THE STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, APPELLANT,
v.
JAMES M. BROWN, APPELLEE
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The Florida Department of Environmental Regulation appealed a circuit court's decision to reject an administrative agency's restoration order and impose a monetary penalty instead for environmental violations involving unpermitted fill over a roadway that damaged mangrove wetlands. The court held that in Section 120.69(5) enforcement proceedings, trial courts may find agency actions inappropriate even when within the agency's discretion, and may substitute alternative remedies supported by competent and substantial evidence.
In a Section 120.69(5) enforcement proceeding, a trial court may find that an agency action, even though within the agency's delegated discretion, is not "appropriate" for the particular circumstances, and may substitute an alternative remedy such as a monetary penalty supported by competent and substantial evidence.
[1] A circuit court, in an enforcement proceeding under Section 120.69(5), Florida Statutes, may determine that an agency action, even if within the agency's delegated discre…
[2] The circuit court's determination that an agency's restoration order was inappropriate, based on the specific facts of the case, is entitled to deference on appeal if sup…
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Join FLexlaw to unlock all legal intelligence“In a Section 120.69(5) enforcement proceeding the court may find, as it did here, that an agency action, even though within the range of discretion delegated to the agency, is not "appropriate", i.e. not suitable for the particular person, condition, occasion, or place.”
Establishes the core holding that trial courts have broader review authority in enforcement proceedings than in judicial review proceedings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJames M. Brown placed fill over a roadway without a permit, cutting off tidal exchange and causing damage to mangrove wetlands. After an administrativ…
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PER CURIAM.
Appellee Brown was found in violation of environmental control statutes, Chapter 403, Florida Statutes (1983), for having placed fill over a roadway without a permit, which cut off the tidal exchange causing damage to mangrove wetlands. After an administrative hearing Brown was ordered to restore the land to its original condition and to pay costs of $604.79. Because Brown failed to comply within the time provided in the enforcement order, the Department filed in the circuit court a petition for enforcement pursuant to Section 120.- 69, Florida Statutes (1983).
After a hearing on the enforcement petition the trial court determined the agency’s restoration order to be an inappropriate remedy, and ordered instead that Brown pay $1,000 to the Department as a civil penalty and for expenses incurred by the Department in tracing, controlling, and abating the fill violation.
The Department brought this appeal, contending that so long as the penalty imposed by the agency was within the range of that permitted as a matter of agency discretion, the circuit court was powerless to overturn the penalty, citing to Florida Real Estate Commission v. Webb, 367 So. 2d 201, 203 (Fla.1978).
We distinguish Webb because it involved a Section 120.68 review which was limited to a determination whether the penalty imposed was within the range of discretion delegated to the agency.
In a Section 120.69(5) enforcement proceeding the court may find, as it did here, that an agency action, even though within the range of discretion delegated to the agency, is not “appropriate”, i.e. not suitable for the particular person, condition, occasion, or place. See definition of “appropriate”. The American Heritage Dictionary 64 (1980). The agency action is presumed correct in an enforcement proceeding the same as in a judicial review proceeding, which presumption is, nonetheless, rebuttable.
The circuit court reviewed all the facts and concluded that, under the circumstances, an order requiring the violator himself to complete restoration of the land, water and vegetation to its original condition and to the Department’s satisfaction, within 60 days of approval of a plan submitted by the violator, was inappropriate. It appears that the Department was capable of making the same restorations at the violator’s expense. That determination is supported by competent and substantial evidence and will not be disturbed on appeal. Laufer v. Norma Fashions, Inc., 418 So. 2d 437 (Fla. 3d DCA 1982).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Browning v. Dep't of Bus. Reg., 574 So. 2d 188 (Fla. 1st DCA 1991)…ursuant to section 120.69, however, the circuit court is expressly authorized to adjudicate whether the penalty sought to be enforced is appropriate under the circumstances. § 120.69(5), Fla.Stat. (1989); State, Dept. of Environmental Reg. v. Brown, 449 So. 2d 908 (Fla. 3d DCA), rev. denied, 459 So. 2d 1039 (Fla.1984). Therefore, the circuit court in this case was empowered to decline enforcement of any condition or penalty imposed by the Division’s order that it found to be inappropriate in view of the circu…
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126th Ave. Landfill, Inc. v. State, 712 So. 2d 2 (Fla. 2d DCA 1998)…ateness. The cases on which the landfill relied, Browning v. Department of Business Regulation, Div. of Florida Land Sales, Condominiums and Mobile Homes, 574 So. 2d 188 (Fla. 1st DCA 1991) and State, Department of Environmental Regulation v. Brown, 449 So. 2d 908 (Fla. 3d DCA 1984), both concerned administrative orders, not consent orders. Both cases held that in an enforcement proceeding, section 120.69 expressly authorizes the court to review whether a penalty is inappropriate, that is, unsuitable under th…
Authorities Cited
- Fla. Real Est. Comm'n & Casimir Szpak v. Webb, 367 So. 2d 201 (Fla. 1978)
- Laufer v. Norma Fashions, Inc., 418 So. 2d 437 (Fla. 3d DCA 1982)