Florida/Georgia Personal Injury & Workers Compensation

...Pepper's Steel and the Owner Defendants have caused pollution by the uncontrolled release of transformer oil and PCB's onto their property and into the groundwater flowing beneath it. This pollution has harmed or injured human health or welfare, animal and plant life, and property. In accordance with Section 403.141, Florida Statutes, Pepper's Steel and the Owner Defendants are therefore liable for the judicial imposition of a civil penalty of not more than $10,000 per day for each day of violation of Department rules....

...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)....

...on of which such violation occurs constitutes a separate offense. It is further provided that whoever commits a violation specified in subsection (1) of F.S. 403.161 is liable to the State for any damage caused and for civil penalties as provided in Section 403.141....

...§ 253.04 (duty of Board of Trustees to protect state lands); F.S.A. § 253.77 (permission of Board of Trustees required in order to excavate land in which title has been vested in Board of Trustees); F.S.A. § 403.161(1)(b) (failure to obtain required permit creates civil liability under F.S.A. § 403.141)....

...individual state attorney. Specifically, appellant James A. Gardner, the State Attorney for the Twelfth Judicial Circuit, seeks review of an order dismissing his independently initiated [1] complaint for damages and civil penalties filed pursuant to section 403.141(1), Florida Statutes (1981), and alternative petition for enforcement of agency action filed pursuant to section 120.69(1)(a), Florida Statutes (1981) (complaint/petition)....

...ecause we hold neither the state constitution, nor any statute, nor any case law gives a state attorney independent authority to commence, in his appropriate judicial circuit and on behalf of the state, a civil action for damages and penalties under section 403.141(1) and/or institute an administrative action to enforce DER's related rules and regulations under section 120.69(1)(a)....

...In that order, the court specifically ruled: (1) section 27.02 is merely enabling legislation for article V, section 17 of the Florida Constitution and simply "authorizes a state attorney to bring criminal and civil actions, but does not give special authority to bring an action [pursuant to section 403.141(1)]," and (2) section 120.69(1)(a) does not authorize a state attorney to bring a petition for enforcement of agency action because a state attorney is not included within the narrow definition of "agency" as set forth in section 120.52(1)(b)....

...issues which merit our discussion: (1) whether a state attorney has independent authority under section 27.02 (or any other statute) to institute in his judicial circuit and on behalf of the state a civil action for damages and penalties pursuant to section 403.141(1) for alleged violations of section 403.161(1) occurring in his circuit, and (2) whether a state attorney has independent authority under section 120.69(1)(a) to similarly institute a petition for enforcement to ensure compliance of...

...by DER with respect to Chapter 403 which allegedly are not being enforced by the department itself. Our examination of the applicable constitutional provisions, statutes, and case law compels us to answer both of the above questions in the negative. SECTION 403.141(1) CIVIL ACTION FOR DAMAGES AND PENALTIES The Relevant Statutory Provisions Chapter 403, and in particular Part I (sections 403.011 through 403.415(3)), is one of the legislature's comprehensive endeavors, consistent with the mandate...

...r issued by the department pursuant to its lawful authority. Subsection (2) of section 403.161 states that "[w]hoever commits a violation specified in subsection (1) is liable to the state for any damage caused and for civil penalties as provided in s. 403.141." Subsection (1) of section 403.141, which is the alleged basis of appellant's standing, provides in relevant portion: (1) Whoever commits a violation specified in s....

...Accordingly, we must analyze appellant's assertions in light of the relevant statutory provisions. Discussion Appellant essentially argues that section 27.02 when read in conjunction with article V, section 17 [13] grants him the authority to independently initiate a section 403.141(1) civil action on behalf of the state....

...d in that chapter. § 403.191; State ex rel. Shevin at 48, n. 8. Therefore, on the basis of our foregoing analysis, we hold the constitution requires *1081 that a specific general law be enacted to enable a state attorney to independently initiate a section 403.141(1) civil suit on behalf of the state....

...ceed on the complaint that was filed in this case. We first note, after scrutinizing its numerous sections, that no provision of Chapter 403 makes any reference whatsoever to a state attorney much less expressly granting him the power to instigate a section 403.141(1) civil suit....

