403.121 Enforcement; procedure; remedies.—The department shall have the following judicial and administrative remedies available to it for violations of this chapter, as specified in s. 403.161(1), ss. 381.0065-381.0067, part I of chapter 386 for purposes of onsite sewage treatment and disposal systems, part III of chapter 489, or any rule promulgated thereunder.
(1) Judicial Remedies:
(a) The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by any violation.
(b) The department may institute a civil action in a court of competent jurisdiction to impose and to recover a civil penalty for each violation in an amount of not more than $15,000 per offense. However, the court may receive evidence in mitigation. Each day during any portion of which such violation occurs constitutes a separate offense.
(c) Except as provided in paragraph (2)(c), it is not a defense to, or ground for dismissal of, these judicial remedies for damages and civil penalties that the department has failed to exhaust its administrative remedies, has failed to serve a notice of violation, or has failed to hold an administrative hearing before the institution of a civil action.
(2) Administrative Remedies:
(a) The department may institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, or aquatic life, of the state caused by any violation. The department may order that the violator pay a specified sum as damages to the state. Judgment for the amount of damages determined by the department may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.
(b) If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action. Except for violations involving hazardous wastes, asbestos, or underground injection, the department shall proceed administratively in all cases in which the department seeks administrative penalties that do not exceed $50,000 per assessment as calculated in accordance with subsections (3)-(7). Pursuant to 42 U.S.C. s. 300g-2, the administrative penalty assessed pursuant to subsection (3), subsection (4), or subsection (5) against a public water system serving a population of more than 10,000 may not be less than $1,000 per day per violation. The department may not impose administrative penalties in excess of $50,000 in a notice of violation. The department may not have more than one notice of violation seeking administrative penalties pending against the same party at the same time unless the violations occurred at a different site or the violations were discovered by the department subsequent to the filing of a previous notice of violation.
(c) An administrative proceeding shall be instituted by the department’s serving of a written notice of violation upon the alleged violator by certified mail. If the department is unable to effect service by certified mail, the notice of violation may be hand delivered or personally served in accordance with chapter 48. The notice shall specify the law, rule, regulation, permit, certification, or order of the department alleged to be violated and the facts alleged to constitute a violation thereof. An order for corrective action, penalty assessment, or damages may be included with the notice. When the department is seeking to impose an administrative penalty for any violation by issuing a notice of violation, any corrective action needed to correct the violation or damages caused by the violation must be pursued in the notice of violation or they are waived. However, an order is not effective until after service and an administrative hearing, if requested within 20 days after service. Failure to request an administrative hearing within this time period constitutes a waiver thereof, unless the respondent files a written notice with the department within this time period opting out of the administrative process initiated by the department to impose administrative penalties. Any respondent choosing to opt out of the administrative process initiated by the department in an action that seeks the imposition of administrative penalties must file a written notice with the department within 20 days after service of the notice of violation opting out of the administrative process. A respondent’s decision to opt out of the administrative process does not preclude the department from initiating a state court action seeking injunctive relief, damages, and the judicial imposition of civil penalties.
(d) If a person timely files a petition challenging a notice of violation, that person will thereafter be referred to as the respondent. The hearing requested by the respondent shall be held within 180 days after the department has referred the initial petition to the Division of Administrative Hearings unless the parties agree to a later date. The department has the burden of proving with the preponderance of the evidence that the respondent is responsible for the violation. Administrative penalties should not be imposed unless the department satisfies that burden. Following the close of the hearing, the administrative law judge shall issue a final order on all matters, including the imposition of an administrative penalty. When the department seeks to enforce that portion of a final order imposing administrative penalties pursuant to s. 120.69, the respondent may not assert as a defense the inappropriateness of the administrative remedy. The department retains its final-order authority in all administrative actions that do not request the imposition of administrative penalties.
(e) After filing a petition requesting a formal hearing in response to a notice of violation in which the department imposes an administrative penalty, a respondent may request that a private mediator be appointed to mediate the dispute by contacting the Florida Conflict Resolution Consortium within 10 days after receipt of the initial order from the administrative law judge. The Florida Conflict Resolution Consortium shall pay all of the costs of the mediator and for up to 8 hours of the mediator’s time per case at $150 per hour. Upon notice from the respondent, the Florida Conflict Resolution Consortium shall provide to the respondent a panel of possible mediators from the area in which the hearing on the petition would be heard. The respondent shall select the mediator and notify the Florida Conflict Resolution Consortium of the selection within 15 days of receipt of the proposed panel of mediators. The Florida Conflict Resolution Consortium shall provide all of the administrative support for the mediation process. The mediation must be completed at least 15 days before the final hearing date set by the administrative law judge.
