House Bill hb0841

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    Florida House of Representatives - 2001                 HB 841

        By Representative Ritter






  1                      A bill to be entitled

  2         An act relating to Broward County; amending

  3         chapter 91-355, Laws of Florida, the Broward

  4         County Natural Resource Protection Act;

  5         clarifying legislative intent to include

  6         authority of Board to issue notices to assess a

  7         civil penalty for violations of the act;

  8         amending provisions relating to enforcement and

  9         civil penalties; authorizing the Board of

10         County Commissioners of Broward County to

11         prescribe procedures for the issuance of

12         notices of hearing to assess a civil penalty

13         for violation of ordinances protecting the

14         natural resources of Broward County;

15         identifying certain violations; providing

16         factors to be considered in assessing civil

17         penalties; providing for recovery of costs and

18         attorney's fees; amending provisions relating

19         to issuance of citations; authorizing natural

20         resource enforcement officers to collect civil

21         penalties as prescribed in the code by the

22         Board of County Commissioners; prohibiting the

23         issuance of a citation under certain

24         circumstances; providing for recovery of costs

25         and attorney's fees; amending provisions

26         relating to liens; providing that orders

27         imposing certain costs or requiring corrective

28         actions or mitigation may be recorded by

29         Broward County; providing an effective date.

30

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

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  1         Section 1.  Section 2 of chapter 91-355, Laws of

  2  Florida, is amended to read:

  3         Section 2.  Declaration of legislative intent.--The

  4  Legislature finds and declares that the penalty authority of

  5  the Board of County Commissioners of Broward County pursuant

  6  to chapter 125, Florida Statutes, may be inadequate for the

  7  enforcement of county ordinances and regulations the purpose

  8  of which is the protection of the natural resources of the

  9  county. It is the intent and purpose of this act to clarify

10  the authority of the board to impose and recover civil

11  penalties and damages, and to issue citations and notices of

12  hearing to assess a civil penalty for violations of the

13  Natural Resource Protection Code. These powers are necessary

14  in order to effectively enforce standards that will ensure the

15  protection, enhancement, and restoration of the air, water,

16  soil, natural resources, archaeological resources, and animal

17  and plant life of the county.

18         Section 2.  Section 4 of chapter 91-355, Laws of

19  Florida, is amended to read:

20         Section 4.  Enforcement; issuance of notice of hearing

21  to assess a civil penalty civil penalties.--

22         (1)  The board may enforce the code and may establish

23  procedures for implementation of the code, including the

24  issuance of citations or notices of hearing to assess a civil

25  penalty for one or more violations of the code, and a schedule

26  of violations, and civil penalties, and to establish liability

27  and recover damages for pollution, degradation, or alteration

28  to, or elimination of, the air, water, soil, natural

29  resources, archeological resources, or animal or plant life of

30  the county. The maximum civil penalty that may be levied

31  pursuant to the issuance of a citation is $500.

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  1         (2)  Based upon standards set forth in the code, a

  2  natural resource enforcement officer shall issue a notice of

  3  hearing to assess a civil penalty instead of issuing a

  4  citation if there are he has reasonable grounds to believe

  5  that a violation of the code occurred. It shall be a violation

  6  of the code, for which a notice of hearing to assess a civil

  7  penalty shall be issued, for any person:

  8         (a)  To cause the violation causes substantial

  9  pollution or degradation to the air, water, soil, natural

10  resources, archaeological resources, or animal or plant life

11  of the county;

12         (b)  To cause pollution which may potentially harm or

13  injure human health or welfare, animal, plant, or aquatic

14  life, or property;

15         (c)  To fail to obtain any license or permit required

16  by the code or by rule or regulation;

17         (d)  To violate or fail to comply with any rule,

18  regulation, order, license, permit, or certification adopted

19  or issued by the board pursuant to its lawful authority;

20         (e)  To knowingly make any false statement,

21  representation, or certification in any application, record,

22  report, plan, or other document filed or required to be

23  maintained under the code; or

24         (f)  To falsify, tamper with, or knowingly render

25  inaccurate any monitoring device or method required to be

26  maintained under the code or by any license, permit, rule,

27  regulation, or order issued under the code.

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29  The board may prescribe other acts, offenses, or practices

30  which shall constitute violations of the code in addition to

31  those identified in this subsection.

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  1         (3)  Depending upon the evidence presented at the

  2  hearing and the seriousness of the violation, the hearing

  3  examiner may assess a civil penalty in an amount that may not

  4  exceed $15,000 for each violation. Each day during any portion

  5  of which a violation occurs constitutes a separate violation.

