STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF NATURAL RESOURCES )

)

Petitioner, )

)

vs. ) CASE NO. 86-1470

) DIDI'S SEAFOOD CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on July 21, 1987 at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Henri C. Cawthon

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399

For Respondent: Michael I. Rose

Suite 303, Robert Building

28 West Flagler Street Miami, Florida 33130

BACKGROUND AND PROCEDURAL MATTERS

This case began on April 7, 1986, when Petitioner filed an Administrative Complaint for Revocation of License (Monroe County WD 000938) and Notice of Denial of License Renewal (Dade County WD 000008). The complaint sought the revocation of Respondent's wholesale dealer's license WD 000938 (Monroe County), and alleged the corporation had been adjudicated guilty of the federal offense of transporting; with intent to sells undersized lobster tails in violation of Section 370.14(2)(a)(1) Florida Statutes. Additionally, the complaint charged that because individuals associated with the corporation had been convicted of the offense, the corporation.'s license should be revoked. Finally, Petitioner charged that Respondent operated a wholesale seafood dealership without a current license and thereby failed to observe the laws of Florida regulating the sale of seafood. On or about April 30, 1986, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the final hearing, Petitioner relied on the Prehearing Stipulation executed and filed by the parties on October 14, 1986. Petitioner submitted Exhibits 1 through 7 which, over Respondent's objections, have been received

into evidence and considered in this cause. Respondent presented the testimony of Roland Suarez, Jr., together with Respondent's Exhibits 1 through 3 which were admitted into evidence. A late-filed exhibit constituting the file of the department regarding licenses, WD 000938 and WD 000008, was received and marked joint Composite Exhibit #1.

After the hearing, Petitioner filed a Proposed Recommended Order. It has been carefully considered in the preparation of this Recommended Order and specific rulings on the Proposed Findings of Fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Respondent is guilty of the violations alleged in the Administrative Complaint which demands relief against Respondent's Monroe County license (WD 000938), and, if so, what penalty should be imposed. The secondary issue is whether Respondent's Dade County license (WD 000008) should be denied renewal. A companion case, Didi's Seafood Corporation

1. Department of Natural Resources (Case No. 86-4512), addresses the third issue of whether Didi's Monroe license is entitled to renewal. The Recommended Order in that case is being issued concurrent with this Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon the Prehearing Stipulation, I make the following findings of fact:

   
   

   1. Roland Suarez was Vice-President of Respondent when the described offenses were committed. Ofelia Suarez was Treasurer of Respondent when the described offenses were committed.

      
      

   2. Respondent held, and applied for renewal of, WD license nos. 000008 (Dade County) and WD 000988 (Monroe County).

      
      

   3. The described Federal offenses were committed between November 30, 1982 and December 14, 1982.

      
      

   4. The described offenses, as pled guilty to, were violations of the Federal Lacy Act [16 U.S.C. s.3372(a)(2)(A) and s.3373(d)(1)(B) and (d)(2)].

      
      

   5. The Federal Lacy Act violations were predicated upon violation of Section 370.14(2)(a)(1), Florida Statutes (1983); which prohibits possession of undersized lobster tails.

      
      

   6. The charges against Respondent and Rolando Suarez involved knowingly transporting with intent to sell, offer for sale, and sale of approximately 400 pounds of undersized lobster tails.

      
      

   7. Four hundred twenty pounds of undersized lobster tails constitutes more than 100 individual tails.

      
      

   8. Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following additional Findings of Fact:

      
      

   9. On January 9, 1986, Didi's Seafood Corporation pled guilty to a crime constituting a violation of Section 370.14(2)(a)(1), Florida Statutes and Title 16, U.S. Code Sections 3372(a)(2)(A) and 3373(d)(1)(B). Respondent was then

      convicted as charged for the offense of knowingly transporting with the intent to sell, offering for sale, and knowingly selling, in interstate commerce approximately 400 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of the law. Respondent was ordered to pay a fine of $1000.00.

      
      

   10. On January 9, 1986, Rolando Suarez pled guilty to a crime constituting a violation of Title 16, USC, 3372(A) and 3373(d)(2). Rolando Suarez was then convicted of the offense of transporting with intent to sell and offering for sale undersized spiny lobster tails. Roland Suarez was ordered to pay a fine of

       $1000.00.