...In fact, section 403.231, Florida Statutes (1981), specifically states that "The Department of Legal Affairs shall represent the state and its agencies as legal advisor in carrying out the provisions of this act." This lends further support to GDC's contention that appellant lacks standing to bring the section 403.141(1) suit....

...the abatement of air and water pollution. 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)....

...[18] We do, however, make the observation that a state attorney is not powerless to play a role in protecting the environment since the legislature has specifically empowered him to criminally prosecute section 403.161(1) violators. § 403.161(3). [19] Thus, it seems clear from a plain and ordinary construction of section 403.141(1) that this particular provision merely creates the civil cause of action in favor of the state and subjects a section 403.161(1) violator to liability in favor of the state for damages, penalties, costs and expenses. Cf. Gardinier, Inc. v. 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....

...lly 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. Accordingly, as we interpret the powers of a state attorney with respect to Chapter 403, it is clear to us that he indeed lacks standing to bring a section 403.141(1) civil action against an alleged polluter such as GDC....

...It only makes sense that a statewide agency which is specifically chartered by the legislature as the state's chief pollution control agency, as opposed to a localized state attorney whose primary responsibility is the enforcement of criminal laws, has the sole authority to institute civil actions pursuant to section 403.141(1)....

...That the legislature has chosen DER instead of the various state attorneys to civilly enforce provisions of Chapter 403 is a valid exercise of the legislature's inherent powers. Absent a clear indication by the legislature through a specific general law that a state attorney can independently bring a section 403.141(1) civil action, we resist the invitation to legislate and thus will not grant that authority....

...located.") (Emphasis supplied). Therefore, we hold only DER can sue under section 120.69(1)(a). [29] CONCLUSION Accordingly, we agree with the trial court's ultimate rulings and hold that a state attorney has no standing to independently initiate a section 403.141(1) civil action for damages and penalties against an alleged violator of Chapter 403, and a state attorney has no standing under section 120.69(1)(a) to file a petition for enforcement of the rules and regulations promulgated by DER in relation to Chapter 403....

...(Citation omitted). 563 N.Y.S.2d 736, 565 N.E.2d at 487. When the Florida Legislature has intended to permit a penalty to be assessed on a daily basis, or to define each day of continuing conduct as a separate violation, it has expressly so provided. See, e.g., section 403.141(1), Florida Statutes (1997) ("Whoever commits a violation specified in s....

...n 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 ru...

...DER's remedies may be barred, limited or not affected by its settlements. Those matters are to be determined in a subsequent proceeding. In my judgment this appeal should be dismissed as moot. NOTES [1] § 120.57, Fla. Stat. (1985). [2] This warning was apparently issued in compliance with Section 403.141(2), Florida Statutes (1985), providing that "[w]henever two or more persons pollute the ......

...n compliance with the regulations. The Stipulation merely provides for a reduced penalty for St. Joe if a force majeure occurred. Were it not for the Stipulation, St. Joe could not have operated without suffering full penalty for noncompliance under § 403.141, Florida Statutes, in an amount up to $10,000 per day....

...On April 21, 1986, a formal administrative hearing was held, and on June 4, 1986, the hearing officer entered a recommended order wherein he concluded, in part: (1) that the evidence affirmatively proved that the gasoline was not released into the environment during Sunshine's ownership of the property; (2) that § 403.141(2) (providing that if damage attributable to two or more polluters is divisible, each polluter should be held liable only for the damage he caused) and § 376.308(4) (providing a "third party polluter" defense in action to force cleanup of...

...e his findings of fact. In its final order, DER approved and adopted all of the findings of fact set forth in the recommended order, but rejected certain of the hearing officer's conclusions of law. Specifically, DER ruled (1) that the provisions of § 403.141(2) providing for divisibility of liability wherein environmental damage is divisible apply only to liability for damages, and not to liability for cleanup costs; (2) that the third party defense established by § 376.308(4) did not apply t...

