Florida/Georgia Personal Injury & Workers Compensation

...We disagree both that the statute draws such a distinction and that, if it did, the result would be incongruous. Aramark relies on section 376.308(1)(a), which limits the entities DEP can sue. The very next subsection, however, section 376.308(1)(b), allows the DEP to sue "all persons specified in s. 403.727(4)." That section allows the DEP to hold liable the "owner and operator of a facility" for damages arising from the discharge of "hazardous substances." Perchloroethlyene (PCE), which was found in Easton's groundwater, qualifies as a "haza...

...inary meaning). "Facility" is defined as "something that is built, installed, or established to serve a particular purpose." Merriam Webster's Collegiate Dictionary 416 (10th ed.1994). Under this definition, Aramark is an "owner of a facility" under section 403.727(4)(a) and subject to suit by the DEP without proof of causation....

...CERCLA Liability Count I of the amended complaint alleges that Pepper’s and FP & L are entitled to contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9607 , and *1317 under Fla.Stat.Ann. § 403.727 (1986)....

...justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. . Fla.Stat. § 403.727(4)(c) is identical to 42 U.S.C. § 9607 (a)(3). For the purposes of this opinion, our discussion concerning 42 U.S.C. § 9607 (a)(3) should be treated as applicable to Fla.Stat. § 403.727(4)(c)....

...Count VIII seeks cost recovery, contribution, and declaratory relief pursuant *1325 to Section 376.313, Florida Statutes. Section 376.313 allows an individual to bring a cause of action for damages and contribution resulting from pollution discharges. 11. Count IX seeks contribution and declaratory relief pursuant to Section 403.727, Florida Statutes. Section 403.727(8) provides that a party liable for pollution conditions which violate the statute shall have a right to contribution from other parties liable for the pollution conditions, as set forth in § 403.727(c). Section 403.727(c) is modeled 42 U.S.C....

...The Court Lacks Jurisdiction Over Counts VIII, IX and X Brought Pursuant to Florida Statutes and the Miami-Dade County Code 98. Counts VIII, IX, and X alleges claims for contribution and other relief *1354 under state law, Fla. Stat. §§ 376.313 and 403.727, and Chapter 24 of the Miami-Dade County Code....

...The waste was transported to Silvex's facilities where it was stored and then incinerated. In December, 1981, the contents of a 25,000 gallon storage tank owned by Pepper were released onto the ground at the Silvex site. The plaintiff seeks to hold the Navy liable for damages and injunctive relief under Fla.Stat. §§ 403.727(4), and 403.726. [2] Section 403.727(4) holds strictly liable for removal costs and resource damage those, among others, who owned or possessed the released hazardous waste....

...filed an objection to the motion to file cross-claims on August 10, 1984. [2] It is unclear on the face of the Complaint which statutes the Navy is alleged to have violated. Pursuant to the Court's order for clarification, the DER has stated that it "seeks to assert only the claim brought pursuant to Section 403.727(4), Florida Statutes appearing in Count V and the claim brought pursuant to Section 403.726, Florida Statutes, appearing in Count VI...." Response to Order dated January 7, 1985....

...Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982). NOTES [1] Counts III and IV seek recovery costs and contribution under § 376.313(3), Fla.Stat. Count V is a contribution claim under § 768.31, Fla. Stat., and under Florida common law. Count VI is a contribution claim under § 403.727, Fla....

...(b), Florida Statutes (1985), and for investigative costs under section 403.141(1), Florida Statutes (1985). She further found the above appellants along with appellant Jura Services, Inc., jointly and severally liable for investigative costs under section 403.727(4), Florida Statutes (1985). We reverse, because the Secretary improperly substituted her judgment for that of the hearing officer on the violation findings, and because the agency failed to provide notice of its intent to seek costs under section 403.727(4)....

...on the same evidence). Because the hearing officer's findings are supported by competent, substantial evidence, it was error for the Secretary to reject and/or modify them. The Secretary also erred by imposing liability for investigatory costs under section 403.727(4), because the charging instruments did not provide the parties with sufficient notice of this claim....

...The state appeals two orders of the trial court entered after a jury convicted the appellee, Joseph Delgrasso, of illegally storing or disposing of hazardous waste. The trial court granted appellee's motion for judgment of acquittal and appellee's motion to dismiss. We reverse because section 403.727, Florida Statutes (1991), is not vague or ambiguous....

