Arrestable Offenses / Crimes under Fla. Stat. 403.161
S403.161 1a - CONSERVATION-ENVIRONMENT - RECKLESS CARELESS POLLUTE CAUSE HARM - M: S
S403.161 1a - CONSERVATION-ENVIRONMENT - POLLUTE TO HARM HUMANS ANIMALS PLANT ETC - F: T
S403.161 1b - CONSERVATION-ENVIRONMENT - RECK/CARELESS FAIL OBT DEP PERMIT COMPLY W LAW - M: S
S403.161 1b - CONSERVATION-ENVIRONMENT - FAIL TO OBTAIN DEP PERMIT COMPLY W LAW - M: F
S403.161 1c - CONSERVATION-ENVIRONMENT - RENUMBERED. SEE REC # 9307 - M: F
S403.161 1c - FRAUD-FALSE STATEMENT - FALSE STATEMENT DEP DOCUMENT TAMPER W DEVICE - M: F
CopyCited 37 times | Published | Supreme Court of Florida | 2004 WL 396212
...Hamilton,
388 So.2d 561, 563 (Fla.1980), is a textbook example of the type of criminal offense that the Supreme Court has described as a "public welfare offense." The statute in Hamilton involved water pollution violations. See id. at 562 (analyzing the constitutionality of section
403.161, Florida Statutes (1977)). The penalties for violation of the statute were misdemeanors and were limited to civil penalties or short jail sentences. §
403.161, Fla....
...Notably, the punishments that involved jail sentences also required some proof regarding the defendant's state-of-mindi.e., that the defendant "knowingly" made a false statement or at the very least that the defendant "willfully or negligently" committed the violation. See § 403.161(1)(c), (3)-(4), Fla....
CopyCited 35 times | Published | Florida 1st District Court of Appeal | 1974 Fla. App. LEXIS 8670
...n 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)....
...(1st) 1970,
237 So.2d 797) Florida Statute
403.121, F.S.A. provides for enforcement procedures for violations of the act. It is noted that written notice and an evidentiary hearing to establish facts of the violation are specifically required. Florida Statute
403.161, F.S.A....
...re than $5,000 for each offense thereafter." It is also provided that each day during any portion 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....
...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. are concerned with enforcement by the Commission of the laws under the Chapter, these enactments do not address themselves to the imposition of penalties. Penalties are provided for under Fla. Stat. §
403.161(2) and (3), F.S.A....
CopyCited 30 times | Published | Florida 1st District Court of Appeal | 1 ERC 1515
...re the Commission established therein to exercise its primary jurisdiction, give notice of an alleged violation or fulfill any administrative duties as a condition precedent to the institution of an action for civil penalties under the provisions of Section 403.161, Florida Statutes, 1967, F.S.A.? The undisputed facts for consideration are: The Air and Water Pollution Control Commission, acting on behalf of the State of Florida, pursuant to the authority contained in Chapter 403, Florida Statute...
...Comfort is sought by the Commission from the text, Water Law and Administration, The Florida Experience, authored by Maloney, Plager and Baldwin, in that the authors concluded that the legislature strengthened the enforcement powers of the State especially in § 403.161....
...mmission for initial relief without regard to §
403.121 in those circumstances coming within the purview of §
403.131. The trial court is directed to grant the instant motion to dismiss. Reversed. JOHNSON, C.J., and SPECTOR, J., concur. NOTES [1] "
403.161 Prohibition, violation, penalty, intent....
...ith any order of the Commission or if the Director finds that a generalized condition of air or other pollution exists and that such condition creates an emergency requiring immediate action to protect human health or safety. [3] A 1970 amendment to § 403.161 increased the civil penalty to a maximum of $5,000.00 per day....
CopyCited 21 times | Published | Supreme Court of Florida | 2001 WL 298917
...t criminalized in section
823.01 was different and more encompassing than that proscribed by chapter 403. See id. at 716. Judge Ervin noted that to establish a violation under chapter 403, the State was required to offer proof of harm or injury, see §
403.161, Fla....
...(1995); whereas under section
823.01, the State need only show community annoyance. See id. Judge Ervin discussed well-established principles of statutory analysis and construction and further noted the far different elements of proof involved with section
403.161 than those applicable under section
823.01....
CopyCited 16 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 2276, 1985 Fla. App. LEXIS 16120
...The plaintiff brought the present action seeking compensatory and punitive damages from Ocean Reef for "wrongful discharge." The plaintiff alleged that he was discharged solely because he refused to participate in Ocean Reef's criminal activity. See § 403.161, Fla....
