A party is eligible for participation in the Florida Petroleum Liability and Restoration Insurance Program (FPLRIP) where the party demonstrated financial responsibility on the date of the discharge and received a notice of eligibility to participate in FPLRIP.  Sullivan v. Florida Dep’t of Envt’l Protection, 890 So. 2d 417 (Fla. 1st DCA 2004).

Property owners purchased petroleum liability insurance from a private insurer for the period of September 3, 1997 to September 3, 1998. The insurance policy demonstrated financial responsibility in accordance with Section 376.3072(2)(b)(2), F.S., and thus established eligibility for the FPLRIP. A petroleum discharge was discovered on September 17, 1998 – two weeks after expiration of the insurance policy – and promptly reported to DEP.

DEP, in its Final Order, held that the property owners had not demonstrated “financial responsibility,” because the property was not insured on the date the discharge was discovered. It was undisputed that the discharged occurred while the policy was in effect. The First DCA reversed DEP’s Final Order, because DEP effectively ignored the language of the insurance policy which included the language required by 40 C.F.R. § 280.97(b)(2)(2)(e) which stated “[t]he insurance covers claims otherwise covered by the policy that are reported to the ‘Insurer’ within six months of the effective date of cancellation or non-renewal of the policy.”

Thus, the Court found the petroleum discharge discovered two weeks after the non-renewal of the policy was covered by the private insurance policy, and the property owner was “financially responsible” on the date of discharge such that it was eligible for participation in the FPLRIP.

Under Section 253.12(9), F.S., title holders, not the upland property owners, are the proper owners of lands filled before July 1, 1975. River Place Condominium Assoc. at Ellenton, Inc. v. Benzing, 890 So. 2d 386 (Fla. 2d DCA 2004).

Section 253.12(9), F.S., adopted on July 1, 1993, divested the state of sovereign submerged lands that were filled before July 1, 1975, to which the State previously held title. Ownership was divested to “the landowner having record or other title to all or a portion thereof or to the lands immediately upland thereof.”

River Place, owners of a parcel of upland property, asserted ownership to adjacent filled lands under Section 253.12(9), F.S. However, prior to the enactment of Section 253.12(9, F.S., on July 1, 1993, a developer had recorded a quit claim deed to the filled lands, which was subsequently transferred to the Benzings. The Second DCA found that title to the filled lands vested in the developer upon the enactment of section 253.12(9), F.S., on July 1, 1993 and thus the Benzings were the record title holders of the filled lands. Because Section 253.12(9), F.S., was enacted to remove clouds on the title to lands filled before July 1, 1975, deedholders asserting ownership of filled lands under Section 253.12(9) have a superior claim over adjacent upland property owners’ claims.
 
River Place argued, alternatively, that Section 253.12(9), F.S., is unconstitutional because the sale of sovereign lands is only authorized by the Florida Constitution (Article X, Section 11) when the sale is “in the public interest.” River Place claimed that since the State did not receive compensation, the sale was not “in the public interest.” The court found the lands were of “marginal value” and would be more valuable if included on the tax roll. Thus, the court construed the statute to allow the sale without immediate compensation and thus declared Section 253.12(9), F.S., valid and constitutional.


The City’s denial of a petition to redesignate a parcel from preservation to residential was not “fairly debatable.” Island, Inc. v. City of Bradenton Beach, 884 So. 2d 107 (Fla. 2d DCA 2004).

Property owners appealed a decision by the City Commission denying their petition to change the Future Land Use Map designation of their property from preservation to medium/high residential in order to permit construction of a duplex. The Second DCA found that the City Commission’s denial of the property owners’ petition was not fairly debatable because the City failed to properly rebut the expert testimony that the subject property did not meet the definition of preservation.