(f) In any administrative proceeding brought by the department, the prevailing party shall recover all costs as provided in ss. 57.041 and 57.071. The costs must be included in the final order. The respondent is the prevailing party when an order is entered awarding no penalties to the department and such order has not been reversed on appeal or the time for seeking judicial review has expired. The respondent is entitled to an award of attorney fees if the administrative law judge determines that the notice of violation issued by the department seeking the imposition of administrative penalties was not substantially justified as defined in s. 57.111(3)(e). An award of attorney fees as provided by this subsection may not exceed $15,000.
(g) This section does not prevent any other legal or administrative action in accordance with law and does not limit the department’s authority provided in ss. 403.131, 403.141, and this section to judicially pursue injunctive relief. When the department exercises its authority to judicially pursue injunctive relief, penalties in any amount up to the statutory maximum sought by the department must be pursued as part of the state court action and not by initiating a separate administrative proceeding. The department retains the authority to judicially pursue penalties in excess of $50,000 for violations not specifically included in the administrative penalty schedule, or for multiple or multiday violations alleged to exceed a total of $50,000. The department also retains the authority provided in ss. 403.131, 403.141, and this section to judicially pursue injunctive relief and damages, if a notice of violation seeking the imposition of administrative penalties has not been issued. The department has the authority to enter into a settlement, before or after initiating a notice of violation, and the settlement may include a penalty amount different from the administrative penalty schedule. Any case filed in state court because it is alleged to exceed a total of $50,000 in penalties may be settled in the court action for less than $50,000.
(h) Chapter 120 applies to any administrative action taken by the department or any delegated program pursuing administrative penalties in accordance with this section.
(3) Except for violations involving hazardous wastes, asbestos, or underground injection, administrative penalties must be calculated according to the following schedule:
(a) For a drinking water contamination violation, the department shall assess a penalty of $3,000 for a Maximum Contaminant Level (MCL) violation; plus $1,500 if the violation is for a primary inorganic, organic, or radiological Maximum Contaminant Level or it is a fecal coliform bacteria violation; plus $1,500 if the violation occurs at a community water system; and plus $1,500 if any Maximum Contaminant Level is exceeded by more than 100 percent. For failure to obtain a clearance letter before placing a drinking water system into service when the system would not have been eligible for clearance, the department shall assess a penalty of $4,500.
(b) For failure to obtain a required wastewater permit, other than a permit required for surface water discharge, or obtain an onsite sewage treatment and disposal system permit, or for a violation of s. 381.0065, or the creation of or maintenance of a nuisance related to an onsite sewage treatment and disposal system under part I of chapter 386, or for a violation of part III of chapter 489, or any rule properly promulgated thereunder, the department shall assess a penalty of $2,000. For a domestic or industrial wastewater violation, not involving a surface water or groundwater quality violation, the department shall assess a penalty of $4,000 for an unpermitted or unauthorized discharge or effluent-limitation exceedance or for failure to comply with s. 403.061(14) or s. 403.086(7) or rules adopted thereunder. For an unpermitted or unauthorized discharge or effluent-limitation exceedance that resulted in a surface water or groundwater quality violation, the department shall assess a penalty of $10,000. Each day the cause of an unauthorized discharge of domestic wastewater or sanitary nuisance is not addressed constitutes a separate offense.
(c) For a dredge and fill or stormwater violation, the department shall assess a penalty of $1,500 for unpermitted or unauthorized dredging or filling or unauthorized construction of a stormwater management system against the person or persons responsible for the illegal dredging or filling, or unauthorized construction of a stormwater management system plus $3,000 if the dredging or filling occurs in an aquatic preserve, an Outstanding Florida Water, a conservation easement, or a Class I or Class II surface water, plus $1,500 if the area dredged or filled is greater than one-quarter acre but less than or equal to one-half acre, and plus $1,500 if the area dredged or filled is greater than one-half acre but less than or equal to one acre. The administrative penalty schedule does not apply to a dredge and fill violation if the area dredged or filled exceeds one acre. The department retains the authority to seek the judicial imposition of civil penalties for all dredge and fill violations involving more than one acre. The department shall assess a penalty of $4,500 for the failure to complete required mitigation, failure to record a required conservation easement, or for a water quality violation resulting from dredging or filling activities, stormwater construction activities or failure of a stormwater treatment facility. For stormwater management systems serving less than 5 acres, the department shall assess a penalty of $3,000 for the failure to properly or timely construct a stormwater management system. In addition to the penalties authorized in this subsection, the department shall assess a penalty of $7,500 per violation against the contractor or agent of the owner or tenant that conducts unpermitted or unauthorized dredging or filling. For purposes of this paragraph, the preparation or signing of a permit application by a person currently licensed under chapter 471 to practice as a professional engineer does not make that person an agent of the owner or tenant.
