STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIDI'S SEAFOOD CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4512

) 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:

APPEARANCES

For Petitioner: Michael I. Rose

Suite 303, Robert Building

2 West Flagler Street Miami, Florida 33130

For Respondent: Henri C. Cawthon

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

BACKGROUND AND PROCEDURAL MATTERS

This case began on October 16, 1986, when Petitioner received notice that its application for renewal of its Monroe County wholesale seafood dealer's license was being denied. The denial was based on the fact that the corporation had been adjudicated guilty of the federal offense of transporting, with intent to sell, undersized lobster tails in violation of Section 370.14(2)(a)(1) Florida Statutes.

At the final hearing Petitioner submitted Exhibit 1 which has been received into evidence and considered in this cause. Petitioner presented the testimony of Rolando Suarez, Jr.

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 is entitled to the renewal of its application for a wholesale dealer's license for its Monroe County license (WD 000988). The issues of discipline against the Monroe license and denial of the renewal of its Dade license (WD 000008) are addressed in Case No. 86-1470.

FINDINGS OF FACT

Based upon the testimony of the witness and the documentary evidence received at the hearings I make the following Findings of Fact:

1. On January 9, 1986, Didi's Seafood Corporation pled guilty in federal court 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) which is known as the Lacy Act. Respondent was then convicted as charged for the offense of knowingly transporting with the intent to sell and offer 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.

   
   

2. 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 and is the subject matter of a separate proceeding.

   
   

3. 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 1.

   
   

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

   
   

5. 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.

   
   

6. Didi's Seafood Corporation pled guilty to the federal charges described in Finding of Fact paragraph 1 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.

   
   

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

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

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 370.07(5)(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 or 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, of 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.

       
       

11. 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.

    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.

    
    

12. In the case at issue the Department bears the burden of proving by clear and convincing evidence that the alleged concvictions or violations occurred. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. From the document received and the testimony of the witness it is clear that Respondent has established a conviction of the federal Lacy Act.

    
    

14. Petitioner 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, however, no evidence to substantiate the underlying charge of the conviction, i.e. that the Petitioner did, in fact, possess with intent to sell undersized lobster tails. Since Petitioner 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.

    
    

15. Petitioner maintained that it has faithfully observed the laws of Florida. But for the conviction which was entered via Petitioner's negotiated plea, no facts were adduced which would demonstrate that Petitioner failed to observe the laws regulating the dealings selling, transporting, and possession of seafood. Petitioner mistakenly concluded that the plea would not affect its licenses. This mistake resulted in fines and the denial of its application to renew its license. Thus Petitioner has been without a current, valid license and, consequently, out of business.

While Respondent has proved grounds for which revocation may be allowed, there exist sufficient mitigating circumstances in this case to warrant the approval of the license renewal.

RECOMMENDATION

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

That the Department of Natural Resources enter a Final Order granting the renewal of Petitioner's Monroe County license, but placing it 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 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. 86-4512

Rulings of the Proposed Findings of Fact submitted by Respondent:

The unnumbered paragraphs are accepted and, in relevant part, are addressed in finding of fact paragraph 1. The Recommended Order in Case No. 86-1470 is being issued with this Order and does, in fact, address similar questions of fact.

COPIES FURNISHED:

Michael I. Rose, Esquire Suite 303, Robert Building

28 West Flagler Street Miami, Florida 33130

Henri C. Cawthon, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399-3000

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: 86-004512

Orders for Case No: 86-004512