...Appellee indicated he was cleaning up the property but did not know what was in the large barrels. He refused to accompany Fowler to the property to assist with the cleanup. Appellee stated the situation was contrived by the residents to avoid paying their rents. Appellee was charged by information with a violation of section 403.727, Florida Statutes (1991), unlawfully disposing of or storing hazardous waste at a place other than a validly permitted hazardous waste facility and by so doing exhibiting reckless indifference or gross careless disregard for human health....

...A second count charged him with inflicting actual personal injury through culpable negligence in violation of section 784.05, Florida Statutes (1991). The trial judge granted a motion for judgment of acquittal as to the culpable negligence count, and the jury found appellee guilty of the violation of section 403.727....

...The trial court also erred in finding the statute unconstitutional for failing to distinguish between the procedures and penalties for civil infractions and criminal penalties. This conclusion by the trial court fails to take into account other provisions of chapter 403, provisions that are cited to in section 403.727, which outline in more detail the procedures for civil and administrative enforcement for violations of the act. See §§ 403.121, 403.131 and 403.141, Fla. Stat. (1991). Section 403.727 must be read in conjunction with the other enforcement provisions and the overall regulatory scheme....

...The statute is not unconstitutional for failing to distinguish civil and criminal penalties. We also reverse the trial court's granting of the defendant's motion for judgment of acquittal. Appellee was charged in an amended information with illegal storage of hazardous waste, contrary to section 403.727(3)(b)2.a., Florida Statutes. This subsection provides in pertinent part: 403.727....

...ous waste is transported, stored, treated and disposed of in a manner adequate to protect the public health, safety and welfare. See § 403.702, Fla. Stat. (1991). To achieve this end, the legislature has deemed it appropriate that subsection (3) of section 403.727 apply to "any person." A person is defined in section 403.703(4) as any and all persons, natural or artificial, including any individual, firm or association....

...The waste was transported to Silvex’s facilities where it was stored and then incinerated. In December, 1981, the contents of a 25,000 gallon storage tank owned by Pepper were released onto the ground at the Silvex site. The plaintiff seeks to hold the Navy liable for damages and injunctive relief under Fla.Stat. §§ 403.727(4), and 403.726. 2 Section 403.727(4) holds strictly liable for removal costs and resource damage those, among others, who owned or possessed the released hazardous waste....

PER CURIAM. The Department of Environmental Protection appeals a final summary judgment by which the trial court determined that the uncontroverted facts establish that the third party defense in section 403.727(5)(d), Florida Statutes, protects the appellee from the Department’s claims....

...the cost of such cleanup upon those who created and profited from the sites. In one of those federal court opinions, Florida Power & Light Co. v. Allis Chalmers *153 Corp, 893 F.2d 1313 , 1317 n. 3 (11th Cir.1990), the court noted: “Fla.Stat. § 403.727(4)(c) is identical to 42 U.S.C. § 9607 (a)(3). For the purposes of this opinion, our discussion concerning 42 U.S.C. § 9607 (a)(3) should be treated as applicable to Fla.Stat. § 403.727(4)(c).” We agree that the WQAA should be interpreted in the same manner as CERCLA....

...ndemnification), Count Eight (CERCLA § 107), Count Nine (CERCLA § 113), Count Ten (Violation of the Florida Pollutant Discharge *1259 Prevention and Removal Statutes, Florida Statute § 376 et seq. ), and Count Eleven (Violation of Florida Statute § 403.727) are brought against both Chevron and Shell....

...n control statute having a penal provision is charged. We disagree. The statute involved in Hamilton requires actual harm, but that is not the case with the other statutes under which Counts I, II and III were charged. Count I charges a violation of section 403.727(l)(b) which prohibits the knowing transport of hazardous waste to a facility which does not have a current and valid permit as required by law....

...ame statute under consideration in Hamilton , and it does contain the required allegation of actual harm, 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....

WHATLEY, Judge. The State appeals the order dismissing the charges against the appellees for improper disposal of hazardous waste in violation of section 403.727(3)(b), Florida Statutes (1999). The charges were dismissed based on the trial court’s finding that section 403.727(3)(b) made a crime out of ordinary negligence. The order dismissing the charges states that section 403.727(3)(b) is unconstitutionally vague....

...which does not have a permit when such a permit is required, or did dispose of a hazardous waste at a place not a hazardous waste facility with a current and valid permit issued pursuant to Florida Statute 403.722, in violation of Florida Statute(s) 403.727(3)(b)(l)(2)a [sic]; 777.011....