(d) For mangrove trimming or alteration violations, the department shall assess a penalty of $7,500 per violation against the contractor or agent of the owner or tenant that conducts mangrove trimming or alteration without a permit as required by s. 403.9328. For purposes of this paragraph, the preparation or signing of a permit application by a person currently licensed under chapter 471 to practice as a professional engineer does not make that person an agent of the owner or tenant.
(e) For solid waste violations, the department shall assess a penalty of $3,000 for the unpermitted or unauthorized disposal or storage of solid waste; plus $1,000 if the solid waste is Class I or Class III (excluding yard trash) or if the solid waste is construction and demolition debris in excess of 20 cubic yards, plus $1,500 if the waste is disposed of or stored in any natural or artificial body of water or within 500 feet of a potable water well, plus $1,500 if the waste contains PCB at a concentration of 50 parts per million or greater; untreated biomedical waste; friable asbestos greater than 1 cubic meter which is not wetted, bagged, and covered; used oil greater than 25 gallons; or 10 or more lead acid batteries. The department shall assess a penalty of $4,500 for failure to properly maintain leachate control; unauthorized burning; failure to have a trained spotter on duty at the working face when accepting waste; or failure to provide access control for three consecutive inspections. The department shall assess a penalty of $3,000 for failure to construct or maintain a required stormwater management system.
(f) For an air emission violation, the department shall assess a penalty of $1,500 for an unpermitted or unauthorized air emission or an air-emission-permit exceedance, plus $4,500 if the emission was from a major source and the source was major for the pollutant in violation; plus $1,500 if the emission was more than 150 percent of the allowable level.
(g) For storage tank system and petroleum contamination violations, the department shall assess a penalty of $7,500 for failure to empty a damaged storage system as necessary to ensure that a release does not occur until repairs to the storage system are completed; when a release has occurred from that storage tank system; for failure to timely recover free product; or for failure to conduct remediation or monitoring activities until a no-further-action or site-rehabilitation completion order has been issued. The department shall assess a penalty of $4,500 for failure to timely upgrade a storage tank system. The department shall assess a penalty of $3,000 for failure to conduct or maintain required release detection; failure to timely investigate a suspected release from a storage system; depositing motor fuel into an unregistered storage tank system; failure to timely assess or remediate petroleum contamination; or failure to properly install a storage tank system. The department shall assess a penalty of $1,500 for failure to properly operate, maintain, or close a storage tank system.
(4) In an administrative proceeding, in addition to the penalties that may be assessed under subsection (3), the department shall assess administrative penalties according to the following schedule:
(a) For failure to satisfy financial responsibility requirements or for violation of s. 377.371(1), $7,500.
(b) For failure to install, maintain, or use a required pollution control system or device, $6,000.
(c) For failure to obtain a required permit before construction or modification, $4,500.
(d) For failure to conduct required monitoring or testing; failure to conduct required release detection; or failure to construct in compliance with a permit, $3,000.
(e) For failure to maintain required staff to respond to emergencies; failure to conduct required training; failure to prepare, maintain, or update required contingency plans; failure to adequately respond to emergencies to bring an emergency situation under control; or failure to submit required notification to the department, $1,500.
(f) Except as provided in subsection (2) with respect to public water systems serving a population of more than 10,000, for failure to prepare, submit, maintain, or use required reports or other required documentation, $750.
(5) Except as provided in subsection (2) with respect to public water systems serving a population of more than 10,000, for failure to comply with any other departmental regulatory statute or rule requirement not otherwise identified in this section, the department may assess a penalty of $1,000.
(6) For each additional day during which a violation occurs, the administrative penalties in subsections (3)-(5) may be assessed per day per violation.
(7) The history of noncompliance of the violator for any previous violation resulting in an executed consent order, but not including a consent order entered into without a finding of violation, or resulting in a final order or judgment after the effective date of this law involving the imposition of $3,000 or more in penalties shall be taken into consideration in the following manner:
(a) One previous such violation within 5 years before the filing of the notice of violation will result in a 25-percent per day increase in the scheduled administrative penalty.