       
       

   11. Didi's Seafood Corporation has been in business since 1973. Each year prior to January, 1986, Respondent had successfully renewed its wholesale dealer's licenses for Dade County (WD 000008) and Monroe County (WD 000988).

       The licenses did not run on the calendar year, but expired on June 30 of each year. The Monroe license (WD 000988) therefore expired on June 30, 1986. The Dade license (WD 000008) was denied renewal on April 7, 1986.

       
       

   12. On June 29, 1986, Ernesto Pichardo, the plant manager for Respondent's Monroe County business, executed an affidavit as to the wholesale dealer's law abiding reputation and attempted to renew the Monroe license. The renewal was denied based upon the conviction described in Finding of Fact paragraph 8.

       
       

   13. Any criminal acts which may have occurred took place in connection with the Dade County license (WD 000008).

       
       

   14. There is no evidence to suggest that either Ernesto Pichardo or any other person connected with Respondent's Monroe County business has been arrested or convicted of any crime.

       
       

   15. On January 13, 1986, Roland Suarez executed an affidavit as to wholesale dealer's law abiding reputation. On January 27, 1986, Roland Suarez executed another affidavit as to wholesale dealer's law-abiding reputation. Both of these affidavits were in connection with the Dade County license and required Roland Suarez to answer the following question:

       
       

       Excluding traffic offenses, I have either been arrested for or convicted of the following offenses. List each offense and the year arrested or convicted. If you have never been arrested or convicted, write "None."

       
       

       In both cases the answer given was "none." Roland Suarez' affidavit was false since he had been convicted of the charges described in Finding of Fact, paragraph 9.

       
       

   16. On June 25, 1984, Roland Suarez, Jr., was issued a citation which alleged a violation of Section 370.07(1) Florida Statutes, for operating as a seafood dealer without a wholesale license. This citation was issued in Dade County, Florida.

       
       

   17. On April 2, 1984, Ofelia Dopica Suarez received a citation alleging a violation of Section 370.07(1) Florida Statutes for operating as a seafood dealer without a wholesale license.

   18. Roland Suarez, Jr. and Didi's Seafood Corporation pled guilty to the federal charges described in Finding of Fact paragraphs 8 and 9 to avoid the time and cost of continuing the defense of the violations. Mr. Suarez denied knowingly receiving undersized lobster tails. The lobster tails were from Nicaragua and were in transit when seized. Because about 10,000 pounds of lobster tails were seized and mixed, frozen, it was impossible to determine if any of the tails seized at Didi's plant were undersized.

       
       

   19. Respondent received payment for a portion of the alleged undersized lobsters tails since some percentage, still unknown to the parties, was legal. The exact number, if any, of undersized lobsters tails was not determined.

       
       

   20. The federal identification number for Respondent's Monroe County business and Dade County business is the same, ID #59-1465901.

       
       

       CONCLUSIONS OF LAW

       
       

   21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

       
       

   22. The correct standard for the revocation of a license as in the case at issue is that the evidence must be clear and convincing. Ferris v. Turlington,

       510 So.2d 292 (Fla. 1987). The Ferris court agreed with the district court in Reid v. Florida Real Estate Commission, 188 So.2d 846, 851(Fla.2d DCA 1966); that:

       
       

       The power to revoke a license should be exercised with no less careful circumspection than the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.

       
       

       This elevated standard is necessary to protect the rights and interests of the accused where the proceedings implicate the loss of livelihood. Ferris at 295.

       
       

   23. Section 370.07(5)(a) Florida Statutes (1983) provides that a license issued to a seafood dealer may be revoked:

       
       

       By the division upon the conviction of the person, to whom issued, of any violation of the laws or regulations designed for the conservation of fish, seafood, or other products of the fresh or salt waters of this state;

       1. Upon conviction of the person, to whom issued, of knowingly

          dealing in, buying, selling, transporting, possessing, or taking an fish, seafood, or saltwater product, at any time and from any

          waters, in violation of the laws of this state; or

       2. By the division upon satisfactory evidence of any violation of the laws or any regulations of this state designed for the conservation of fish, seafood, or other products of the fresh or salt waters of this state or of any of the laws of this state relating a. to dealing in, buying, selling, transporting, possession, or taking of fish, seafood, or saltwater products.