...were employees of the water management facility in Collier County. They were directed by their superiors to dilute a sulfuric acid spill on the grounds of the facility and transfer it to a retention pond that was also on the grounds of the facility. Section 403.727(3)(b), Florida Statutes (1999), provides in pertinent part as follows: Any person who knowingly or by exhibiting reckless indifference or gross careless disregard for human health: 1....

...Disposes of, treats, or stores hazardous waste: a. At any place but a hazardous waste facility which has a current and valid permit pursuant to s. 403.722.... is, upon conviction, guilty of a felony of the third degree.... The State contends that the trial court erred in finding section 403.727(3)(b) unconstitutional because the statute proscribes culpably negligent conduct using the terms “by exhibiting reckless indifference or gross careless disregard” and those terms have long been understood in Florida to define culpable negligence....

...The appellees concede this fact, and they acknowledge that the Florida Supreme Court has held that “culpable negligence” is not void for vagueness. See State v. Joyce, 361 So.2d 406, 407 (Fla.1978). However, the appellees argue that for several other reasons, the language of section 403.727(3)(b) is so unclear and ambiguous that persons of reasonable intelligence must guess at what conduct is prohibited....

...First, the appellees argue that the confusing nature of the statute is evidenced by the State’s incorrect citation of it in the informations filed against them. As the appellees acknowledge, however, the State merely failed to insert an ampersand between subsections (1) and (2) when it cited “403.727(3)(b)(l)(2)a” as the statute the ap-pellees were charged with violating. The State’s mistake in citing a statute in an information does not mean that the statute is confusing, nor does it reveal any constitutional infirmity with the statute. Second, the appellees argue that subsection 403.727(3)(b)(2) contains two inconsistent “intent requirements” that prevent a person of ordinary intelligence from understanding what conduct is prohibited. Specifically, the appellees assert that while the prohibited activities in section 403.727(3)(b) are qualified by the requirement that the person was acting “knowingly or by exhibiting reckless indifference or gross careless disregard for human health,” two of the prohibited activities listed under subsection 403.727(3)(b)(2) contain the additional requirement that the “violation has a substantial likelihood of endangering human health, animal or plant life, or property.” § 403.727(3)(b)(2)(b)(c)....

...he appellees have in effect admitted that the statute does not criminalize ordinary negligence because it requires culpable negligence. The appellees further admit that culpable negligence is required by the subsections with which they were charged, 403.727(3)(b)(l) and (2)(a)....

...3 Whether the acid spilled in this case is a liquid that is encompassed by the definition of hazardous waste is an issue to be addressed at trial; it is not an issue that goes to the constitutionality of the statute. Fourth, the appellees contend that the statute is vague because of an alleged inconsistency between section 403.727(3)(b), which contains the qualifier of “reckless indifference or gross careless disregard for human health,” and the definition of *594 hazardous waste, which contains the qualifier of being a “hazard to human health or the environment.” § 403.703(21). The ap-pellees argue that because of this alleged inconsistency, a person could be convicted of violating section 403.727(3)(b) if the only threat posed by the hazardous waste was to the environment....

...hypothetical conduct of others.”). Whether the appellees acted “knowingly or by exhibiting reckless indifference or gross careless disregard for human health” is a factual determination to be made at trial. We hold that the trial court erred in declaring section 403.727(3)(b) unconstitutional and in dismissing the charges against the appellees because the appellees have not overcome the strong, presumption of constitutionality accorded section 403.727(3)(b)....

...See Barnes, 686 So.2d 633 (The law affords legislative acts a strong presumption of constitutionality.). Accordingly, we reverse and remand with directions to reinstate the charges. Reversed and remanded. FULMER, A.C.J., and STRINGER, J., Concur. . We note that in their motion to dismiss, the appellees also argued that section 403.727(3)(b), Florida Statutes (1999), was unconstitutionally overbroad....

..." 'The over-breadth doctrine applies only if the legislation " ‘is susceptible of application to conduct protected by the First Amendment.’ ” ’ ” Southeastern Fisheries v. Dep't of Natural Res., 453 So.2d 1351, 1353 (Fla.1984) (quoting Carnearte v. State, 384 So.2d 1261 , 1262 (Fla.1980)). Section 403.727(3)(b) does not invoke First Amendment interests....