710 So. 2d 981 | Fla. Dist. Ct. App. | 1997
Lead Opinion
We affirm the trial court’s civil contempt order on appeal. To ensure compliance with its previous orders enjoining environmental hazards, the trial court entered an order within the parameters of Johnson v. Bednar, 573 So.2d 822 (Fla.1991). The order required appellant to post a bond to secure performance of certain remedial measures on the property. In the event that appellant failed to perform, the county could apply to the court for release of the bond so it could arrange to perform the necessary corrective measures.
Appellant relies on Florida Coast Bank of Pompano Beach v. Mayes, 433 So.2d 1033 (Fla. 4th DCA 1983), review dismissed, 453 So.2d 43 (Fla.1984), to argue that the order is deficient for the failure of the court to include a finding that appellant had the financial ability to post the bond. Mayes indicates that prior to imposing contempt sanctions, the trial court must find that the contemnor had the ability to comply with the underlying order that required some type of action. Here, the record reflects that the orders violated were the previous injunctive orders of the court, including the civil contempt order entered on June 1, 1993. The trial court specifically found that appellant had the ability to comply with those orders. Appellant’s ability to post the bond would become relevant in a motion for contempt for the failure to post it, where the county seeks the imposition of a fine under Johnson or of a purge-able jail sentence.
We find no error as to the other points raised.
AFFIRMED.
Dissenting Opinion
dissenting.
I would grant rehearing and reverse. This was a civil contempt order which referred to the fíne assessed against appellant as a “bonded fine,” requiring the appellant to post a bond and secure the performance of remedial measures, the cost of which was figured as the bond amount. Whether one refers to this as a “bond” or a “fíne,” I now conclude that U.S. v. United Mine Workers of Amer-ica, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), cited with approval in Johnson v. Bednar, 573 So.2d 822, 824-25 (Fla.1991), compels reversal.
The Supreme Court in United Mine Workers set forth the principles on which a trial court could assess a civil contempt, whether it be compensatory or coercive. It stated that:
where the purpose is to make the defendant comply, the court’s discretion is otherwise exercised. It must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.
It is a corollary of the above principles that a court which has returned a conviction for contempt must, in fixing the amount of a fine to be imposed as a punishment or as a means of securing future compliance, consider the amount of defendant’s financial resources and the consequent seriousness of the burden to that particular defendant.
330 U.S. at 304, 67 S.Ct. at 701 (footnotes omitted).
I interpret United Mine Workers as requiring the court to consider the amount of a defendant’s resources in setting even a coercive fine, not just when the court is considering incarceration.
I believe that the majority’s distinction between a bond and a fine is no longer appropriate. The county moved for contempt and sanctions. Without considering the appellant’s financial resources, the court set a “bonded fine.” I think United Mine Workers compels the court to consider evidence of the appellant’s ability to pay when setting the “bonded fine,” not only on subsequent efforts to enforce the order.
Rehearing
ON MOTION FOR REHEARING
The motion for rehearing is denied.
SHAHOOD and GROSS, JJ., concur.
WARNER, J., dissents with opinion.