...of pollutants into or upon any waters of the state or lands in violation of any departmental standard. Section 376.311(2), Florida Statutes (1985), moreover, states that the penalties for a discharge shall include those provided in chapter 403, and Section 403.141(2), Florida Statutes (1985), specifically declares that if two or more persons pollute the waters of the state in violation of the chapter, each violator shall be jointly and severally liable for such damage and for the reasonable cos...

...[8] On September 11, 1979, appellees filed a complaint in circuit court for declaratory and injunctive relief. DER answered and *791 filed a counterclaim against appellees Sunshine and Elba in the nature of a civil action for the entry and enforcement of a permanent injunction and fine pursuant to Sections 403.131(1) and 403.141(1), Florida Statutes, for violations of Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code....

...s for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by such violation. The Department also may seek injunctive relief in a circuit court, under section 403.131, Fla. Stat., and fines under section 403.141, Fla....

...More specifically, the Secretary found appellants George A. and Ann F. Belleau, Crown Laundry & Dry Cleaners, Inc., and Crown Management Services, Inc., jointly and severally liable for violations of section 403.161(1)(a) and (b), Florida Statutes (1985), and for investigative costs under section 403.141(1), Florida Statutes (1985)....

...February 26, 1976. *6 Robert L. Shevin, Atty. Gen., and James R. Brindell, Asst. Atty. Gen., for appellant. Lynn C. Higby and Richard Smoak, Isler, Highby & Brown, Panama City, for appellee. OVERTON, Justice. This is an appeal from a circuit court decision holding Section 403.141(3), Florida Statutes (1973), unconstitutional....

...He determined the sum of $12,009.20 had been established by the Department as the value of the fish kill. This sum was computed by reliance upon a table of values for individual species of fish established by Chapter 17-11 of the Florida Administrative Code, adopted pursuant to the authority of Section 403.141(3), Florida Statutes (1973)....

...[2] This statute did not become effective until one year after the fish kill, but it was in effect on the date of the administrative hearing on January 26, 1973. Prior to the adoption of this statute, the Department of Pollution Control could seek judicial enforcement of its order only in accordance with Section 403.141, Florida Statutes (1969)....

...He dismissed the action for failure to state a cause of action with leave to the Department to amend its complaint for a de novo judicial determination of liability and damages for the claimed fish kill. The trial court further granted the appellee paper company a partial summary judgment, holding unconstitutional Section 403.141 (3), Florida Statutes (1973), stating: "[The statute] is vague in that it permits purported compensatory damages to be assessed by `estimate' and that the table of values for individual categories of fish established pursuant to said...

...." We have two issues to determine in this cause: First, the validity of judicial enforcement under a statutory provision adopted subsequent to the subject fish kill; and, second, the constitutionality of an asserted conclusive evidentiary table of fish values promulgated by the Department pursuant to Section 403.141(3), Florida Statutes (1973)....

...Concerning the issue of judicial enforcement of the Department's order, we said in State v. St. Regis Paper Company, 257 So.2d 253, 255 (Fla. 1971), in applying the law applicable in June of 1971, that: "[The Department] is ... free to assess damages and costs under Fla. Stat. § 403.141(1), F.S.A....

...Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521, 524 (Fla. 1973); McKibben v. Mallory, 293 So.2d 48, 51 (Fla. 1974). The second issue concerns the constitutionality of the table of fish values promulgated by the Department as Chapter 17-11 pursuant to Section 403.141(3), Florida Statutes (1973)....

...It was the Legislature's intent in the adoption of Chapter 403 to protect and maintain the waters of this state and to provide a realistic means to enforce that purpose. Our construction carries out that purpose without violating constitutional due process of law. We hold Section 403.141(3), Florida Statutes (1973), constitutional in accordance with our construction herein. That part of the judgment below dismissing the complaint with leave to amend is affirmed. The partial summary judgment holding Section 403.141(3), Florida Statutes (1973), unconstitutional is reversed....