CopyCited 15 times | Published | Supreme Court of Florida | 11 Envtl. L. Rep. (Envtl. Law Inst.) 20
...Smallwood, Asst. Gen. Counsel, Dept. of Environmental Regulation, Tallahassee, for appellant. Michael L. Bryant of Birr, Bryant & Saier, Gainesville, for appellee. ADKINS, Justice. This is an appeal from an order of the Alachua County Court which held section 403.161(1)(a), Florida Statutes (1977) unconstitutional....
...tion Control Act: It shall be a violation of this Chapter, and it shall be prohibited: (a) To cause pollution, except as otherwise provided in this Chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property. § 403.161(1)(a), Fla....
...Environmental Protection Agency, 15 Ill. App.3d 66, 303 N.E.2d 606 (5th App.Dist.Ct. 1973). The statute under which defendant was charged makes it a crime to cause pollution "so as to harm or injure human health or welfare, animal, plant or aquatic life or property." § 403.161(1)(a), Fla....
...save the statute. In light of our holding that the statute is sufficient in and of itself to withstand the vagueness challenge, we need not address the details of the regulatory language. The information in this case charged defendant with violating section 403.161(1)(a), Florida Statutes (1977). The violation must be done "willfully or negligently" to give rise to a criminal penalty. § 403.161(3), Fla....
...The state urges us to construe the instant statute as proscribing willful or culpably negligent conduct. This we cannot do. Even where *564 legislation is specifically enacted in the public interest there must be clearly ascertainable standards of guilt by which a citizen may gauge his conduct. Section 403.161(3), Florida Statutes (1977), purports to impose criminal liability upon acts or omissions done entirely without intent....
CopyCited 12 times | Published | Supreme Court of Florida | 1998 WL 732936
...Glogau, Assistant Attorney General, Tallahassee, for Respondent. David K. Thulman, Assistant General Counsel, Tallahassee, for State of Florida Department of Environmental Protection, Amicus Curiae. ANSTEAD, Justice. We have for review a challenge to the constitutionality of section 403.161, Florida Statutes (1993) which penalizes the willful violation of any administrative rule, regulation or permit condition promulgated for the purpose of preventing and controlling pollution....
...For the following reasons, we uphold the statute and approve the decision of the district court. MATERIAL FACTS [1] Petitioners, Avatar Development Corporation and Amikam Tanel (hereinafter referred to collectively as "Avatar") were charged with violating section 403.161(1)(b), Florida Statutes (1993) for failing to comply with special conditions to prevent pollution expressly set out in a dredge and fill permit issued by the Department of Environmental Protection (DEP) to Avatar....
...working order until all of the authorized work is complete, and turbidity levels in the project area are within 29 NTUs of background levels. When Avatar failed to comply with permit conditions three and five, the State charged Avatar with violating section 403.161(1)(b). Pursuant to section 403.161(5), both of these alleged violations constitute first-degree misdemeanors punishable by fine or imprisonment or both. On motion of Avatar, the county court dismissed the charges, finding section 403.161 unconstitutional as an invalid delegation of legislative authority as well as a violation of the Due Process Clause, and certified *201 the constitutional question [3] to the Fourth District Court of Appeal. The district court reversed and upheld the constitutionality of section 403.161. LAW AND ANALYSIS At issue in this case is section 403.161, which declares unlawful any violation of rules, regulations, and permit conditions promulgated by DEP for the purpose of accomplishing the Legislature's stated policy in preventing pollution....
....... (b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority. § 403.161(1)(b), Fla. Stat. (1993). Subsection (5) of the statute states that "[a]ny person who willfully commits a violation specified in paragraph (1)(b) ... is guilty of a misdemeanor of the first degree" punishable by fine or imprisonment or both. Id. § 403.161(5)....
...atar received provided them with express and actual notice of the conditions upon which the permit was issued and section 408.161 unequivocally provided that noncompliance with such a permit constitutes a misdemeanor. Id. Unlike the statute in B.H., section 403.161 does not leave to DEP the decision to determine which acts constitute a crime....
