The Florida Senate

403.860  Penalties and remedies.--

(1)  A fine, not to exceed $5,000 for each day in which a violation occurs, may be imposed by a court of competent jurisdiction on any person who violates s. 403.859(1), (2), (4), (5), or (6).

(2)  A fine, not to exceed $5,000 for each day in which such violation occurs or failure to comply continues, may be imposed by a court of competent jurisdiction upon any person who violates, or fails or refuses to comply with, any order issued by the department pursuant to this act.

(3)  The department may initiate an administrative proceeding to establish liability and require corrective action. Such proceeding shall be instituted by the department's serving a written notice of violation upon the alleged violator by certified mail. The notice shall specify the provision of law or rule of the department alleged to have been 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. A department order, entered after a hearing pursuant to chapter 120 or a waiver thereof, shall be final and constitute a final adjudication of the matters alleged. Such order may require, in addition to corrective action, that the violator pay the state for its reasonable costs and expenses incurred in investigating the violation and prosecuting the administrative proceeding.

(4)  The department or a county health department that has been approved by the department under s. 403.862(1)(c) may institute a civil action in any court of appropriate jurisdiction for injunctive relief to prevent violation of any order, rule, or regulation issued pursuant to this act, in addition to any other remedies provided under this section.

(5)  In addition to any judicial or administrative remedy authorized by this part, the department or a county health department that has received approval by the department pursuant to s. 403.862(1)(c) may assess a noncompliance fee for failure of any supplier of water of a public water system to comply with department requirements for the reporting, in the manner and time provided by department rule, of test results for microbiological, inorganic, or organic contaminants; or turbidity, radionucleides, or secondary standards.

(a)  For the first and second violations of the microbiological reporting requirements, and for the first violation of other reporting requirements, the fee shall not be assessed until the department has given the supplier at least 30 days to comply with the reporting requirement. The time shall not begin until the department has given the supplier 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 supplier's failure to comply with the notice. For subsequent violations of the microbiological reporting requirements, the department does not have to provide 30-day written notice of the violations prior to assessing a noncompliance fee, provided, however, that if any additional reporting violations occur prior to the expiration of either 30-day notice issued by the department, the department must provide the supplier with a 30-day written notice to correct those violations as well. Upon expiration of 36 months, the department shall reinstate the 30-day notice requirements provided in this subsection prior to assessing a noncompliance fee.

(b)  At the time of assessment of a noncompliance fee, the department shall give the supplier 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.

(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 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 supplier to comply with the reporting requirements, the lack of or degree of willfulness or negligence on the part of the supplier, the economic benefits associated with the supplier's failure to comply with the reporting violation, the supplier's previous history of reporting violations, and the supplier's ability to pay the noncompliance fee.

(d)  For microbiological reporting requirements, 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.

(e)  For violations of reporting requirements other than microbiological, the fee shall be no greater than $50 per day for each day of violation, and the total amount assessed shall not exceed $2,000.

(f)  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.

(g)  No noncompliance fee may be assessed unless the department has, within 90 days of the reporting violation, provided the supplier written notice of the violation.

(6)  The department is authorized to assess administrative penalties for failure to comply with the requirements of the Florida Safe Drinking Water Act.

(a)  Prior to the assessment of an administrative penalty, the department shall provide the public water system a reasonable amount of time to complete the corrective action necessary to bring the system back into compliance.

(b)1.  At the time of assessment of the administrative penalty, the department shall give the public water system 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 hearing is requested within 20 days after receipt of the written notice, and shall be enforceable pursuant to s. 120.69.

2.  The department shall adopt rules to implement the provisions of this subsection. The rules shall establish specific procedures for implementing the penalties and shall identify assessment amounts. The rules shall authorize the application of adjustment factors for the purpose of increasing or decreasing the total amount assessed subsequent to initial assessment. Such factors may include the lack or degree of good faith to comply with the requirements, the lack or degree of willfulness or negligence on the part of the owner, the compliance history of the public water system, the economic benefit derived by the failure to comply with the requirements, and the ability to pay.

(c)  The amount of the penalties assessed shall be as follows:

1.  In the case of a public water system serving a population of more than 10,000, the penalty shall be not less than $1,000 per day per violation.

2.  In the case of any other public water system, the penalty shall be adequate to ensure compliance.

However, the total amount of the penalty assessed on any public water system may not exceed $10,000 per violation.

(7)  Fees collected pursuant to this section shall be deposited in the Water Quality Assurance Trust Fund or the appropriate County Health Department Trust Fund, in accordance with s. 381.0063, to be used to carry out the provisions of this part. The department may use a portion of the fund to contract for services to help collect noncompliance fees assessed pursuant to this section.

History.--s. 11, ch. 77-337; s. 71, ch. 90-331; s. 2, ch. 93-50; s. 3, ch. 93-264; s. 104, ch. 97-101; s. 3, ch. 97-236.