11-3052 FT INVESTMENTS, INC., v. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

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State: Florida

Court: Florida First District Court

Docket No: 11-3052

Case Date: 06/14/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA FT INVESTMENTS, INC., Appellant, v. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee. _____________________________/ Opinion filed June 14, 2012. An appeal from an order of the Department of Environmental Protection. Kenneth B. Hayman, Presiding Officer. Robert D. Fingar of Guilday, Tucker, Schwartz & Simpson, Tallahassee, for Appellant. Kellie D. Scott, Senior Assistant General Counsel, and Janet Tashner, Senior Assistant General Counsel, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-3052

CORRECTED PAGES: pg 1 CORRECTION IS UNDERLINED IN RED MAILED: June 18, 2012 BY: NKN

SWANSON, J. Appellant, FT Investments, Inc., seeks review of a final order of the Department of Environmental Protection finding appellant strictly liable for

petroleum contamination on property purchased by appellant. Although conceding it did not qualify for the "innocent purchaser defense" under section 376.308(1)(c), Florida Statutes, because it knew of the petroleum contamination before it purchased the property, appellant argues it did qualify for the "third party defense" under section 376.308(2)(d), Florida Statutes, because the petroleum contamination was caused solely by the acts or omissions of a third party. We disagree and affirm. In 1999, appellant purchased property containing an underground petroleum storage tank system for a gasoline service station that operated on the property from 1968 to 1980. Prior to purchasing the property, appellant contracted for an environmental contamination. assessment of the property, which revealed petroleum

Appellant did not report the discovery of the petroleum

contamination until 2003, when it submitted an application for eligibility in the Petroleum Cleanup Participation Program. The Department denied the application and later initiated an administrative enforcement action to compel appellant to undertake assessment and remediation of the reported petroleum contamination. After it was determined that there were no disputed issues of material fact, the Department assigned a presiding officer to conduct an informal proceeding. Appellant argued it was entitled to a third party defense to strict liability for the petroleum contamination under section 376.308(2)(d) because the petroleum 2

contamination was caused solely by the acts or omissions of a third party. However, the presiding officer issued a final order concluding that appellant's knowing purchase of contaminated property, which precluded the assertion of an innocent purchaser defense under section 376.308(1)(c), also precluded the assertion of a third party defense under section 376.308(2)(d). Alternatively, the final order concluded that even if appellant could assert a third party defense, appellant failed to exercise due care with respect to the contamination. This appeal followed. Created in 1992, the innocent purchaser defense of section 376.308(1)(c) protects the purchaser of contaminated petroleum and drycleaning sites from strict liability under the statute if the purchaser can show that it (1) acquired title to property contaminated by the activities of a previous owner, operator, or third party; (2) did not cause or contribute to the discharge; and (3) did not know of the polluting condition at the time it acquired title after conducting an appropriate inquiry. Ch. 92-30,

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