...On the other hand, DEP is peculiarly qualified and suited to handle this charge. Thus, the statute merely operates as an enforcement tool to ensure compliance with DEP's rules, regulations and permit conditions and does not provide DEP with unlimited discretion to define which acts constitute a crime. Moreover, section 403.161 also clearly puts the public on notice as to which acts will result in criminal punishment. The statute unequivocally prohibits the willful violation of any rule, regulation or permit condition. See § 403.161(1)(b)....
...ature's function in establishing fundamental policy, and an administrative agency's administration and fulfillment of that policy through the promulgation of administrative rules and regulations and the issuance of conditional permits. The fact that section 403.161 provides criminal sanctions for the willful violation of administrative rules and regulations is of little consequence where it is the Legislature, and not the administrative body, that has declared such acts unlawful based upon express legislative policy. In summary, we hold that section 403.161 constitutes a valid delegation of legislative authority to an administrative agency....
...r benthic organisms if the particles settle out of the water column. Id. Standards for turbidity screens are found in rule 62-302.530(70) of the Florida Administrative Code. [3] The trial court certified the following question: "Are Florida Statutes § 403.161(1)(b) or § 403.161(5) unconstitutional as charged in the information?" [4] Ch....
...93-213, § 45, at 2157, Laws of Fla., which originally listed the criteria for DEP to consider in issuing permits. Under the same law, the criteria were transferred to section
373.414(1). See ch. 93-213, § 30, at 2144. [10] We reject without discussion petitioners' remaining point on review that section
403.161 is a special law which the constitution expressly prohibits from being created for the purpose of punishing crimes.
CopyCited 12 times | Published | District Court, S.D. Florida | 1988 A.M.C. 2705, 1988 U.S. Dist. LEXIS 7271, 1988 WL 73386
...on, or over surface waters without a permit from the [Department of Environmental Regulation]...." [4] See also F.S.A. §
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....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1992 WL 282091
...rceable as to Glidco, and entered an order on February 25, 1991, granting Glidco's motion. Thereafter DER intervened and filed a complaint against Glidco and SAFE alleging violations of 40 C.F.R. § 61.147, Florida Administrative Code Rule 17-2.670, Section 403.161(1), Florida Statutes, and JEPB rule 2.209, caused by their failure to wet adequately asbestos materials during stripping and to keep such material wet until it was removed....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...[10] REVERSED and REMANDED for further proceedings consistent with this opinion. MILLS, C.J., and McCORD, J., concur. NOTES [1] A prohibition against violation of water quality standards was established by subsection (1) of Chapter 67-436, Laws of Florida (1967) (Section 403.161, Florida Statutes (1967)), and water quality standards, the predecessors of Chapter 17-3, Florida Administrative Code, were filed with the Secretary of State on May 18, 1967....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1991 WL 75657
...Subsequently Sergeant Allen, an officer of the Florida Game and Fresh Water Fish Commission, observed the driveway, which he determined was built within DER's jurisdictional dredge and fill lands, and issued a complaint affidavit charging Fischer with violating Section 403.161, Florida Statutes (1989)....
...1st DCA 1982) (case remanded on the issue of entitlement to section
120.57 hearing even though another potential remedy was available via the comptroller's office). REVERSED and REMANDED with directions to grant appellant's petition for a formal
120.57 hearing. [6] JOANOS and MINER, JJ., concur. NOTES [1] Section
403.161(1)(b) provides that it is a violation of chapter 403 for any person to fail to obtain any permit required by the chapter....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...In an order dated April 21, 1981, the Circuit Court of Osceola County found that the utility's Camelot Manor South sewage treatment plant had caused pollution by discharging effluent into the surface waters of Shingle Creek/Lake Tohopeliga Basin in violation of Section 403.161, Florida Statutes, a prior consent order and DER permit....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal
...)(a) gave him authority to file the alternative petition for enforcement because a state attorney is "an agency" under section
120.52(1)(b); (2) GDC, a Delaware corporation, d/b/a in Florida, is subject to the provisions of chapter 403, specifically
403.161(1), and its correlative rules and regulations promulgated by DER; (3) GDC's various dredge and fill operations since July 1979 in Sarasota County with respect to construction and/or modification of certain canals and impoundments and creation of artificial lakes without valid DER permits resulted in prohibited air and water pollution under section
403.161(1) [5] ; and (4) GDC's similar activities since December 1978 with respect to the creation and/or maintenance of the "Snover Waterway," the "Cocoplum Waterway," and the "Myakkahatchee Relief Canal" resulted in violations of water quality standards and related regulations also proscribed by section
403.161(1)....
