RLI LIVE OAK LLC v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT (2014)

District Court of Appeal of Florida, Fifth District.

RLI LIVE OAK, LLC, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.

Case No. 5D11–2329

Decided: July 18, 2014

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.

ON CERTIFIED QUESTION TO THE FLORIDA SUPREME COURT

We consider this case on remand from the Florida Supreme Court after it reversed our decision in RLI Live Oak, LLC v. South Florida Water Management District, 99 So.3d 560 (Fla. 5th DCA 2012). S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 39 Fla. L. Weekly S345 (Fla. May 22, 2014) (holding 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 [Dep't of Banking & Fin. Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So.2d 932, 935 (Fla.1996) ], to prove the alleged violation by clear and convincing evidence, but rather by a preponderance of the evidence”). Because the trial court correctly applied the preponderance of the evidence standard, we now affirm the trial court's judgment imposing civil penalties.

AFFIRMED.

PALMER, LAWSON, and WALLIS, JJ., concur.

PER CURIAM.

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