Property owners presented expert testimony, including the City’s land planner, that the subject property did not meet the definition of preservation, the county taxed the property as R-3 residential property, and the mayor’s son had a license to operate a sailboat rental business on the property, which is not allowed on parcels designated preservation. The only evidence offered by the City to support denial of the petition was that of neighboring property owners and former members of the City Commission or advisory council that the City intended for the property to be designated preservation and maintained as open space. Thus, based on the City’s failure to rebut this expert testimony, the City’s denial of the petition was not fairly debatable.


Standing requirements to appeal under Section 120.68(1), F.S., are narrower than the standing requirements for an administrative hearing under Chapter 163, F.S. Melzer v. Florida Dep’t of Community Affairs, 881 So. 2d 623  (Fla. 4th DCA 2004).

Appellants attempted to challenge amendments to Martin County’s comprehensive plan allowing the County to have more flexibility in locating schools and other public facilities near wetlands and other natural resources. The Appellants, who were residents of Martin County, qualified for standing under Chapter 163, F.S., because the definition of affected person includes “persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review.” However, standing to appeal the administrative order is governed by Section 120.68, F.S., which requires a party to be “adversely affected by the final agency action.” Because Appellants failed to establish they were “adversely affected by the final agency action,” they lacked standing to appeal.


A City may not lease excess capacity in fiber optic cables used in operation and maintenance of electric transmissions lines because that use exceeded the scope of the easement. City of Orlando v. MSD-Mattie, L.L.C., 30 Fla. L. Weekly 341 (Fla. 5th DCA 2005).

The City, owner of easements for electric transmission lines, replaced old copper cored “shield” wires with fiber optic wires. While the City used a small portion of the fiber optic wires for communications related to the electric transmission lines, the City wanted to lease the additional capacity of the fiber optic wires to telecommunication companies. The property owners objected arguing that such a use would exceed the scope of the easement.
The Court found the terms of the easement were unambiguous and specified that the wires could be used for internal communication for the “establishment, use, operation, and maintenance of one or more overhead electric transmission lines.” While the parties agreed that the fiber optic cable installation was within the scope of the easement to the extent it was used solely by the City for the electric transmission line operation, the Court found the lease of the additional capacity would exceed the scope of the easement.

The City argued unsuccessfully that because the leasing of the fiber optic cable’s additional capacity would not further burden the servient estate, such use was not prevented by the easement. The Court rejected this argument finding “the scope of an easement is defined by what is granted, not by what is excluded, and all rights not granted are retained . . . .” Therefore, the right to convey the use of the easement for telecommunications purposes was retained by the grantor of the easement.


DEP failed to prove by competent and substantial evidence that Appellant was responsible for the discharge of oil on the subject property. Kerper v. Dep’t of Environmental Protection, 30 Fla. L. Weekly 215 (Fla. 5th DCA 2005).

Kerper was leasing a parcel of property which he used to sell salvaged auto parts. Kerper intended on purchasing the property until he discovered environmental problems on the property. After filing a complaint against the property owner with the County for the environmental problems, Kerper vacated the property upon the filing of an eviction proceeding.

Shortly thereafter, DEP investigators visited the site, wherein the property owner stated that Kerper was responsible for a 55 gallon drum that was tipped over and leaking a substance which “appeared” to be oil. The hearsay testimony of the now deceased property owner was the only evidence DEP presented to prove Kerper was responsible for the discharges. The Fifth DCA reversed the DEP’s Final Order finding that this hearsay testimony was not competent, substantial evidence. In addition, DEP failed to prove the substance was oil. The court found that “DEP’s current policy of requiring a person cited to conduct [analytical] testing to prove his innocence improperly shifts the burden of proof required by law.” Thus, the DEP failed to prove by competent and substantial evidence that Kerper was responsible for the discharge of oil on the property.

The court also found DEP’s document entitled “Corrective Actions for Contaminated Site Cases” (CACSC) was an unpromulgated rule. Section 376.30701, F.S., required DEP to establish rules for contaminated site rehabilitation by July 1, 2004. The DEP failed to promulgate rules for this purpose, but instead published the CACSC. The CACSC “requires compliance,” uses mandatory terms such as “shall,” and is a “statement of general applicability” which therefore requires promulgation as a rule. Thus, the CACSC, which sets procedures for a violator to initiate site sampling, propose remedial actions, and file plans and reports cannot be enforced because it was an un-promulgated rule.