...Nothing herein shall prohibit the department from proceeding forthwith to obtain a judicial determination of the liability and damages. No finding, written report or recommendation of the department made pursuant to this section shall be admissible in evidence in any action." [4] Section 403.141(3), Florida Statutes (1973) is as follows: "In assessing damages for fish killed, the value of the fish is to be determined in accordance with a table of values for individual categories of fish which shall be promulgated by the department....

SPECTOR, Chief Judge. Appellants seek reversal of an order dismissing the complaint in an action filed against appellee seeking compensation for damages to the St. Johns River caused by oil spillage, which action was brought pursuant to Section 403.141, Florida Statutes, F.S.A. The central issue posed by this appeal is whether Section 403.141, Florida Statutes, 1971, F.S.A., authorizes the Department of Pollution Control to institute forthwith and without prior administrative proceeding a civil action to recover damages caused by an unlawful and negligent discharge of contaminants into the waters of the State. Section 403.141, Florida Statutes, F.S.A., provides in material part as follows: “(1) Whoever causes an unlawful discharge of contaminants into the air or waters of this state which results in damage to the animal or plant life of the state, or oth...

...“(3) Nothing herein shall give the department the right to bring an action on behalf of any private person. Nothing herein shall prohibit the department from proceeding forthwith to obtain 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. Based on this court’s decision in St. Regis Paper Company v. State, 237 So.2d 797 (Fla.App.1970), as modified in State v. St. Regis Paper Company, Fla., 257 So.2d 253 (1971), the lower court found that the language of Section 403.141(3), Florida Statutes, F.S.A., established the right to proceed with a court action without electing to assess damages under Section 403.-141(2), Florida Statutes, F.S.A., only at the conclusion of an administrative hearing....

...Regis Paper Company, supra, the Supreme Court filed an opinion on June 28, 1971, which stated: “We expressly do not decide whether the Act requires an administrative determination of damages and costs before the Department may proceed in court; or whether the administrative and judicial procedures created by Fla.Stat. § 403.141(2) and (3), F.S.A., are to be construed as giving rise to alternative remedies.” It is clear then that the previous decisions did not deal with Section 403.141, Florida Statutes, 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. Subsection (3) of Section 403.141, Florida Statutes, F.S.A., which provides that “nothing herein shall prohibit the Department from proceeding forthwith to obtain judicial determination of the liability and damages” modifies subsection (2) of Section 403.141, Florida Statutes, F.S.A., so that the Department may, but need not, assess damage before proceeding to court for judicial determination....

...pecific 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....

...n individual state attorney. Specifically, appellant James A. Gardner, the State Attorney for the Twelfth Judicial Circuit, seeks review of an order dismissing his independently initiated 1 complaint for damages and civil penalties filed pursuant to section 403.141(1), Florida Statutes (1981), and alternative petition for enforcement of agency action filed pursuant to section 120.69(l)(a), Florida Statutes (1981) (complaint/petition)....

...In that order, the court specifically ruled: (1) section 27.02 is merely enabling legislation for article V, section 17 of the Florida Constitution and simply “authorizes a state attorney to bring criminal and civil actions, but does not give special authority to bring an action [pursuant to section 403.141(1)],” and (2) section 120.69(l)(a) does not authorize a state attorney to bring a petition for enforcement of agency action because a state attorney is not included within the narrow definition of “agency” as set forth in section 120.52(l)(b)....

...issues which merit our discussion: (1) whether a state attorney has independent authority under section 27.02 (or any other statute) to institute in his judicial circuit and on behalf of the state a civil action for damages and penalties pursuant to section 403.141(1) for alleged violations of section 403.161(1) occurring in his circuit, and (2) whether a state attorney has independent authority under section 120.69(l)(a) to similarly institute a petition for enforcement to ensure compliance of...

...by DER with respect to Chapter 403 which allegedly are not being enforced by the department itself. Our examination of the applicable constitutional provisions, statutes, and case law compels us to answer both of the above questions in the negative. SECTION 403.141(1) CIVIL ACTION FOR DAMAGES AND PENALTIES The Relevant Statutory Provisions Chapter 403, and in particular Part I (sections 403.011 through 403.415(3)), is one of the legislature’s comprehensive endeavors, consistent with the mandat...