(b) Two previous such violations within 5 years before the filing of the notice of violation will result in a 50-percent per day increase in the scheduled administrative penalty.
(c) Three or more previous such violations within 5 years before the filing of the notice of violation will result in a 100-percent per day increase in the scheduled administrative penalty.
(8) The direct economic benefit gained by the violator from the violation, where consideration of economic benefit is provided by Florida law or required by federal law as part of a federally delegated or approved program, must be added to the scheduled administrative penalty. The total administrative penalty, including any economic benefit added to the scheduled administrative penalty, may not exceed $15,000.
(9) The administrative penalties assessed for any particular violation may not exceed $10,000 against any one violator, unless the violator has a history of noncompliance, the economic benefit of the violation as described in subsection (8) exceeds $10,000, or there are multiday violations. The total administrative penalties may not exceed $50,000 per assessment for all violations attributable to a specific person in the notice of violation.
(10) The administrative law judge may receive evidence in mitigation. The penalties identified in subsections (3)-(5) may be reduced up to 50 percent by the administrative law judge for mitigating circumstances, including good faith efforts to comply before or after discovery of the violations by the department. Upon an affirmative finding that the violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by respondent’s due diligence, the administrative law judge may further reduce the penalty.
(11) Penalties collected pursuant to this section must be deposited into the Water Quality Assurance Trust Fund or other trust fund designated by statute and shall be used to fund the restoration of ecosystems, or polluted areas of the state, as defined by the department, to their condition before pollution occurred. The Florida Conflict Resolution Consortium may use a portion of the fund to administer the mediation process provided in paragraph (2)(e) and to contract with private mediators for administrative penalty cases.
(12) The purpose of the administrative penalty schedule and process is to provide a more predictable and efficient manner for individuals and businesses to resolve relatively minor environmental disputes. Subsections (3)-(7) may not be construed as limiting a state court in the assessment of damages. The administrative penalty schedule does not apply to the judicial imposition of civil penalties in state court as provided in this section.
...mber 24, 1973, then the entire bond in the amount of $150,000 shall stand forfeited." We agree with petitioner. Respondent's birth and each breath of life is derived from Chapter 403, Florida Statutes, F.S.A. Pertinent here are Sections 403.061(16), 403.121, 403.141, 403.161 and 403.161(2)....
...Its powers are derivative only, depending upon the statute by which it is created. Its powers are limited to those granted, either expressly or by necessary implication, by the statute of its creation. (St. Regis Paper Company v. State, Fla. App. (1st) 1970, 237 So.2d 797) Florida Statute 403.121, F.S.A....
...The latter statute clearly provides that the violator is "subject to the judicial imposition of a civil penalty for each offense in an amount of not more than $5,000 per offense." Further provision is made for the court to receive evidence in mitigation. Florida Statute 403.121(2), F.S.A....
...f polluting our environment." (at page 800 of 237 So.2d) The Supreme Court of Florida, in State, Air & W. Pol. Con. Com'n. v. St. Regis Paper Co., Sup.Ct.Fla. 1971, 257 So.2d 253, agreed with the District Court and further said: "Although Fla. Stat. § 403.121(1), (2) and (3), F.S.A....
...ended to require of petitioner a surety bond conditioned in accordance herewith. It is so ordered. RAWLS, C.J., and McCORD, J., concur. ON RE-HEARING GRANTED PER CURIAM. In our opinion in this cause, we made the following statement: "Florida Statute 403.121 F.S.A....
...trol Commission v. St. Regis Paper Company, Fla., 257 So.2d 253 was to the same effect. Respondent correctly points out that this case dealt with an interpretation of Chapter 403, Florida Statutes, as it existed prior to the enactment of the current Section 403.121(1)(c), Florida Statutes, which states as follows: "It shall not be a defense to, or ground for dismissal of, these judicial remedies for damages and civil penalties that the department has failed to exhaust its administrative remedies...
Cited 30 times | Published | Florida 1st District Court of Appeal | 1 ERC 1515
...Chapter 403, F.S.A., with the Commission reserving the right to later seek additional civil damages for tracing the source of the pollution and clearing the waters. St. Regis moved to dismiss the foregoing complaint upon the following grounds: 1. Failure to give written notice as required by § 403.121(1)....
...in its hands as an administrative agency. Having concluded that the Commission is vested with broad powers in dealing with air and water pollution problems, we then must come to grips with the critical question of: How is this power to be exercised? Section 403.121 is captioned "Enforcement; procedure" and provides in part: "(1) If the commission has reason to believe a violation of any provision of this act has occurred, it shall cause written notice to be served upon the alleged violator or violators....
