May 19, 2022

Volume XII, Number 139

Advertisement
Advertisement

May 19, 2022

Subscribe to Latest Legal News and Analysis

May 18, 2022

Subscribe to Latest Legal News and Analysis

May 17, 2022

Subscribe to Latest Legal News and Analysis

May 16, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

Standard of Proof for Civil Penalties in Florida is “Preponderance” not “Clear and Convincing”

On May 22, 2014, the Supreme Court of Florida reversed the Fifth District Court of Appeals in the case of South Florida Water Management District v. RLI Live Oak, LLC, No. SC 12-2336 (Fla. May 22, 2014), an appeal brought by the water management district over the applicable burden of proof when imposing civil penalties.  The Florida Supreme Court held that, when “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 [Department of Banking & Finance v. Osborne Stern & Co, 670 So. 2d 932 (Fla. 1996)] to prove the alleged violation by clear and convincing evidence, but rather by a preponderance of the evidence.”

In its opinion, the Florida Supreme Court reasoned that the lower appellate court had “overextended” Osborne in the lower court’s application of the higher burden of proof to this civil enforcement proceeding.  Agreeing with the South Florida Water Management District, the Court refused to apply the clear and convincing standard applicable to “administrative fines” in Osborne to an award of civil penalties in a civil enforcement cases, absent specific legislative authorization.

This case originally arose over a dispute between the Water Management District and the land developer, RLI Live Oak, LLC (RLI), over the unauthorized dredging and filling of wetlands on property owned by RLI in Osceola County.  The circuit court ruled against RLI on all counts and awarded the Water Management District $81,900 in civil penalties.  The appellate court reversed upon finding that the Water Management District had failed to satisfy the required burden of proof for such an award, relying upon Osborne.  The case was certified to the Florida Supreme Court as presenting an issue of great public importance, as requested by the Water Management District.  The Florida Attorney General and the Florida Department of Environmental Protection filed amicus briefs in support of the Water Management District.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume IV, Number 147
Advertisement

About this Author

Kerri Barsh, Greenberg Traurig Law Firm, Miami, Environmental Law Litigation Attorney
Shareholder; Co-Chair, National Environmental Practice

Kerri L. Barsh is Co-Chair of the firm’s Environmental Practice and represents public and private clients on an array of environmental regulatory, permitting and litigation matters, including transactional support and due diligence, environmental assessment and liability matters, energy and infrastructure projects, wetlands and coastal permitting, complex land use projects, air quality matters, hazardous materials contamination, and other compliance and enforcement cases.

Concentrations

  • Environmental compliance...

305-579-0772
Advertisement
Advertisement
Advertisement