          
          

          Section 370.14 Florida Statutes (1983) provides, in part:

          
          

          1. Intent. It is the intent of the Legislature to maintain the crawfish industry for the economy of the state and to conserve the stocks supplying this industry. The provisions of this act regulating the taking of saltwater crawfish are for the purposes of insuring and maintaining the highest possible production of saltwater crawfish.

             
             

          2. Taking of Certain Crawfish Prohibited.

          
          

          (a)1. No person, firm or corporation shall take or have in his possession at any time, regardless of where taken, any saltwater crawfish (spiny lobster or crayfish) of the species Panulirus argus unless such saltwater crawfish (spiny lobster or crayfish) of the species Panulirus argus shall have a carapace measurement of more than 3 inches or shall have a tail measurement not less than 5 1/2 inches, not including any protruding muscle tissue.

          
          

   24. The proof is clear that Respondent received a conviction which constitutes grounds for the revocation of its license under Section 370.07(5), Florida Statutes. Respondent pled guilty to avoid the expense and time of a criminal defense. Moreover, it did so in a negotiated plea which required the payment of a fine. There is no evidence to substantiate the underlying charge of the conviction i.e. that the Respondent did, in fact, possess with intent to sell undersized lobster tails. Since Respondent received partial payment for the lobster tails which had been seized, one must conclude that at least some of the lobster tails were of a legal size. Additionally, since all of the actions

       complained of were in connection with the Dade license, there is no evidence to substantiate that the Monroe license location had participated in any of the alleged illegal activities.

       
       

   25. Petitioner established that Roland Suarez pled guilty to a federal offense. Again, this plea was the result of a negotiation to save the time and expense of a criminal defense. The alleged criminal activity, possession with intent to sell undersized lobsters, was not established.

       
       

   26. Petitioner established that Ofelia Suarez was Treasurer of Didi's Seafood Corporation. Ofelia Suarez did receive a citation, however, Petitioner has not established that the receipt of a citation constitutes a conviction of the crime of operating a wholesale seafood dealership without a current, valid license. Petitioner did not establish that Respondent was, in fact, operating without a valid license. The record submitted established that Respondent's Monroe license was current and valid at the time of the citation. Respondent's Dade license was issued subsequent to the citation date. The citation issued named only Ofelia Suarez not Respondent.

       
       

   27. Petitioner established that Roland Suarez; Jr. received a citation for operating a seafood dealership without a current, valid license. For the reasons previously stated, Petitioner failed to prove Respondent was, in fact, doing business without a valid license.

       
       

   28. Respondent maintained that it has faithfully observed the laws of Florida. But for the conviction which was entered via Respondent's negotiated plea, no proof were adduced from which it could reasonably concluded that Respondent failed to observe the laws regulating the dealing, selling, transporting, and possession of seafood. Respondent agreed to the negotiated plea under the mistaken assumption that the plea would not affect its licenses. This mistake resulted in fines and the denial of renewal of its licenses which expired June 30,1986. Thus, since that time Respondent has been without a current, valid license and, consequently, out of business.

       
       

   29. Petitioner has proved, by clear and convincing evidence, grounds for which revocation may be allowed. However, in the case at issue there are sufficient mitigating circumstances to warrant other discipline against Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Lawn it is RECOMMENDED:

That the Department of Natural Resources enter a Final Order finding Respondent guilty of the violation alleged in Count I of the Administrative Complaint, but granting the renewal of its licenses and placing them on probation for a period of two years.

DONE and ORDERED this 1st day of October, 1987, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1470

Rulings of the Proposed Findings of Fact submitted by Respondent.

1. Accepted in Findings of Fact paragraphs 1-8.

COPIES FURNISHED:

Michael I. Rose, Esquire Suite 303, Roberts Building

28 West Flagler Street Miami, Florida 33130

Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399

Mr. Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Thomas G. Tomasello, Esquire General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Docket for Case No: 86-001470

Orders for Case No: 86-001470