...er that corrective action be taken within a reasonable time. No such order shall become effective except after reasonable notice * * *; except that injunctive relief may be sought as provided under § 403.131." (Emphasis supplied.) Subsection (2) of § 403.121 provides for hearing and corrective action if the Commission finds a violation has occurred....
...[1] With this observation we agree; however, in analyzing this section we fail to find a specific grant to the Commission to institute an independent judicial action seeking civil and criminal penalties prior to complying with the mandatory requirements of § 403.121....
...ral resources for a long period of time and then by construction of its own rules seek civil penalties in a sum that might well abate the industry. [3] Chapter 403 is construed to require mandatory compliance by the Commission with the provisions of § 403.121 prior to instituting a proceeding in a court of competent jurisdiction seeking civil or criminal penalties where a continuing violation is charged predicated upon the usual and normal daily operation of the alleged violator's business....
...ing out of unusual or abnormal activities on the part of the alleged violator. [4] Of course, the provision of the Chapter granting to the Commission the right to seek an injunction is available to the Commission for initial relief without regard to § 403.121 in those circumstances coming within the purview of § 403.131....
Cited 8 times | Published | Florida 1st District Court of Appeal
...Peterson has not exhausted the administrative remedy of appeal to the Commission. We agree and grant the motion to dismiss. Section 403.171, Florida Statutes (1975), enacted in 1967, provides that "Any party aggrieved by any action of the department may seek appropriate judicial review". Section 403.121(3), Florida Statutes (1975), enacted in 1967, provides that every order of the department is reviewable only in accordance with the Administrative Procedure Act....
...Section 120.53(2)(b), Florida Statutes (1975). The rules were published by the Secretary of State and are set forth in Chapter 17-1, Part III of the Florida Administrative Code. Section 120.55(1)(b), Florida Statutes (1975). The provisions of Sections 403.171 and 403.121(3), and 403.804(1) are inconsistent....
...State, 101 So.2d 833 (Fla. 1st DCA 1958). Otherwise, we must resolve the inconsistencies in favor of the last expression of the legislative will. Cable-Vision, Inc. v. Freeman, 324 So.2d 149 (Fla. 3d DCA 1976). The inconsistencies of Sections 403.171 and 403.121(3), and 403.804(1) can be reconciled by construing them to provide for judicial review of final agency action after review of the action by the Commission. This construction also gives effect to the last expression of the legislature. We so construe them. Having so construed Sections 403.171, 403.121(3) and 403.804(1), the review action by the Commission must be exhausted before judicial review can commence here....
Cited 6 times | Published | Florida 2nd District Court of Appeal
...position of a civil penalty for each offense in an amount of not more than $10,000 per offense... . Nothing herein shall give the department the right to bring an action on behalf of any private person. With respect to enforcement under Chapter 403, section 403.121 states, inter alia: (1) Judicial remedies: (a) The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by any violation....
...The opinion states that a public prosecutor, specifically a county solicitor (whose duties the opinion noted were to be assumed by the state attorney under the 1972 amendments to article V), had no authority to institute an action for civil penalties pursuant to section 403.121(1)(b), Florida Statutes (Supp....
...With respect to this latter point, the legislature has enacted Chapter 403 and clearly has intended for DER to be the state entity responsible for bringing civil actions for damages and penalties pursuant to section 403.141(1). See §§ 403.061(6); 403.121; 404.131....
...Florida Department of Pollution Control, 300 So.2d 75, 77 (Fla. 1st DCA 1974) (interpreting pre-1972 provisions). Moreover, section 403.141(1) must be read in pari materia with the rest of *1082 Part I of Chapter 403 and, in particular, with sections 403.121, 403.141, and 403.161. Section 403.121 clearly delineates the judicial and administrative procedures available to DER to civilly enforce violations of section 403.161(1) and also specifically empowers DER to seek and recover the aforementioned damages, penalties, costs, and expenses, State Department of Pollution and Control v. International Paper Co., 329 So.2d 5, 7 (Fla. 1976). Simply put, section 403.161 sets forth the violations; section 403.141 creates the civil liability in favor of the state; and section 403.121 empowers DER alone to sue for civil damages and penalties....
....36; 586.09(1), Fla. Stat. (1981). [17] This provision, unchanged since 1972, sets forth a judicial remedy (civil penalties) available to DER for section 403.161(1) violations. [18] As noted earlier in the text of the opinion and emphasized therein, section 403.121 specifically states in subsections (1)(a), (1)(b), and (2)(a) that "[t]he department may institute" the available actions....