...r 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 certain rules and regulations promulgated by...
...[12] As previously mentioned, it was GDC's alleged failure to obtain valid permits for its dredge and fill operations and GDC's alleged violation of DER's water quality standards which formed the basis of appellant's civil suit for damages and penalties. Section 403.161(1), Florida Statutes (1981), enunciates what shall constitute violations of Chapter 403....
...(b) To fail to obtain any permit required by this chapter or by rule or regulation, *1079 or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or 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.
403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlli...
...state's behalf without further legislative approval. However, the provision does not give a state attorney the authority to initiate a cause of action created by statute in favor of the state to recover civil damages and penalties for violations of section 403.161(1)....
...)(b), Florida Statutes (Supp. 1972). [17] The opinion also mentioned that the Department of Legal Affairs was named by the statute as DER's legal representative. Additionally, even though the state attorney contends that his right to civilly enforce section 403.161(1) violations is consistent with the mandates of article II, section 7, the argument fails because of two reasons....
...141(1). See §§
403.061(6);
403.121;
404.131. [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....
...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....
...He shall be and have been a member of the bar of Florida for the preceding five years. He shall devote full time to his duties, and he shall not engage in the private practice of law. State attorneys shall appoint such assistant state attorneys as may be authorized by law. [5] See §§
403.087(1);
403.161(1)(a), (b); Rules 17-4.02(3), (17); 17-4.03, 17-4.28(1)(3), Fla. Admin. Code. [6] See §
403.161(1)(b); Rules 17-3.011(5); 17-3.091(13); 17-3.121(14); 17-3.161(3)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...o's petition for administrative hearing alleged far more than potential economic injury. Phibro was served with a warning which informed it that the existence of pollutants exceeding permissible levels in groundwaters would constitute a violation of Section 403.161, Florida Statutes (1985), and it was specifically notified that a former owner, which it was, could be held responsible for its previous operations if such operations contributed to the present contamination at the site. Additionally, section 403.161(2) imposes liability against a violator for any damage caused and for civil penalties, and subsection (3) thereof subjects any such violator to the criminal sanction of a misdemeanor of the first degree....
CopyCited 5 times | Published | United States Bankruptcy Court, M.D. Florida | 8 Fla. L. Weekly Fed. B 185, 1994 Bankr. LEXIS 1522
...s. As debtor-in-possession, pursuant to 11 U.S.C. § 1108, debtor continues in operation of its business. Debtor does not propose liquidation nor is debtor merely preserving assets. Debtor has failed to comply with the consent order. Florida statute § 403.161(1)(b) states "[i]t shall be a violation of this chapter, and it shall be prohibited for any person: to fail to comply with any rule, regulation, order, ....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2001 WL 1200910
...lth or welfare, animal or plant life [ ... ] unless authorized by applicable law. It is illegal to "cause pollution," except as otherwise provided by law, "so as to harm or injure human health or welfare, animal, plant, or aquatic life or property." § 403.161(1)(a), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1990 WL 7630
...violation of §
376.302, Fla. Stat., (prohibiting discharge of refined petroleum products upon waters and lands of the state); Fla. Admin. Code Rule 17-3.402(1) (requiring that all groundwaters at all places and times be free from toxic pollutants); §
403.161(1)(a), Fla. Stat., (prohibiting pollution harmful to human, animal, aquatic or plant life, or property); and §
403.161(1)(b), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 291, 1985 Fla. LEXIS 3392
...held nor said anything about the possibility of a state attorney bringing an enforcement proceeding in an official capacity pursuant to the provisions of section
403.412, Florida Statutes (1981), or a proceeding to establish criminal liability under section
403.161.
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 272775
...The terms and conditions set forth in the Consent Order may be enforced in a court of competent jurisdiction pursuant to Sections
120.69 and
403.121, Fla. Stat. Failure to comply with the terms of this Consent Order shall constitute a violation of Section
403.161(1)(b), Fla....
...c provisions of chapter 403 establishing criminal penalties for certain violations of the pollution laws, it is readily apparent that the conduct criminalized in section
823.01 is far different and more encompassing. Subsections (3), (4), and (5) of Section
403.161 Florida Statutes (1989), create three classes of crimes for specified violations of the pollution laws....
...that it is a violation of chapter 403 for any person "[t]o cause pollution ... so as to harm or injure human health or welfare, animal, plant, or aquatic life or property." Thus, in order to constitute a misdemeanor of the second degree pursuant to section 403.161(4), or, indeed, any of the other classes of crimes listed under section 403.161, proof must be presented of harm or injury....