An easement for ingress and egress is implied by a grant of oil and mineral rights. Noblin v. Harbor Hills Development, 30 Fla. L. Weekly 237 (Fla. 5th DCA 2005).

Noblin was successor to a party who was granted “one-half of the mineral and oil rights, including the right to exploit the same” The court found the “right to exploit” conveyed an easement for ingress and egress, allowing Noblin to enter the property “to search for and extract one-half of the oil and minerals.” The general rule is that for a grant of oil and mineral rights, the parties intend to create two estates, the mineral estate and the surface estate. “[T]he owner of the mineral estate has the right of ingress and egress to explore for, locate and remove the minerals, but he cannot so abuse the surface estate so as unreasonably to injury or destroy its value”. Therefore, generally the grant of oil and mineral rights implies the right of ingress and egress to explore for and remove the oil and minerals.

However, the Court found that material issues of law and fact existed as to whether this easement of ingress and egress is extinguished by the Marketable Record Title Act (MRTA). The deed creating the easement for ingress and egress predates the root of title. However, Noblin claims that Section 712.03(5), F.S., the “use” exception to the MRTA, prevents this easement from being extinguished, because minerals had been previously extracted. Although the easement of ingress and egress had probably been used, the materials that had been extracted were clay, sand, topsoil and limestone and did not constitute minerals. Since there are remaining issues of law and fact on the issue of the application of the MRTA, the Court remanded for further proceedings.


Property owner’s complaint bringing challenging the constitutionality of code enforcement statutes and alleging a claim under 42 U.S.C. Section 1983 stated a cause of action. Wilson v. County of Orange, 881 So.2d 625 (Fla. 5th DCA 2004).

County code inspectors filed code enforcement violations against the Wilsons after several warrantless searches of the Wilson’s trailer park. After a hearing, the Code Enforcement Board (CEB) found violations of the Code. The Wilsons were given 30 days to correct the violations. Despite the Wilsons’ claim that the violations were timely corrected, a code inspector filed an affidavit of non-compliance. Without any further hearings the CEB entered three orders imposing a $300/day fine until the properties were brought into compliance. The CEB order was recorded as a lien against the Wilsons’ real and personal property.

Approximately 19 months later, an inspector filed an affidavit of compliance for the properties. As a result, the County imposed fines totaling $117,100. Another 16 months later, the CEB entered an order reducing the fine amount by 80 percent to $23,420, which the Wilsons paid.

The Wilsons brought an action under 42 U.S.C. section 1983 alleging that the County, under color of state law, violated their Fifth Amendment rights to procedural due process by imposing fines on the property with notice and a hearing. The Wilsons also alleged that their substantive due process rights were violated because the County imposed liens on their property based solely on a one-sided affidavit of non-compliance. In addition, the Wilsons alleged – in the section 1983 count – that the excessive fines imposed by the County violated their Eight Amendment rights.

The Wilsons also challenged the constitutionality of sections 162.09(1) and 162.07, F.S. (along with parallel provisions of the County Code) alleging that the sections were facially unconstitutional for authorizing the imposition of: 1) fines and liens against property without providing for notice and an opportunity to be heard; 2) fines and liens based solely upon the affidavit of a code inspector; and 3) excessive fines. In addition, the complaint challenged the facial constitutionality of County Code Section 28-41 that authorized warrantless searches of property. After reviewing the allegations in the complaint, the Fifth DCA held the complaint stated a cause of action with respect to each count.


Gary K. Hunter, Jr. is a Shareholder with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.B.A. and J.D. from the University of Georgia. D. Kent Safriet is an Associate with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.S. from Clemson University and his J.D. from the University of South Carolina. Mr. Hunter and Mr. Safriet practice primarily in the areas of environmental and land use litigation and solid and hazardous waste regulation.