Cited 5 times | Published | Florida 1st District Court of Appeal
...statute, in that it was served with a written notice of a warning which specified the provision of the statute and rule alleged to have been violated and the facts alleged to constitute a violation, in accordance with the procedure delineated under Section 403.121(2)(c), Florida Statutes (1985). Moreover, both section 403.121(2)(c) and Florida Administrative Code Rule 17-103.110(1)(b) provide that a person served with a notice of violation (NOV) shall be entitled to a section 120.57 administrative hearing within twenty days following service of notice; otherwise the person's right to an administrative hearing shall be deemed waived....
...d. at 346. In applying the Gadsden State Bank rule to the instant case, it is obvious that Phibro was made a party to the administrative proceeding by both statute and rule when the NOV was served on it. Having achieved status as a party pursuant to section 403.121(2)(c) and rule 17-103.110(1)(b), it is therefore immaterial whether its own interests were determined in the proceeding (the execution of the two consent orders), so long as the interests of a specific party or parties were there determined....
...the broad powers conferred to it under chapter 403, it may serve a warning notice on a person who may be suspected of causing pollution without implicating such person's substantial interests. As a consequence of its broad statutory powers, notably section 403.121, describing the judicial and administrative remedies available to DER to ensure abatement of polluting conditions, and section 403.141(2), providing that liability under chapter 403 is joint and several, the department apparently concludes that the warning notice which it served on Phibro is not the equivalent of the NOV referred to in either section 403.121(c) or rule 17-103.110(1)(a), in that its final order states that it "has never filed a Notice of Violation or a civil law suit against Phibro ......
...for the violations addressed in the Consent Orders." We find no authority for the department's ostensible contention that the warning served on Phibro is some type of free-form pleading which has no impact upon Phibro's substantial interests. The notice which was served generally tracked the language of section 403.121(c), specifying the statute and the regulation alleged to have been violated and the facts alleged to constitute a violation....
...would constitute a waiver of such right. Consequently, it cannot be said that Phibro waived a clear point of entry into an administrative proceeding. Nevertheless, the department does not rely upon the twenty-day waiver provision provided by either section 403.121(2)(c) or rule 17-103.110(1)(b), but contends only that Phibro lacked standing to seek an administrative hearing on the ground that its substantial interests were not affected by the consent orders....
Cited 3 times | Published | Florida 1st District Court of Appeal
...m directive that Falls Chase submit permit applications for placing compacted fill below that line, section 120.57 proceedings and a section 120.68 appeal were available to resolve any question of fact, policy, or law inhering in that directive. See section 403.121(2), Fla. Stat. (1979). [8] Questions concerning the Department's lawful powers could also have been raised in any civil action initiated by the Department to enforce its application of chapter 403 in Lake Lafayette. Section 403.121(1)....
...es or damages. Sections 403.131, .141, .121(1), Fla. Stat. (1979). The Department also might have instituted administrative proceedings to establish liability and damages for water pollution, subject to court enforcement, or to abate the violations. Section 403.121(2), Fla....
...A federal agency is not required to issue a declaratory order if asked, unless failure to do so is a clear abuse of discretion. Yale Broadcasting Co. v. Fed. Communications Comm'n, 478 F.2d 594, 602 (D.C. Cir.1973), cert. den., 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973). [7] Chapter 28-4, Fla. Admin. Code. [8] Section 403.121(2)(b), Fla....
...(1979): If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action. [9] To remedy chapter 403 violations section 403.121(1)(a) provides: The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by such violation....
Cited 2 times | Published | Supreme Court of Florida
...Appellant, Department of Pollution Control, contended the paper company's discharge of industrial effluent was the direct cause of the fish kill and immediately brought an administrative action seeking damages against appellee paper company pursuant to the provisions of Section 403.121(2), Florida Statutes (1969)....
...These findings and conclusions were adopted by the Pollution Control Board in its order dated April 17, 1973. The appellee paper company failed to appeal this administrative order to the District Court of Appeal in accordance with provisions of Sections 403.121(3) and 120.31, Florida Statutes (1973). On August 17, 1973, the appellant Department filed a complaint in the Circuit Court for Bay County in accordance with provisions of Section 403.121(2)(a), Florida Statutes (Supp. 1972), requesting the circuit court to enforce the Pollution Control Board's order against the appellee *7 paper company. The statutory authority by which the State proceeded to enforce its order, specifically Section 403.121(2)(a), Florida Statutes, was enacted by the Legislature in its 1972 session, effective July 1, 1972....