...To "injure", on the other hand, is defined as "to do physical harm or damage to," or to "hurt." Id. at 725. Thus, we see from the statutory provisions that there is a marked distinction between the language prohibiting a public nuisance and that establishing a violation of section
403.161. There is also an element of proof imposed upon the state by section
403.161(4) that the person charged must have acted with reckless indifference or gross careless disregard before such person may be convicted of a second-degree misdemeanor, different from the proof required by section
823.01, which contains no similar language....
...In my judgment, it clearly appears from an examination of both the conduct proscribed *717 and the penalties provided in the two statutes that the legislature intended each statute to occupy its own separate field of operation. This is because a violation of section 403.161 may but need not constitute a public nuisance, defined as conduct which "violates public rights, subverts public order, decency or morals, or causes inconvenience or damage to the public generally." Orlando Sports Stadium, Inc....
...Powell,
262 So.2d 881, 884 (Fla. 1972). A public nuisance usually affects the public at large, whereas a private nuisance only affects an individual or a limited number of individuals. 38 Fla. Jur.2d Nuisance § 5 (1982). In contrast, the language of section
403.161(1)(a), proscribing, inter alia, the harming or injuring of human health, is not explicitly confined to the health of the community at large....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1997 WL 352895
...thylene (PCE) contamination of a monitoring well. 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)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 WL 394482
...s Curiae-State of Florida Department of Environmental Protection. PER CURIAM. We have accepted jurisdiction pursuant to Rule 9.160, Florida Rules of Appellate Procedure, of the following certified question from the county court: Are Florida Statutes § 403.161(1)(b) or § 403.161(5) unconsitutional as charged in the information? Based on the certified question, the State of Florida appeals the dismissal of its criminal misdemeanor information against appellees Avatar Development Corp. ("Avatar") and Avatar's vice president, Amikam Tanel. We answer the certified question in the negative and we reverse the order dismissing the information. The challenged statute subsections [1] provide: *563 403.161 Prohibitions, violation, penalty, intent. (1) It shall be a violation of this chapter, and it shall be prohibited for any person: .......
...(5) Any person who willfully commits a violation specified in paragraph (1)(b) ... is guilty of a misdemeanor of the first degree punishable as provided in ss.
775.082(4)(a) and
775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each offense. Fla. Stat. §
403.161 (1995)....
...the authorized work is complete, and turbidity levels in the project area are within 29 NTUs of background levels. On November 28, 1995, the State charged Avatar and Tanel by information with two misdemeanors. Count I charged that appellees violated Section 403.161(1)(b) by willfully failing to provide written notice to the Department of Environmental Protection at least 48 hours before beginning the work authorized by the permit. Count II charged that appellees violated Section 403.161(1)(b) by willfully failing to employ turbidity curtains before beginning work authorized by the permit. Both counts also charge that these acts are first degree misdemeanors pursuant to Section 403.161(5), Florida Statutes....
...ches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. (Emphasis added). The trial court also relied on B.H.,
645 So.2d at 987, when it concluded that Sections
403.161(1)(b) and
403.161(5) were unconstitutional under Article II, Section 3....
...We also conclude that setting terms and conditions for a permit to dredge and fill, when authorized by a legislative program which requires attention to the unique conditions of the site, is especially suitable for determination by an administrative body. Sections
403.161(1)(b) and
403.161(5) do not unconstitutionally delegate legislative authority to an administrative agency. Finally, the trial court misplaced its reliance on Conner v. Joe Hatton, Inc.,
216 So.2d 209 (Fla.1968), when it found that Sections
403.161(1)(b) and (5) violate due process....
...cy can best be handled at the administrative level. The establishment of grades or standards of quality for fruits and vegetables appears to be especially suitable for determination by an administrative body. Id. at 212 (citations omitted). Sections 403.161(1)(b) and 403.161(5), Florida Statutes, unambiguously provide that to violate or fail to comply with a permit is a violation of the statute and constitutes a first degree misdemeanor....
