S. Fla. Water Mgmt. Dist. v. Rli Live Oak, LLC

• Decision Date: 22 May 2014
• Docket Number: No. SC12–2336.,SC12–2336.
• Citation: 139 So.3d 869
• Parties: SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Petitioner, v. RLI LIVE OAK, LLC, Respondent.
• Court: Florida Supreme Court

139 So.3d 869

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Petitioner,

v.RLI LIVE OAK, LLC, Respondent.

No. SC12–2336.

Supreme Court of Florida.

May 22, 2014.

Carolyn Stroud Ansay, James Edward Nutt, Ruth A. Holmes, and Alison L. Kelly of the South Florida Water Management District, West Palm Beach, FL, for Petitioner.

M. Christopher Bryant and Kenneth G. Oertel of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, FL, for Respondent.

Matthew Zane Leopold, General Counsel, and Barney J. Chisolm, Jr., Deputy General Counsel, Florida Department of Environmental Protection, Tallahassee, FL, for Amicus Curiae, Florida Department of Environmental Protection.

Pamela Jo Bondi, Attorney General, Allen C. Winsor, Solicitor General, and Leah A. Sevi, Deputy Solicitor General, Tallahassee, FL, for Amicus Curiae, State of Florida.

LABARGA, J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in RLI Live Oak, LLC v. South Florida Water Management District, 99 So.3d 560 (Fla. 5th DCA 2012). The South Florida Water Management District subsequently filed a motion for certification, which the Fifth District granted, certifying the following question to be of great public importance:

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?

Pennington v. State, 100 So.3d 193 (Fla. 5th DCA 2012), review granted, So. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, SC12–2336, 2013 Fla. LEXIS 879 (Fla. order entered Mar. 7, 2013). We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const. Because we conclude that the question as certified by the district court is too broad, we rephrase the district court's certified question as follows:

WHERE THE LEGISLATURE STATUTORILY AUTHORIZES A STATE GOVERNMENTAL AGENCY TO RECOVER A “CIVIL PENALTY” IN A “COURT OF COMPETENT JURISDICTION” BUT DOES NOT SPECIFY THE AGENCY'S BURDEN OF PROOF, IS THE AGENCY REQUIRED UNDER DEPARTMENT OF BANKING & FINANCE V. OSBORNE STERN & CO., 670 So.2d 932 (Fla.1996), TO PROVE THE ALLEGED VIOLATION BY CLEAR AND CONVINCING EVIDENCE BEFORE THE COURT MAY ASSESS THE CIVIL PENALTY?

We answer the rephrased certified question in the negative and hold that where the Legislature statutorily authorizes a state governmental agency to recover a “civil penalty” in a “court of competent jurisdiction” but does not specify the agency's burden of proof, the agency is not required under Osborne to prove the alleged violation by clear and convincing evidence, but rather by a preponderance of the evidence. Thus, we reverse the district court's decision.

FACTS

The underlying facts, as stated in the district court's opinion, are as follows:

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.

RLI, 99 So.3d at 560–61. In its analysis, the district court considered the burden of proof that the District was required to satisfy in order to obtain an award of civil penalties. The court stated:

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 and 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.

Id. at 561. On motion for rehearing or certification, the panel denied rehearing. However, the Fifth District stated that it agreed with “the South Florida Water Management District ... that this case presents an issue of great public importance that should be addressed by the Florida Supreme Court,” and certified its question for a determination by this Court of the proper burden of proof. So. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 100 So.3d 193, 37 Fla. L. Weekly D2528 (Fla. 5th DCA Oct.26, 2012), review granted, SC12–2336, 2013 Fla. LEXIS 879 (Fla. order entered Mar. 7, 2013).

In addition to the briefs filed in this Court by the South Florida Water Management District (District) and RLI, the Office of the Attorney General of Florida and the Florida Department of Environmental Protection filed amicus briefs in support of the District.

ANALYSIS

The rephrased certified question requires this Court to consider the appropriate burden of proof that state agencies, when pursuing a statutorily authorized action against an entity in a court of competent jurisdiction, must satisfy before civil penalties may be imposed. Because the certified question presents a pure question of law, our review is de novo. See Jackson–Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1085 (Fla.2008) (citing Macola v. Gov't Emp. Ins. Co., 953 So.2d 451, 454 (Fla.2006)). We begin our analysis with an overview of the applicable law and a discussion of the preponderance of the evidence and the clear and convincing evidence standards. We then turn to the district court's reliance on Osborne.

The Applicable Law and Burdens of Proof

“The Florida Legislature has clearly stated that it is a policy of the State to provide for the management of water and related land resources.” A. Duda & Sons, Inc. v. St. Johns River Water Mgmt. Dist., 17 So.3d 738, 740 (Fla. 5th DCA 2009). To that end, the Legislature established the “Florida Water Resources Act of 1972” as enumerated in chapter 373, Florida Statutes, and it authorized entities including the Department of Environmental Protection and the South Florida Water Management District to regulate and enforce compliance. §§ 373.013, 373.129, Fla. Stat. (2007). Section 373.129 provides that authorized entities may pursue “necessary actions and proceedings in any court of competent jurisdiction,” and section 373.129(5) authorizes such actions and proceedings for the recovery of civil penalties. The statute provides in relevant part:

Maintenance of actions.—The department, the governing board of any water management district, any local board, or a local government to which authority has been delegated pursuant to s. 373.103(8), is authorized to commence and maintain proper and necessary actions and proceedings in any court of competent jurisdiction for any of the following purposes:

....

(5) To recover a civil penalty for each offense in an amount not to exceed $10,000 per offense. Each date during which such violation occurs constitutes a separate offense.

§ 373.129(5), Fla. Stat. (2007).

However, while the recovery of a civil penalty is authorized under section 373.129(5), the statute does not expressly provide the required burden of proof that the complaining party must satisfy in order obtain a recovery. Traditionally, a preponderance of the evidence standard is the applicable burden of proof in civil cases. In Gross v. Lyons, 763 So.2d 276, 280 n. 1 (Fla.2000), we explained that “[a] ‘preponderance’ of the evidence is defined as ‘the greater weight of the evidence,’ Black's Law Dictionary 1201 (7th ed. 1999), or evidence that ‘more likely than not’ tends to prove a certain proposition.” (citing Am. Tobacco Co. v. State, 697 So.2d 1249, 1254 (Fla. 4th DCA 1997) (quoting Bourjaily v. U.S., 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987))).¹ “Because the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389–90, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)).

The District argues that a preponderance of the evidence standard is sufficient in this case, while RLI maintains that based on Osborne, clear and convincing evidence is the proper standard. Clear and convincing evidence is defined as an intermediate burden of proof that:

requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Inquiry Concerning a Judge, 645 So.2d 398, 404 (Fla.1994) (quoting

Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)). “One typical use of the [clear and convincing evidence] standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant.” Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, ...