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A bill to be entitled

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An act relating to water restrictions; amending s.

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373.246, F.S.; authorizing the governing board of a water

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management district or the Department of Environmental

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Protection to issue an order establishing liability,

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requiring corrective action, or imposing an administrative

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penalty against a person who violates a declaration of

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water shortage; providing that a court may enter a

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judgment based on such order; requiring the governing

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board or the department to issue a notice of noncompliance

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before taking action against a violator, except if such

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violator has a history of noncompliance; requiring the

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governing board or the department to send a written notice

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of violation to the violator by certified mail; requiring

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that such notice contain certain information; providing

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that an order is not effective until the violator has been

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served notice and an administrative hearing is held;

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requiring the violator to file a petition in response to

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the order and request a hearing within a specified time or

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waive the right to such hearing; providing that such

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violator is the respondent for hearing purposes; requiring

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the governing board or the department to refer a timely

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filed petition to the Division of Administrative Hearings;

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requiring the hearing to be held in the same county in

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which the violation occurred; providing that the governing

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board or the department has the burden of proving by a

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preponderance of the evidence that the respondent is

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responsible for the violation; requiring the

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administrative law judge to conduct the hearing using the

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summary hearing process; requiring the administrative law

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judge to issue a final order; providing for the prevailing

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party to recover all costs, including attorney's fees;

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providing that the governing board or the department may

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pursue injunctive relief in addition to any other

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administrative action; providing a schedule of

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administrative penalties; requiring the administrative law

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judge to add the direct economic benefit that the violator

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gained to the penalty; providing that evidence of

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mitigating circumstances may reduce a penalty; providing

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an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Subsections (9) and (10) are added to section

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373.246, Florida Statutes, to read:

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     373.246  Declaration of water shortage or emergency.--

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(9)(a) The governing board or the department may issue an

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order that establishes liability, requires corrective action, or

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imposes an administrative penalty against any person who violates

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the restrictions established by a declaration of water shortage.

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Any court having jurisdiction may enter a judgment based on the

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governing board's or the department's order and such judgment has

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the same force and effect as any other judgment.

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(b) The governing board or the department shall issue a

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notice of noncompliance as set forth in s. 120.695 before taking

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administrative action against an alleged violator. However, if

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the person has a history of noncompliance as described in

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paragraph (10)(f), such notice is not required before taking

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administrative action.

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(c) The governing board or the department shall send a

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written notice of violation to the alleged violator by certified

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mail. If the governing board or the department is unable to serve

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the notice of violation by certified mail, the notice may be hand

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delivered or personally served in accordance with chapter 48.

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Such notice must specify the provision of the law, rule, or order

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which has allegedly been violated and the facts constituting the

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alleged violation. The notice may include any corrective action

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required to address the violation, including payment of an

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administrative penalty and any other corrective action ordered by

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the governing board or the department. An order is not effective

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until after the alleged violator has been served and an

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administrative hearing is held.

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(d) The alleged violator must file a petition in response

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to the order and request an administrative hearing within 14 days

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after the notice is served. Failure to request an administrative

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hearing within 14 days after service constitutes a waiver of the

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right to such hearing. If an alleged violator timely files a

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petition, such violator shall subsequently be referred to as the

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respondent. The governing board or the department shall refer the

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petition to the Division of Administrative Hearings. The hearing

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must be held in the county in which the violation allegedly

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occurred. Such hearings should be addressed in an expeditious and

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effective manner and scheduled accordingly. The governing board

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or the department must prove by a preponderance of the evidence

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that the respondent is responsible for the violation. A hearing

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shall proceed in accordance with the summary hearing process as

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set forth in s. 120.574(2). The administrative law judge shall

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issue a final order on all matters and impose an administrative

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penalty.

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(e) The prevailing party shall recover all costs, including

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investigative costs and reasonable attorney's fees in an

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administrative proceeding brought under this section. The

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administrative law judge shall include such costs and fees in the

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final order. The respondent is the prevailing party if an

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administrative law judge enters an order finding that the notice

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of violation did not have a reasonable basis in law and fact at

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the time the proceeding was initiated.

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(f) The governing board or the department is not prohibited

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from taking any other legal or administrative action in

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accordance with law. This subsection does not limit the governing

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board's or the department's authority to judicially pursue

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injunctive relief. The governing board and the department may

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judicially pursue penalties in excess of the administrative

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penalty schedule set forth in subsection (10). The governing

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board or the department may enter into a settlement, before or

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after initiating a notice of violation, and the settlement may

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include a penalty amount different from the administrative

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penalty schedule set forth in subsection (10).

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(10)(a) For a violation involving the use of water on 10

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acres or less or the use of less than 100,000 gallons of water

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per day, the penalty is $500 per offense, per day, and $2,000 per

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offense, per day, for a violator that has a history of

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noncompliance.

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(b) For a violation involving the use of water on 10 to 100

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acres or the use of 100,000 to 500,000 gallons of water per day,

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the penalty is $1,000 per offense, per day, and $5,000 per

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offense, per day, for a violator that has a history of

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noncompliance.

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(c) For a violation involving the use of water on more than

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100 acres or the use of more than 500,000 gallons of water per

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day, the penalty is $3,000 per offense, per day, and $10,000 per

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offense, per day, for a violator that has a history of

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noncompliance.

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(d) For a golf course that fails to submit timely reports,

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the penalty is $300 per offense and $1,000 per offense for a

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violator that has a history of noncompliance.

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(e) For a golf course that fails to meet monthly targeted

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reductions, the penalty is $500 per offense for meeting 75

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percent to 90 percent of the monthly targeted reduction; $1,500

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per offense for meeting 25 percent to 75 percent of monthly

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targeted reduction; and $3,500 per offense for meeting 0 percent

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to 25 percent of monthly targeted reduction. The penalty is

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doubled for a violator that has a history of noncompliance.

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(f) A violator that has a history of noncompliance is any

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person who has been found by final order to have violated a

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declaration of water shortage within 2 years after the most

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recent violation.

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(g) An administrative law judge shall add the direct

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economic benefit gained by a violator from a violation to the

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scheduled administrative penalty.

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(h) An administrative law judge may receive evidence in

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mitigation and may reduce the penalties identified in this

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subsection up to 50 percent for mitigating circumstances,

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including good faith efforts to comply before or after discovery

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of the violation. The administrative law judge may reduce the

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penalty further upon an affirmative finding that the violation

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was caused by circumstances beyond the control of the respondent

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and could not have been prevented by the respondent's due

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diligence.

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     Section 2.  This act shall take effect July 1, 2008.