...issued by the department pursuant to its lawful authority. Subsection (2) of section 403.161 states that “[w]hoever commits a violation specified in subsection (1) is liable to the state for any damage caused and for civil penalties as provided in s. 403.141.” Subsection (1) of section 403.141, which is the alleged basis of appellant’s standing, provides in relevant portion: (1) Whoever commits a violation specified in s....

...Accordingly, we must analyze appellant’s assertions in light of the relevant statutory provisions. Discussion Appellant essentially argues that section 27.02 when read in conjunction with article Y, section 17 13 grants him the authority to independently initiate a section 403.141(1) civil action on behalf of the state....

...in that chapter. § 403.191; State ex rel. Shevin at 48, n. 8 . Therefore, on the basis of our foregoing analysis, we hold the constitution requires *1081 that a specific general law be enacted to enable a state attorney to independently initiate a section 403.141(1) civil suit on behalf of the state....

...eed on the complaint that was filed in this case. We first note, after scrutinizing its numerous sections, that no provision of Chapter 403 makes any reference whatsoever to a state attorney -much less expressly granting him the power to instigate a section 403.141(1) civil suit....

...the abatement of air and water pollution. 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)....

...18 We do, however, make the observation that a state attorney is not powerless to play a role in protecting the environment since the legislature has specifically empowered him to criminally prosecute section 403.161(1) violators. § 403.-161(3). 19 Thus, it seems clear from a plain and ordinary construction of section 403.141(1) that this particular provision merely creates the civil cause of action in favor of the state and subjects a section 403.161(1) violator to liability in favor of the state for damages, penalties, costs and expenses. Cf. Gardinier, Inc. v. 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....

...ally 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. Accordingly, as we interpret the powers of a state attorney with respect to Chapter 403, it is clear to us that he indeed lacks standing to bring a section 403.141(1) civil action against an alleged polluter such as GDC....

...It only makes sense that a statewide agency which is specifically chartered by the legislature as the state’s chief pollution control agency, as opposed to a localized state attorney whose primary responsibility is the enforcement of criminal laws, has the sole authority to institute civil actions pursuant to section 403.141(1)....

...That the legislature has chosen DER instead of the various state attorneys to civilly enforce provisions of Chapter 403 is a valid exercise of the legislature’s inherent powers. Absent a clear indication by the legislature through a specific general law that a state attorney can independently bring a section 403.141(1) civil action, we resist the invitation to legislate and thus will not grant that authority....

...ocated.”) (Emphasis supplied). Therefore, we hold only DER can sue under section 120.69(l)(a). 29 CONCLUSION Accordingly, we agree with the trial court’s ultimate rulings and hold that a state attorney has no standing to independently initiate a section 403.141(1) civil action for damages and penalties against an alleged violator of Chapter 403, and a state attorney has no standing under section 120.69(l)(a) to file a petition for enforcement of the rules and regulations promulgated by DER in relation to Chapter 403....

...ay the amount necessary to purge the contempt, such presumption would extend only to Rookery Bay’s ability to cure the problems and not to pay a fine accumulating at the *1065 rate of $10,000 per day. Assuming that the fine was imposed pursuant to section 403.141(1), Florida Statutes (1995), which provides for a fine a $10,000 per day when certain environmental offenses continue, that statute is not mandatory and permits consideration of mitigating evidence....

...But once the due process safeguards are met and the Commission has determined that one or more violations have occurred, it is then free to initiate a complaint seeking judicial imposition of penalties; it is also free to assess damages and costs under Fla. Stat. § 403.141 (1), F.S.A....

...ality, political subdivision, or public or private corporation. (Emphasis added). Section 403.161, Florida Statutes (1993), enumerates proscribed conduct and practices which could expose “any person” to personal liability under the Act. See also § 403.141, Fla....

...Moreover, paragraphs 205 and 222 allege that these fraudulent acts and omissions exceeded the scope of Ryan’s duties as an officer/director of Harbor. We find that the complaint sufficiently alleges conduct by Ryan which, if proven, would make him personally liable under sections 403.141 and 403.161, Florida Statutes (1993)....