...(2009) (providing, in the event of administrative proceedings instituted by the Florida Fish and Wildlife Conservation Commission for violations of section 379.501, "the administrative law judge shall issue a final order on all matters including the imposition of an administrative penalty"); § 403.121(2)(d), Fla....
...to $1,000 because less than one-quarter of an acre was filled; in contrast, the $2,000 penalty for the “dredging” violation charged in Count I was appropriate because more than one-quarter of an acre, but less than a half acre, was dredged. See § 403.121(3)(c), Fla....
...in a judicial determination of the liability and damages.” The lower court held that even when proceeding under Section 403.141, Florida Statutes, F.S.A., the Department of Pollution Control must first conduct an administrative hearing pursuant to Section 403.121....
...trative hearing. It does not appear to us that the previous decisions require such interpretation. This court’s decision in St. Regis Paper Company v. State, supra, was rendered on August 18, 1970, and dealt with requirements set forth in Sections 403.121, 403.-131, and 403.161. In that case, we held that the Department could not elect to move directly against a violator in court under Section 403.161 and thereby circum *23 vent the procedural requirements of Section 403.121....
..., F.S.A. It is the opinion of this Court, however, that Section 403.-141 does provide additional liability and grants to the Department the power to “institute civil action in the appropriate court” notwithstanding any procedural requirements of Section 403.121, Florida Statutes, F.S.A....
...e before proceeding to court for judicial determination. In our earlier decision, we dealt with Section 403.161, and failed to find in that section a specific grant to the Department to institute an independent judicial action without complying with Section 403.121....
...However, the specific grant to institute judicial action found lacking under Section 403.161 by the earlier decisions can be found in Section 403.141, Florida Statutes, F.S.A. In the instant case, therefore, the clear language of Section 403.141 provides an alternative to Section 403.121 and allows the Department to elect between the administrative procedures of Section 403.-121, Florida Statutes, F.S.A., and a primary judicial determination under Section 403.141, Florida Statutes, F.S.A....
...position of a civil penalty for each offense in an amount of not more than $10,000 per offense .... Nothing herein shall give the department the right to bring an action on behalf of any private person. With respect to enforcement under Chapter 403, section 403.121 states, inter alia: (1) Judicial remedies: (a) The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by any violation....
...The opinion states that a public prosecutor, specifically a county solicitor (whose duties the opinion noted were to be assumed by the state attorney under the 1972 amendments to article V), had no authority to institute an action for civil penalties pursuant to section 403.121(l)(b), Florida Statutes (Supp.1972)....
...With respect to this latter point, the legislature has enacted Chapter 403 and clearly has intended for DER to be the state entity responsible for bringing civil actions for damages and penalties pursuant to section 403.141(1). See §§ 403.061(6); 403.121; 404.131....
...Florida Department of Pollution Control, 300 So.2d 75, 77 (Fla. 1st DCA 1974) (interpreting pre-1972 provisions). Moreover, section 403.141(1) must be read in pari materia with the rest of *1082 Part I of Chapter 403 and, in particular, with sections 403.121, 403.141, and 403.161. Section 403.121 clearly delineates the judicial and administrative procedures available to DER to civilly enforce violations of section 403.161(1) and also specifically empowers DER to seek and recover the aforementioned damages, penalties, costs, and expenses, State Department of Pollution and Control v. International Paper Co., 329 So.2d 5, 7 (Fla.1976). Simply put, section 403.161 sets forth the violations; section 403.141 creates the civil liability in favor of the state; and section 403.121 empowers DER alone to sue for civil damages and penalties....
...15; 585.36; 586.09(1), Fla.Stat. (1981). . This provision, unchanged since 1972, sets forth a judicial remedy (civil penalties) available to DER for section 403.161(1) violations. . As noted earlier in the text of the opinion and emphasized therein, section 403.121 specifically states in subsections (l)(a), (l)(b), and (2)(a) that "[t]he department may institute" the available actions....
Published | Supreme Court of Florida | 3 ERC 1908, 3 ERC (BNA) 1908, 1971 Fla. LEXIS 3089
...The District Court of Appeal, First District, has held through an opinion reported at 237 So.2d 797 (1st D.C.A.Fla.1970), that the Commission cannot file a complaint seeking assessment of penalties directly in a court of competent jurisdiction without first complying with Fla.Stat. § 403.121, F.S.A....
