The Florida Senate

403.121  Enforcement; procedure; remedies.--The department shall have the following judicial and administrative remedies available to it for violations of this chapter, as specified in s. 403.161(1).

(1)  Judicial remedies:

(a)  The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by any violation.

(b)  The department 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)  It shall not be a defense to, or ground for dismissal of, these judicial remedies for damages and civil penalties that the department has failed to exhaust its administrative remedies, has failed to serve a notice of violation, or has failed to hold an administrative hearing prior to the institution of a civil action.

(2)  Administrative remedies:

(a)  The department may institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, or aquatic life, of the state caused by any violation. The department may order that the violator pay a specified sum as damages to the state. Judgment for the amount of damages determined by the department may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.

(b)  If the department has reason to believe 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.

(c)  An administrative proceeding shall be instituted by the department's serving of a written notice of violation upon the alleged violator by certified mail. The notice shall specify the provision of the law, rule, regulation, permit, certification, or order of the department alleged to be violated and the facts alleged to constitute a violation thereof. An order for corrective action may be included with the notice. However, no order shall become effective until after service and an administrative hearing, if requested within 20 days after service. Failure to request an administrative hearing within this time period shall constitute a waiver thereof.

(d)  Nothing herein shall be construed as preventing any other legal or administrative action in accordance with law.

(3)(a)  In addition to any judicial or administrative remedy authorized by this part, the department may assess a noncompliance fee for failure of any owner or operator of a domestic wastewater treatment facility to comply with a permit condition that requires the submittal of monthly operating reports or the reporting of the characteristics of the waste stream or the effects of the facility on surface or ground water. For the first and second violations of the reporting requirements, the fee shall not be assessed until the department has given the owner or operator at least 30 days to comply with the reporting requirement. The time shall not begin until the department has given the owner or operator written notice of the facts alleged to constitute the reporting violation, the specific provision of law, rule, or order alleged to have been violated by the owner or operator, the corrective action needed to bring the facility into compliance, and the potential penalties that may be imposed as a result of the owner's or operator's failure to comply with the notice. For subsequent violations, the department does not have to provide 30 days' written notice of the violations prior to assessing a noncompliance fee, except as follows:

1.  If any additional reporting violations occur prior to the expiration of either of the 30-day notices issued by the department, the department must provide the owner or operator with 30 days' written notice to correct these violations as well.

2.  Upon the renewal of the permit, the department shall reinstate the 30-day notice requirements provided in this subsection prior to assessing a noncompliance fee during the new permit period.

(b)  At the time of assessment of a noncompliance fee, the department shall give the owner or operator written notice setting forth the amount assessed, the specific provision of law, rule, or order alleged to be violated, the facts alleged to constitute the violation, the corrective action needed to bring the party into compliance, and the rights available under chapter 120 to challenge the assessment. The assessment shall be final and effective unless an administrative proceeding is requested within 20 days after receipt of the written notice, and shall be enforceable pursuant to s. 120.69. Once the assessment has become final and effective, the department may refuse to issue, modify, transfer, or renew a permit to the facility until the fee has been paid.

(c)  Before assessing a noncompliance fee, the department shall adopt rules to implement the provisions of this subsection. The rules shall establish specific procedures and assessment amounts for noncompliance fees authorized by paragraph (a). Noncompliance fees shall be set on a sliding scale based upon the type of violation, the degree of noncompliance, and the potential for harm. Such rules shall also authorize the application of adjustment factors subsequent to the initial assessment to increase or decrease the total amount assessed, such as the good faith efforts or the lack of good faith efforts of the owner or operator to comply with the reporting requirement, the lack of or degree of willfulness or negligence on the part of the owner or operator, the economic benefits associated with the owner's or operator's failure to comply, the owner's or operator's previous history of reporting violations, and the owner's or operator's ability to pay the noncompliance fee. No noncompliance fee shall exceed $250, and total noncompliance fees assessed shall not exceed $1,000 per assessment for all reporting violations attributable to a specific facility during any one month. No noncompliance fee may be assessed unless the department has, within 90 days of the reporting violation, provided the owner or operator written notice of the violation.

(d)  The department's assessment of a noncompliance fee shall be in lieu of any civil action which may be instituted by the department in a court of competent jurisdiction to impose and recover civil penalties for any violation that resulted in the fee assessment, unless the department initiates a civil action for nonpayment of a fee properly assessed pursuant to this subsection.

(e)  Fees collected pursuant to this subsection shall be deposited in the Ecosystem Management and Restoration Trust Fund. The department may use a portion of the fund to contract for services to help in the collection of the fees assessed pursuant to this subsection.

History.--s. 13, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 70-114; s. 1, ch. 70-139; s. 349; ch. 71-136; s. 112, ch. 71-355; s. 1, ch. 72-286; s. 138, ch. 77-104; s. 1, ch. 77-117; s. 14, ch. 78-95; s. 263, ch. 81-259; s. 3, ch. 90-82; s. 61, ch. 96-321.