various amendments, the commission
Snds the public convenience and necessity demand that this
application be granted as modified in the ordering paragraph
low." The court stated:

"It is crystal clear from the face of the
commissioner's order that no findings of fact are
contained therein upon which the commission
predicated its ultimate conclusion 'that public
convenience and necessity demand that this application
be granted as modified in the ordering paragraph
below.'" Central Truck Lines, Inc. v. King, 146 So 2d
' 370.











I is also essential that the board make a determination
b sed upon the evidence submitted and, in the exercise
o a judicial or quasi-judicial function, cannot act on
t iir own information. "It is improper for an .
a ency to base its decision or findings upon facts
g hered from its own records without introducing the
r words into evidence." Thorn v. Florida Real Estate
C mission, 146 So. 2d 907. That court goes on to state
t at administrativee bodies are not exempt from the
c Jstitutional requirement that procedural due process
b accorded those persons appearing before them."

W re the matter has been referred to a hearing officer
te board may adopt, ratify or confirm the findings of
f t expressed in the hearing officer's report and
recommendations but such adoption must be done with
s ecificity even though it may properly be done by
r ference without setting forth the full body of the
r port and recommendations in the board's order.



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SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT


IN RE: _
Consumptive Use Permit
Application No. ) ORDER NO.
In County,
Florida. )



FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND ORDER


This matter came on to be hear by the Governing

Be rd of Southwest Florida Water Management District at a

p. lic hearing on 19 Said

p llic hearing, being duly and properly noticed, was conducted

at the offices of the Southwest Florida Water Management

Di trict, 5060 U.S. 41 South, Brooksville, Florida, and all

pa ties hereto were present or given the opportunity to be

pr sent, and, together with the general public, were given an

op ortunity to present testimony and evidence. Based upon

th evidence and testimony presented the Board renders the

following:


FINDINGS OF FACT

1. presently owns

ap roximately acres of land in County

a: proposes to on this property.

Pu suant to Chapter 373, Florida Statutes, and Chapter 16J,

Fl rida Administrative Code, has

ma e application (Application No. ) to the Southwest

Florida Water Management District for a consumptive use permit

t: authorize the withdrawal of gallons of water per



2. The proposed gallons per day

( ) is for use

3. The proposed use is a reasonable use of the water

d is an economic and efficient use of the water in light of


I I























irdc


at


4 I 1 _


sting conditions, circumstances and technology.

4. The proposed withdrawal will not cause the level

the potentiometric surface to be lowered below any regula-

y level established by the Southwest Florida Water Management

trict.

5. The proposed withdrawal will not significantly

uce salt water intrusion.

6. The proposed withdrawal will not cause the water

le to be lowered so that the lake stages or vegetation

1 be adversely and significantly affected on lands other

in those owned, leased or otherwise legally controlled by

applicant.

7. The proposed withdrawal will not cause the level

the potentiometric surface under lands not owned, leased

otherwise controlled by the applicant to be lowered more

Ln five feet.

8. The proposed withdrawal will not cause the level

the water table under lands not owned, leased or otherwise

strolled by the applicant to be lowered more than three feet.

9. The proposed withdrawal will not cause the

:entiometric surface to be lowered below sea level.

10. The proposed withdrawal will not adversely

Eect any of the adjacent property owners.

11. The proposed withdrawal of gallons

water per day from acres of land owned,

based or otherwise controlled by applicant is at the rate of

gallons per year per acre which is

an the average water crop throughout the District.

L. -There are insufficient monitoring facilities in

e vicinity of applicant's lands to give early indication of

y changes in the conditions of the water resources in the area.

CONCLUSIONS OF LAW

1. The applicant has established that the intended






I t






ccsumptive use:

a. is a reasonable, beneficial use;

b. is consistent with the public interest;

and

c. will not interfere with any legal use

of water existing at the time of the

application.

2. The intended consumptive use is in compliance

w ;h the requirements of Chapter 373, Florida Statutes, and

C ipter 16J, Florida Administrative Code.

Wherefore, upon consideration, it is

ORDERED

1. That the Executive Director, or the duly delegated

st ff of the Southwest Florida Water Management District is

a thorized and directed to issue a consumptive use permit

t in substantially the form

ard subject to the terms and conditions set forth in Exhibit 1

a tached hereto.

DONE AND ORDERED this day of



SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT




Derrill S. McAteer, Chairman

SAL


iomas M. Van Der Veer, Secretary




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