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Flo-Sun, Inc. v. Kirk

ELR Citation: 31 ELR 20607
Nos. Nos. SC95044, SC95045, 783 So. 2d 1029/(Fla., 03/29/2001)

The court dismisses individuals' public nuisance action against sugar companies that allegedly disposed of a chemical byproduct of sugar cane processing by deep well injection. A trial court dismissed the individuals' nuisance claim because the individuals did not exhaust their administrative remedies as required by the primary jurisdiction doctrine and because Part I of Chapter 403 of the Florida Statutes, referred to as the Florida Air and Water Pollution Control Act, impliedly superseded the public nuisance provision of Florida Statutes §823.01, under which the individuals brought their complaint. A district court then reversed the trial court and properly held that Chapter 403 does not supersede §823.01. The court first holds that the plain language of Chapter 403 does not expressly supersede §823.01. Further, Chapter 403 does not impliedly supersede §823.01 because there is neither a positive repugnancy between Chapter 403 and §823.01, nor clear legislative intent indicating that the legislature intended to repeal §823.01 when it passed Chapter 403. The court next holds, however, that the district court erred in holding that the primary jurisdiction doctrine does not bar the individuals' claim. The doctrine of primary jurisdiction requires dismissal of the complaint because the individuals failed to seek review of the sugar cane byproduct disposal by the state administrative agency with jurisdiction over the issue. The individuals claim that because of an alleged government complicity in the sugar companies' activity, administrative agency review is not necessary under the egregious and devastating agency errors exception. The court holds, however, that a condition precedent to the exception is an allegation that the state Administrative Procedure Act provides no remedy. The individuals made no such allegation, and, therefore, their complaint was dismissed without prejudice so that it may be reviewed by an administrative agency.

The full text of this decision is available from ELR (26 pp., ELR Order No. L-363).

Counsel for Petitioners
Gerry S. Gibson
Steel, Hector & Davis
777 S. Flagler Dr., W. Palm Beach FL 33401
(561) 650-7200

Counsel for Respondents
Russell S. Bohn
Caruso, Burlington, Bohn & Compiani
1615 Forum Pl., Ste. 3A, W. Palm Beach FL 33401
(561) 686-8010