Opinion
No. 5D11–2329.
2012-10-26
RLI LIVE OAK, LLC, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
Appeal from the Circuit Court for Osceola County, Margaret T. Waller, Judge. Kenneth G. Oertel and M. Christopher Bryant of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, for Appellant. Jack Chisolm, Deputy General Counsel, And Teresa L. Mussetto, Chief Appellate Counsel, Florida Department of Environmental Protection, Tallahassee, Amicus Curiae, for Florida Department of Environmental Protection.
Appeal from the Circuit Court for Osceola County, Margaret T. Waller, Judge.
Kenneth G. Oertel and M. Christopher Bryant of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, for Appellant. Jack Chisolm, Deputy General Counsel, And Teresa L. Mussetto, Chief Appellate Counsel, Florida Department of Environmental Protection, Tallahassee, Amicus Curiae, for Florida Department of Environmental Protection.
Carolyn S. Ansay, General Counsel, Ruth A. Holmes and Alison L. Kelly, West Palm Beach, for Appellee.
JACOBUS, J.
RLI Live Oak, LLC (“RLI”), land developers who own property in Osceola County, filed suit in circuit court seeking a declaratory judgment for a determination that the property it owned did not contain any wetlands and, therefore, was not under the jurisdiction of the South Florida Water Management District (“the District”). The District counterclaimed against RLI alleging that RLI participated in unauthorized dredging, construction activity, grading, diking, culvert installation, and filling of wetlands without first obtaining the District's approval. After a non-jury trial, the court found for the District on all counts and awarded the District $81,900 in civil penalties.
The trial court based its findings on a preponderance of the evidence standard and not the clear and convincing evidence standard. This was error. In Department of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So.2d 932 (Fla.1996), the Florida Supreme Court held that when a court is asked to impose civil fines against a party, it is necessary for the moving party to prove the alleged violations by clear and convincing evidence. As a result of the court's applying the improper evidentiary standard, we reverse the portion of the judgment imposing civil penalties and remand for further proceedings. On remand, before the trial court may impose civil fines on RLI, the District must prove RLI's alleged violations by clear and convincing evidence.
REVERSED and REMANDED. PALMER and LAWSON, JJ., concur.
ON MOTION FOR REHEARING, REHEARING EN BANC, OR CERTIFICATION
PER CURIAM.
For the reasons argued by the South Florida Water Management District, we agree that this case presents an issue of great public importance that should be addressed by the Florida Supreme Court, and certify the following question in accordance with Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):
UNDER THE HOLDING OF DEPARTMENT OF BANKING & FINANCE V. OSBORNE STERN & CO., 670 So.2d 932 (Fla.1996), IS A STATE GOVERNMENTAL AGENCY WHICH BRINGS A CIVIL ACTION IN CIRCUIT COURT REQUIRED TO PROVE THE ALLEGED REGULATORY VIOLATION BY CLEAR AND CONVINCING EVIDENCE BEFORE THE COURT MAY ASSESS MONETARY PENALTIES?
MOTION FOR CERTIFICATION GRANTED; QUESTION CERTIFIED; MOTION FOR REHEARING, REHEARING EN BANC DENIED.