2012 Florida Statutes
Enforcement; procedure; remedies.
Enforcement; procedure; remedies.
379.502 Enforcement; procedure; remedies.—The commission has the following judicial and administrative remedies available to it for violations of s. 379.501:
(1)(a) The commission may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the waters or property of the state, including animal, plant, and aquatic life, caused by any violation of s. 379.501.
(b) The commission 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 $10,000 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), the fact that the commission has failed to exhaust its administrative remedies, has failed to serve a notice of violation, or has failed to hold an administrative hearing before initiating a civil action is not a defense to, or grounds for dismissal of, the judicial remedies for damages and civil penalties.
(2)(a) The commission may institute an administrative proceeding to establish liability and to recover damages for any injury to the waters or property of the state, including animal, plant, or aquatic life, caused by any violation of s. 379.501. The commission may order that the violator pay a specified sum as damages to the state. Judgment for the amount of damages determined by the commission may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.
(b) If the commission has reason to believe that 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. The commission shall proceed administratively in all cases in which the commission seeks administrative penalties that do not exceed $10,000 per assessment as calculated in accordance with subsections (3), (4), (5), and (6). The commission may not impose administrative penalties in excess of $10,000 in a notice of violation. The commission 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 commission subsequent to the filing of a previous notice of violation.
(c) An administrative proceeding shall be instituted by the commission’s serving of a written notice of violation upon the alleged violator by certified mail. If the commission 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 provision of the law, rule, regulation, permit, certification, or order of the commission alleged to have been violated and the facts alleged to constitute a violation thereof. An order for corrective action, penalty assessment, or damages may be included along with the notice. If the commission is seeking to impose an administrative penalty for any violation of s. 379.501 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 does not become effective until after service and an administrative hearing, if requested within 20 days after service. Failure to request an administrative hearing within this period constitutes a waiver, unless the respondent files a written notice with the commission within this period opting out of the administrative process initiated by the commission. Any respondent choosing to opt out of the administrative process initiated by the commission must file a written notice with the commission, 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 commission 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 commission has referred the initial petition to the Division of Administrative Hearings unless the parties agree to a later date. The commission has the burden of proving by the preponderance of the evidence that the respondent is responsible for the violation. An administrative penalty may not be imposed unless the commission 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. If the commission 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 commission 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, 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 the respondent with 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 after 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 commission, 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 commission and the 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’s fees if the administrative law judge determines that the notice of violation issued by the commission was not substantially justified as defined in s. 57.111(3)(e). An award of attorney’s 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. This subsection does not limit the commission’s authority set forth in this section and ss. 379.503 and 379.504 to judicially pursue injunctive relief. If the commission exercises its authority to judicially pursue injunctive relief, penalties in any amount up to the statutory maximum sought by the commission must be pursued as part of the state court action and not by initiating a separate administrative proceeding. The commission retains the authority to judicially pursue penalties in excess of $10,000 for violations not specifically included in the administrative penalty schedule, or for multiple or multiday violations alleged to exceed a total of $10,000. The commission also retains the authority provided in this section and ss. 379.503 and 379.504 to judicially pursue injunctive relief and damages, if a notice of violation seeking the imposition of administrative penalties has not been issued. The commission may enter into a settlement before or after initiating a notice of violation, and the settlement may include a penalty amount that is different from the administrative penalty schedule. Any case filed in state court because it is alleged to exceed a total of $10,000 in penalties may be settled in the court action for less than $10,000.
(h) The provisions of chapter 120 shall apply to any administrative action taken by the commission under this section or any delegated program pursuing administrative penalties in accordance with this section.
(3) Administrative penalties must be calculated according to the following schedule:
(a) For violations of s. 379.501(1)(a) or (b), $3,000.
(b) For failure to conduct required monitoring or testing in compliance with a permit, $2,000.
(c) For failure to prepare, submit, maintain, or use required reports or other required documentation, $500.
(4) For each additional day during which a violation occurs, the administrative penalties in subsection (3) may be assessed per day, per violation.
(5) 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 on or after July 1, 2009, involving the imposition of $2,000 or more in penalties, shall be taken into consideration in the following manner:
(a) One previous such violation within 5 years prior to the filing of the notice of violation shall result in a 25-percent per day increase in the scheduled administrative penalty.
(b) Two previous such violations within 5 years prior to the filing of the notice of violation shall 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 shall result in a 100-percent per day increase in the scheduled administrative penalty.
(6) The direct economic benefit gained by the violator from the violation shall be added to the scheduled administrative penalty. The total administrative penalty, including any economic benefit added to the scheduled administrative penalty, may not exceed $10,000.
(7) The administrative penalties assessed for any particular violation may not exceed $3,000 against any one violator unless the violator has a history of noncompliance, the economic benefit of the violation as described in subsection (6) exceeds $3,000, or there are multiday violations. The total administrative penalties may not exceed $10,000 per assessment for all violations attributable to a specific person in the notice of violation.
(8) The administrative law judge may receive evidence in mitigation. The penalties identified in subsection (3) may be reduced up to 50 percent by the administrative law judge for mitigating circumstances, including good faith efforts to comply prior to or after discovery of the violations by the commission. 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 the respondent’s due diligence, the administrative law judge may further reduce the penalty.
(9) Penalties collected under this section shall be deposited into the Invasive Plant Control Trust Fund to carry out the purposes set forth in ss. 369.20, 369.22, and 369.252. 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 related to s. 369.20 or s. 369.22.
(10) 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) through (7) do not limit 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.
History.—s. 44, ch. 2009-86.