  6  In determining the civil penalty to be assessed against a

  7  violator, the hearing examiner shall consider the following

  8  factors:

  9         (a)  The extent of environmental damage and potential

10  future environmental harm;

11         (b)  The extent of any damage or risk of potential harm

12  or injury to human health or welfare, animal, plant, or

13  aquatic life, or property;

14         (c)  The violator's cooperation in taking remedial

15  action to correct the violation and any environmental damage

16  and/or to perform other mitigation prior to hearing;

17         (d)  The extent of deviation from the requirements of

18  the code;

19         (e)  The violator's history of noncompliance;

20         (f)  Whether the violator knew or should have known

21  that it was not complying with the code; and

22         (g)  Such other issues as may be relevant to the

23  determination of an appropriate civil penalty, recovery of

24  damages by the county, including administrative and legal

25  costs, and attorney's fees.

26

27  In any case brought pursuant to a notice of hearing issued

28  under this section or the code, the hearing officer shall

29  include an award of the reasonable administrative costs

30  incurred in the investigation and prosecution of the

31  violation. The hearing officer, after weighing the factors in

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  1  paragraphs (c)-(g), may also include in the order an award of

  2  reasonable attorney's fees.

  3         (4)(3)  The county may designate certain of its

  4  employees as natural resource enforcement officers. The

  5  training and qualifications for that designation shall be

  6  determined by the county. Designation as a natural resource

  7  enforcement officer does not provide the natural resource

  8  enforcement officer with the power of arrest or subject the

  9  natural resource enforcement officer to the provisions of

10  sections 943.085-943.255, Florida Statutes.

11         Section 3.  Subsections (1) and (4) of section 5 of

12  chapter 91-355, Laws of Florida, are amended, and subsection

13  (5) is added to said section, to read:

14         Section 5.  Enforcement; issuance and amount of

15  citations.--

16         (1)  A natural resource enforcement officer designated

17  by the county may issue a citation in accordance with the

18  schedule of violations for which the issuance of a citation is

19  appropriate and collect civil penalties as set forth in the

20  code, if, based upon personal investigation, the natural

21  resource enforcement officer has reasonable and probable

22  grounds to believe that a violation has occurred.

23         (4)  Before issuing a citation, a natural resource

24  enforcement officer must provide notice, to the person, that

25  the person has committed a violation of the code and must

26  establish a reasonable time period within which the person

27  must correct the violation. If, upon personal investigation, a

28  natural resource enforcement officer finds that the person has

29  not corrected the violation within the specified time period,

30  the natural resource enforcement officer may issue a citation

31  to the person who committed the violation. A natural resource

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  1  enforcement officer need not provide the person with a

  2  reasonable time within which to correct the violation before

  3  issuing the citation, and may immediately issue the citation,

  4  if the natural resource enforcement officer has reason to

  5  believe that the violation presents a serious threat to the

  6  public health, safety, or welfare or if the violation is

  7  irreparable or irreversible, or a prior warning has been

  8  issued. A natural resource enforcement officer shall not issue

  9  a citation for any violation for which the issuance of a

10  notice of hearing to assess a civil penalty is more

11  appropriate, or is required by this act or the code.

12         (5)  The maximum civil penalty that may be levied

13  pursuant to the issuance of a citation is $500 for each

14  violation. Each day during any portion of which a violation

15  occurs constitutes a separate violation. In any case in which

16  a hearing is requested to contest the issuance of a citation

17  under the code and the hearing officer determines the person

18  cited violated the code, the hearing officer shall include an

19  award of the reasonable administrative costs incurred in the

20  investigation and prosecution of the violation. The hearing

21  officer, after weighing the factors in paragraphs (c)-(g) of

22  section 4(3), may also include in the order an award of

23  reasonable attorney's fees.

24         Section 4.  Section 8 of chapter 91-355, Laws of

25  Florida, is amended to read:

26         Section 8.  Liens.--A certified copy of an order

27  imposing a civil penalty, administrative costs, legal costs,

28  including reasonable attorney's fees, or any required

29  corrective actions or mitigation may be recorded by the county

30  in the public records and thereafter constitutes a lien

31  against the real and personal property of the violator. The

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  1  order may be enforced in the same manner as a court judgment

  2  by the sheriffs of this state, including levy against the

  3  personal property of the violator, but is not a court judgment

  4  except for enforcement purposes. Three months after the filing

  5  of a lien which remains unpaid, the county may foreclose or

  6  otherwise execute on the lien.

  7         Section 5.  This act shall take effect upon becoming a

  8  law, provided that the amendments to chapter 91-355, Laws of

  9  Florida, shall apply only to those citations or notices of

10  hearing to assess a civil penalty issued after the effective

11  date of this act.

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