...The terms and conditions presented in Section
403.021, which authorizes the Department of Environmental Protection to establish the permit system and enact rules and regulations to further the statute's purposes, are consistent with the legislature's intent to enforce these provisions under Section
403.161. The permit appellees received provided them with actual notice of the conditions upon which the permit was issued. In our view, the provisions of Chapter 403 satisfy the requirements of due process. Accordingly, we hold that Sections
403.161(1)(b) and
403.161(5) do not unconstitutionally delegate legislative authority to the Department of Environmental Regulation and do not violate due process....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2005 WL 405485
...atutes, and sections 62-601.300(1) & (2), 62-4.030, 62-620.335, and 62-620.300(1) & (2), Florida Administrative Code, (ii) discharge monitoring reports for the wastewater treatment facilities had not been received for various months, in violation of section 403.161(1)(b), Florida Statutes, and sections 62-601.300(1)(b) and 62-4.030, Florida Administrative Code, and (iii) specified discharge monitoring reports for the wastewater treatment facilities did not contain the proper information in violation of rule 62-601.300(1)(b), Florida Administrative Code....
CopyAgo (Fla. Att'y Gen. 1975).
Published | Florida Attorney General Reports
established for a particular body of water. Section
403.161, as amended by Ch. 74-133, Laws of Florida
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 11367, 1991 WL 231624
PER CURIAM. This is an appeal of an order of the Department of Environmental Regulation which finds a failure to adequately treat stormwater runoff, in violation of Florida Administrative Code Rule 17-25 and section 403.161(1)(b), Florida Statutes, and orders corrective action....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 3918, 1990 WL 71770
...ohibits the construction, maintenance of any structure, equipment, facility, or operation which would reasonably be expected to be a source of pollution of “waters of the state” as defined in section
403.031(3), Florida Statutes, (1979), and (3) section
403.161, Florida Statutes, which prohibits pollution harmful or injurious. to animal, plant or aquatic life or property. The authority over wetlands jurisdiction that DER asserted in 1986 after the Perrys' purchase was under section
403.161, Florida Statutes....
...11 Upon enactment of the Wetlands Protection Act in 1984, FAR 17-4.022 was revised to provide an expanded list of vegetative species for purposes of delineating the DER wetlands jurisdictional line relating both to DER’s old pollution based regulatory authority (sections
403.087 and
403.161, Fla.Stat.), and also as to its new dredge and fill authority under the Wetlands Protection Act....
...pollution invoking DER regulatory authority under section
403.087, Florida Statutes, or (2) that such fill dirt constituted a pollutant harmful or injurious to animal, plant or aquatic life or property so as to involve DER regulatory authority under section
403.161, Florida Statutes....
...eal section
403.031 which appears to continue to define "waters” for the purposes of the “Florida Air and Water Pollution Control Act.” Peculiarly, in this case DER asserted authority as to wetlands described pursuant to section 403.817, under section
403.161 and not under section 403.913(1)....
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 6997
...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....
...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. 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....
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 12361
...gave him authority to file the alternative petition for enforcement because a state attorney is “an agency” under section
120.52(l)(b); (2) GDC, a Delaware corporation, d/b/a in Florida, is subject to the provisions of chapter 403, specifically
403.161(1), and its correlative rules and regulations promulgated by DER; (3) GDC’s various dredge and fill operations since July 1979 in Sarasota County with respect to construction and/or modification of certain canals and impound-ments and creation of artificial lakes without valid DER permits resulted in prohibited air and water pollution under section
403.161(1) 5 ; and (4) GDC’s similar activities since December 1978 with respect to the creation and/or maintenance of the “Snover Waterway,” the “Cocoplum Waterway,” and the “Myakkahatchee Relief Canal” resulted in violations of water quality standards and related regulations also proscribed by section
403.161(1)....
...r 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 certain rules and regulations promulgated by...
...12 As previously mentioned, it was GDC’s alleged failure to obtain valid permits for its dredge and fill operations and GDC’s alleged violation of DER’s water quality standards which formed the basis of appellant’s civil suit for damages and penalties. Section 403.161(1), Florida Statutes (1981), enunciates what shall constitute violations of Chapter 403....
...(b) To fail to obtain any permit required by this chapter or by rule or regulation, *1079 or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or 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.
403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlli...
...tate’s behalf without further legislative approval. However, the provision does not give a state attorney the authority to initiate a cause of action created by statute in favor of the state to recover civil damages and penalties for violations of section 403.161(1)....
...l)(b), Florida Statutes (Supp.1972). 17 The opinion also mentioned that the Department of Legal Affairs was named by the statute as DER’s legal representative. Additionally, even though the state attorney contends that his right to civilly enforce section 403.161(1) violations is consistent with the mandates of article II, section 7, the argument fails because of two reasons....
