Section 552.40 - Administrative remedy for alleged damage due to the use of explosives in connection with construction materials mining activities(1) A person may initiate an administrative proceeding to recover damages resulting from the use of explosives in connection with construction materials mining activities by filing a petition with the Division of Administrative Hearings by electronic means through the division's website on a form provided by it and accompanied by a filing fee of $100 within 180 days after the occurrence of the alleged damage. If the petitioner submits an affidavit stating that the petitioner's annual income is less than 150 percent of the applicable federal poverty guideline published in the Federal Register by the United States Department of Health and Human Services, the $100 filing fee must be waived.(2) The petition must include: (a) The name and address of the petitioner;(b) The name and address of the respondent, including the applicable user licenseholder under s. 552.091(5) and permitholder under s. 552.30;(c) The approximate time, date, and place of the use of explosives which is alleged to have resulted in damage to the petitioner; and(d) A description of the damage caused and the amount sought for recovery.(3) Within 5 business days after the Division of Administrative Hearings receives a petition, it shall issue and serve on the petitioner and the respondent an initial order that assigns the case to a specific administrative law judge and provides general information regarding the practice and procedure before the Division of Administrative Hearings. The initial order must advise that a summary hearing is available upon the agreement of the parties under subsection (6) and must briefly describe the expedited time sequences, limited discovery, and final order provisions of the summary procedure. The initial order must also contain a statement advising the petitioner and the respondent that a mandatory, nonbinding mediation is required before a summary administrative hearing or a formal administrative hearing may be held.(4) The administrative judge shall issue an order directing mediation under Rule 1700 et seq., Florida Rules of Civil Procedure. The parties shall jointly select a mediator and the location of mediation. If the parties fail to do so within 30 days after the order for mediation is issued, the administrative law judge shall designate the mediator and the location of mediation. Petitioner and respondent shall each pay one-half of the cost of mediation. If the petitioner's annual income is less than 150 percent of the applicable federal poverty guideline published in the Federal Register by the United States Department of Health and Human Services, the respondent shall bear the full cost of mediation. The mediation must be concluded within 60 days after the date of designation of the mediator unless the parties agree upon a different date.(5) If the parties have not reached a settlement within 30 days after the conclusion of the mediation, the administrative law judge shall set the matter for formal administrative hearing as soon thereafter as possible at a location in the county where the alleged damage occurred. However, a formal administrative hearing may not be scheduled sooner than 30 days after the conclusion of the mediation.(6) In lieu of proceeding directly to a formal administrative hearing scheduled in accordance with subsection (5), upon agreement of the parties, the parties may, within 15 days after the conclusion of unsuccessful mediation, file a motion for summary hearing. The summary hearing must be held at a location in the county where the alleged damage occurred, and all procedural requirements related to the hearing must be governed by s. 120.574 and any rules implementing that section.(7) If the administrative law judge finds that the preponderance of the evidence presented demonstrates that the petitioner's damages were caused by the respondent's use of explosives, the administrative law judge shall set forth in a final order precise findings as to the damages attributable to the respondent and shall direct the respondent to pay damages in an amount supported by the preponderance of the evidence presented within 30 days after the final order is issued, unless the matter is appealed in accordance with s. 552.42. If the respondent fails to pay the damages within 30 days after the final order is issued or within 30 days after the entry of an appellate mandate affirming a final order awarding damages, the petitioner may request and the administrative law judge may order that the petitioner be paid from the security posted by the respondent under s. 552.38 the amount of the damages awarded. To the extent the security does not satisfy the full amount of the damages awarded, the administrative law judge may enter a judgment directly against the respondent for the amount of the difference.(8) If the administrative law judge finds that the preponderance of the evidence presented demonstrates that the petitioner's alleged damages were not caused by the respondent's use of explosives, the administrative law judge shall set forth in a final order precise findings as to the lack of responsibility of the respondent.(9) The prevailing party is entitled to recover taxable costs, including reasonable expert witness fees and any incidental administrative costs directly associated with the case. The prevailing party is entitled to an award of reasonable attorney's fees if the administrative law judge determines that the claim or defense of the nonprevailing party:(a) Was not supported by the material facts necessary to establish the claim or defense;(b) Would not be supported by the application of then-existing law to those material facts; or(c) Was brought or advanced primarily to harass or cause unnecessary delay, for frivolous purposes, or to needlessly increase the cost incurred by the opposition. The losing party has up to 120 days to pay the total amount of attorney's fees and taxable costs assessed. This subsection does not apply to a petitioner who is the nonprevailing party if the petitioner's annual income is less than 150 percent of the applicable federal poverty guideline published in the Federal Register by the United States Department of Health and Human Services.
(10) Except as otherwise provided in this chapter, the procedure for the administrative proceedings provided by this act must be governed by the uniform rules of procedure for decisions determining substantial interests which are authorized by s. 120.54(5), notwithstanding the fact that those rules implement provisions of chapter 120 which are applicable to proposed or final agency action.(11) The filing fees paid pursuant to subsection (1) shall be deposited into the Operating Trust Fund of the Division of Administrative Hearings to defray the expenses and costs associated with the administration of ss. 552.32 - 552.44. s.6, ch. 2003-62; s.95, ch. 2004-5; s.16, ch. 2006-79; s.13, ch. 2011-208.