...The relief prayed for was the assessment of penalties for each daily offense as might be shown. St. Regis countered with a motion to dismiss based upon the theory that the Commission had failed to properly exhaust its administrative remedies, and that it had failed to demonstrate compliance with Fla. Stat. § 403.121 (1) and (2), F.S.A....
...Regis resorted to an interlocutory appeal to the District Court. The Commission contended on appeal that under Chapter 403, it had available to it two avenues of enforcement remedies: it could treat a violation as an administrative matter under Fla.Stat. § 403.121, F.S.A....
...or it could move directly against a violator in court under Fla.Stat. § 403.161, F.S.A. The District Court rejected the Commission’s arguments, and ordered the complaint dismissed upon”the following reasoning: “Chapter 403 is construed to require mandatory compliance by the Commission with the provisions of § 403.121 prior to instituting a proceeding in a court of competent jurisdiction seeking civil or criminal penalties where a continuing violation is charged predicated upon the usual and normal daily operation of the violator’s business....
...For example, a tanker discharging oil in public waters, *255 or the opening or breaking of a dike or dam to discharge sludge into streams, etc.] Of course, the provision of the Chapter granting to the Commission the right to seek an injunction is available to the Commission for initial relief without regard to § 403.121 in those circumstances coming within the purview of § 403.131....
...§ 403.161(1) provides that it is unlawful to contaminate the waters of this State in violation of rules fixing standards of water quality. If the Commission has reason to believe that a violation has occurred, it is required to serve the alleged violator with written notice under Fla.Stat. § 403.121, F.S.A....
...If the notice includes a Commission order requiring corrective action, the order is not effective until after the recipient has been given reasonable notice, has been served with the order, and a hearing has been held, if requested. These requirements, as well as those contained in Fla.Stat. § 403.121(2) and (3), F.S.A., must be satisfied unless injunctive relief is sought where applicable under Fla.Stat. § 403.131, F.S.A. Although Fla.Stat. § 403.121(1), (2) and (3), F.S.A....
...ion” and violations arising out of “unusual or abnormal activities.” We find no basis for an inference of this nature in Chapter 403. All violations are subject to action by the Commission under the appropriate procedures set out in Fla. Stat. § 403.121 , F.S.A., unless an order has been violated or an emergency arises, in which case the injunctive procedures of Fla.Stat....
...The statutes and rules give the Department a variety of options to pursue when there has been a polluting discharge or a violation of the responsible party's obligations in connection with such contamination. Among other options, the Department may choose to pursue an administrative remedy as it did in the present case, see section 403.121(2), Florida Statutes, or may file a civil action to enforce compliance, section 403.121(1)(b), or may itself arrange for the removal of the pollutant....
...rsue recovery of those expenses and costs "unless it finds the amount involved too small or the likelihood of recovery too uncertain." That provision has no applicability in this instance, where the Department pursued the administrative remedy under section 403.121(2)....
...The appellant suggests that the present case might be held in abeyance until those lawsuits are resolved. However, the appellant's responsibilities are not dependent on the availability of insurance, and the proceeding in the present case was properly brought against the appellant in accordance with section 403.121(2)....
...The Florida Department of Environmental Protection has appealed a Final Order of the Division of Administrative Hearings, which reduced penalties assessed against Holmes Dirt Service, Inc. and William J. Holmes by more than fifty percent of the statutory schedule. We affirm. Section 403.121(10), Florida Statutes (2002), allows an ALJ to reduce up to fifty percent for mitigating circumstances and upon an affirmative finding that the “violation was caused by circumstances beyond the reasonable control of the respondent a...
...Furthermore, the statutory ■ scheme of Chapter 403 does not allow an owner to be excused from compliance based upon good faith efforts to remedy violations; such mitigation is simply applicable as a partial defense to the assessment of monetary damages. § 403.121(l)(b), Fla.Stat....
...The legislature has afforded DER the option of bringing either administrative or judicial proceedings against an alleged polluter to enforce compliance with water treatment standards and recover damages or penalties for damage to the environment. §§ 403.121 and 403.131, Fla.Stat.; § 403.121(l)(c), Fla.Stat....
...istrative remedies, has failed to serve a notice of violation, or has failed to hold an administrative hearing prior to the institution of a civil action”); § 403.131, Fla.Stat. (“All the judicial and administrative remedies in this section and § 403.121 are independent and cumulative except that the judicial and administrative remedies to recover damages are alternative and mutually exclusive.”) In this case, DER sought to end the pollution by arriving at a settlement with the owner without commencing administrative proceedings....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
