Florida Department of Environmental Protection v. Holmes Dirt Service, Inc.

864 So. 2d 507, 2004 Fla. App. LEXIS 59, 2004 WL 34513

Opinions

PER CURIAM.

The Florida Department of Environmental Protection has appealed a Final Order of the Division of Administrative Hearings, which reduced penalties assessed against Holmes Dirt Service, Inc. and William J. Holmes by more than fifty percent of the statutory schedule. We affirm.

Section 403.121(10), Florida Statutes (2002), allows an ALJ to reduce up to fifty percent for mitigating circumstances and upon an affirmative finding that the “violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by respondent’s due diligence, the administrative law judge may further reduce the penalty.”

The ALJ had before it competent, substantial evidence that the violations were beyond Appellees’ control; accordingly, we affirm the ALJ’s decision to mitigate damages. See § 120.68(10), Fla. Stat. (2002).

AFFIRMED.

BOOTH and LEWIS, JJ., CONCUR; BENTON, J. DISSENTS WITH WRITTEN OPINION.