...3.141(1). See §§
403.061(6);
403.121;
404.131. 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....
...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....
...He shall be and have'been a member of the bar of Florida for the preceding five years. He shall devote full time to his duties, and he shall not engage in the private practice of law. State attorneys shall appoint such assistant state attorneys as may be authorized by law. . See §§
403.087(1);
403.161(l)(a), (b); Rules 17-4.02(3), (17); 17-4.03, 17-4.28(1)(3), Fla.Admin.Code. . See §
403.161(l)(b); Rules 17-3.011(5); 17-3.-091(13); 17-3.121(14); 17-3.161(3)....
CopyPublished | Supreme Court of Florida | 3 ERC 1908, 3 ERC (BNA) 1908, 1971 Fla. LEXIS 3089
...Article V, § 4(2), Florida Constitution, F.S.A. Discussion of the conflict and its resolution will be reserved for the latter part of this opinion. In March 1969, the Commission filed in Circuit Court, Duval County, a complaint against St. Regis under Fla.Stat. § 403.161, F.S.A....
...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 trial court is directed to grant the instant motion to dismiss.”
237 So.2d at 800 . The enforcement and penalty provisions of Chapter 403 have not been drafted with precision, but we agree with the District Court that a scheme of administrative review is apparent. Fla.Stat. §
403.161(1) provides that it is unlawful to contaminate the waters of this State in violation of rules fixing standards of water quality....
...Although Fla.Stat. §
403.121(1), (2) and (3), F.S.A. are concerned with enforcement by the Commission of the laws under the Chapter, these enactments do not address themselves to the imposition of penalties. Penalties are provided for under Fla.Stat. §
403.161(2) and (3), F.S.A....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 12887, 1996 WL 720864
...public or private corporation, individual, partnership, association, or other entity and includes any officer or governing or managing body of the state, the United States, any agency, any municipality, 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....
...Contrary to the trial court’s order and Novota,
588 So.2d at 1053, cited therein, we find no language in the statute to limit civil liability to permittees and facility owners only. We nóte that chapter 89-324, section 8, Laws of Florida (1989), which amended' section
403.161, was specifically enacted to provide a statutory cause of action against corporate officers and directors, individually, for their violations of state environmental law. Prior to the 1989 amendment, section
403.161 contained a general prohibition without use of the phrase “any person.” See §
403.161. Fla. Stat. (Supp.1988). Section
403.161 was amended in response to inconsistent interpretations by Florida courts, most of which held that corporate officers and directors are not proper parties to the Department’s civil enforcement actions....
...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)....
...State, Department of Environmental Regulation,
588 So.2d 1053 (Fla. 1st DCA 1991), as controlling authority for the proposition that the Department may not proceed individually and personally against any party who is neither a permittee, permit applicant nor owner of a facility. . Section
403.161 (l)(c) provides: (1) It shall be a violation of this chapter, and it shall be prohibited for any person: ⅜ ⅜ ⅝ ⅜ ⅜ ⅜: (c) To knowingly make any false statement, representation, or certification in any application, record,...
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 12258, 1991 WL 259267
...None of the defenses put forth by the owner were sufficient to defeat DER’s right to a temporary injunction. DER need not demonstrate that the owner have knowledge of the release of improperly treated wastewater before obtaining in-junctive relief. § 403.161, Fla.Stat.; Fla.Admin.Code Rule 17-600.740(2)(a)....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1950, 1988 Fla. App. LEXIS 3712, 1988 WL 84339
...Hamilton,
388 So.2d 561 (Fla. 1980) for the proposition that in order to charge a crime under the various pollution statutes it was necessary that the information allege actual harm. We reverse. State v. Hamilton dealt with the constitutionality of section
403.161(l)(a), Florida Statutes (1977)....
...ong which are those conditions charged in Count III, to wit, production and disposal of dangerous waste material from a manufacturing process harmful to human or animal life. None of these statutes require allegation or proof of actual harm, as does section 403.161(l)(a)....
...m, an element of that charge. Dismissal of Count IV was also error. REVERSED and REMANDED for further proceedings. COBB and DANIEL, JJ., concur. . §
403.727(3)(b), Fla.Stat. (1983). . § 387.08, Fla.Stat. (1983). . §
386.041, Fla.Stat. (1983). . §§
403.161(l)(a) and (3), Fla.Stat....
