STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY'S SEAFOOD, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-2394

) DEPARTMENT OF NATURAL ) RESOURCES, )

)

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:

For Petitioner: Michael I. Rose, Esquire

Suite 303, Roberts Building

28 West Flagler Street Miami, Florida 33130

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399

BACKGROUND AND PROCEDURAL MATTERS

This case began on May 5, 1986, when Petitioner's application for a wholesale license to sell saltwater products was denied. This denial was based upon Petitioner's alleged failure to furnish satisfactory evidence of a law abiding reputation as required by Section 370.07(3)(d), Florida Statutes. On June 23, 1986, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the final hearing Petitioner offered the testimony of one witness, Henry Torres. Petitioner's exhibits 1 and 2 were admitted into evidence. Respondent relied upon a Stipulation filed October 14, 1986, and offered one composite exhibit which was admitted into evidence.

After the hearing, Respondent 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 Petitioner's wholesale dealer's license should be approved for renewal.

FINDINGS OF FACT

Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact:

1. Henry's Seafood, Inc. was established and began doing business in 1978. From its inception Henry Torres has served as president of the company. Petitioner ceased doing business in May of 1986 when its application to renew its whole sale license to sell salt water products was denied by Respondent.

   
   

2. On November 25, 1985, Henry Torres entered a negotiated plea of guilty to knowingly transporting with the intent to sell, offering for sale, and knowingly selling in interstate commerce approximately 120 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 law. As a result of the plea, a conviction was entered and Mr. Torres was required to pay a fine in the amount of $10,000.

   
   

3. On November 25, 1985, Petitioner, Henry's Seafood, Inc., entered a negotiated plea of guilty to the same charge described in Finding of Fact, paragraph 2. Petitioner was then found guilty and was placed on probation for two years.

   
   

4. The negotiated pleas entered by Petitioner were done in the interests of minimizing costs relating to the defense of the criminal actions. Moreover, said pleas were entered with the express understanding that Petitioner would be allowed to continue in business. Additionally, it was the intention of the trial judge in imposing sentence that Petitioner be allowed to continue in business.

   
   

5. There was never a factual determination that Petitioner did possess undersized lobster tails. In fact, Petitioner received payment for some of the lobster tails which had been seized. Mr. Torres denied having violated either the Lacy Act or Florida Law. The lobster tails were not the product of Florida but had been caught in waters elsewhere. The lobster tails seized from Henri's were combined with all of the lobsters seized from other business. It was impossible to determine how many, if any, were undersized.

   
   

6. When Petitioner applied for the renewal of its license, a disclosure was given as to the conviction described in Findings of Fact, paragraphs 1 and 2.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has juris- diction over the parties and the subject matter of these proceedings.

   
   

8. Section 370.07(S)(a) Florida Statutes (1983) provides that a license issued to a seafood dealer under the provisions of the Chapter may be revoked:

   
   

   1. By the division upon the conviction of the person, to whom

      issued, of any violation of the laws of regulations designed for the conservation of fish, seafood, or other products of the fresh or salt waters of this state;

   2. Upon conviction of the person, to whom issued, or knowingly

      dealing in, buying, selling, transporting, possessing, or taking any fish, seafood, or saltwater product, at any time and from any waters in violation of the laws of this state; or

   3. 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 to dealing in, buying, selling, transporting, possession, or taking of fish, seafood, or saltwater products.

      
      

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

   
   

   1. Intent. It is the intent of the Legi- slature to maintain the crawfish industry for the economy of the sate 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.

   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 cray- fish) 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.

   
   

10. The proof is clear that Petitioner received a conviction which constitutes grounds for the revocation of its license under Section 370.07(5) Florida Statutes. However, the negotiated plea was done, not out of an admission of guilt for the underlying charge, but as an economically expedient end to a criminal prosecution. Petitioner understood the plea entered in the criminal proceedings was to allow it to continue in business.

11. Furthermore, there was never proof that the lobster tails seized from Petitioner's plant were undersized. To the contrary, at least some were legal because Petitioner was paid from the sale. How many, if any, were undersized is pure speculation.

    
    

12. The mitigating factors of Petitioner's fine ($10,000) and the fact that it has been out of business since May, 1986, should be considered in this case.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Natural Resources enter a Final Order approving Petitioner's renewal application and placing said license on probation for a period of two years.

DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(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. 86-2394

Rulings of the Proposed Finding of Fact submitted by Respondent

1. Rejected, outside the scope of evidence Submitted at the final hearing.

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: 86-002394

Orders for Case No: 86-002394