STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAME AND FRESHWATER FISH ) COMMISSION, )

)

Petitioner, 1/ )

)

vs. ) CASE NO. 87-1883

)

ROBERT W. HOYT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held before William R. Cave, a duly designated Hearing Officer of the Division of Administrative Hearings on July 27, 1987 in Gainesville, Florida. The issue for determination is whether the Respondent's pound net registration should be permanently revoked for the reasons set forth in Petitioner's administrative Complaint letter of March 30, 1987, to Respondent.

For Petitioner: Don W. Davis, Esquire

General Counsel

Florida Game and Fresh Water Fish Commission

620 South Meridian Street Tallahassee, Florida 32399-1660

For Respondent: Gary S. Edinger, Esquire

Hankin & Beverly, P.A.

305 Northeast First Street, Suite 1 Gainesville, Florida 32601

The parties stipulated to the facts attested in Petitioner's March 30, 1987 administrative complaint letter to Respondent.

Petitioner's exhibits numbered 1 and 2 were received into evidence.

Respondent offered mitigation testimony in his own behalf. Respondent offered no documentary evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

The following are the facts to which the parties have stipulated:

1. Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission).

   The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules.

   
   

2. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986.

   
   

3. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida.

   
   

4. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation.

   
   

   Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found:

   
   

5. That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00.

   
   

6. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules.

   
   

7. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

8. Pursuant to Section 120.57(1), Florida Statutes, the Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding.

   
   

9. Rule 39-5.002(1)(k), Florida Administrative Coda authorizes the Commission to issue a permit for the use of certain fishing devices listed under Rule 39-23.003, Florida Administrative Code.

   
   

10. Rule 39-23.003, Florida Administrative Code, in pertinent part provides as follows:

    
    

    1. Persons properly licensed under Section 372.65, Florida Statutes, may use certain commercial fishing devices only in the manner and in the areas specified in this rule. Any game fish taken by these devices shall be immediately returned to the water unharmed. Any non-game fish may be possessed together

       with any device listed in this rule with the exception of gill nets.

       * * *

       (3) Pound nets: The use of pound nets shall be prohibited, except that established pound net sites registered with the commission by December 31, 192 may be fished only by the registered claimant or his designee. Such pound net registration shall not be transferable to any other person. (e.s.)

       
       

11. Rule 39-5.004, Florida Administrative Code authorizes the Commission to revoke "a permit issued under the provision of Rule 39-5.002" for, among other things, failure to comply with Chapter 372, Florida Statutes and the rules of the Commission, and for the forfeiture of such permit by the permittee for, among other things, conviction of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission.

    
    

12. Petitioner has met its burden of proof to show that Respondent was convicted of a violation of the Commission rules and thereby subjecting his pound net certification to revocation by the Commission. However, permanent revocation, as the Petitioner suggests as a penalty, appears to be too severe in light of the mitigating circumstances, the penalty already extracted and the fact that Rule 39-23.003(3), Florida Administrative Code would prevent the Respondent from ever obtaining pound net permits again. Cf. Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA Fla. 1962). In making a recommendation for the penalty to be imposed, mitigating circumstances should be considered. See Pauline v. Borer, 274 So.2d 1, 3 (Fla. 1973).

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore,

RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986.

Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida.

WILLIAM R. CAVE

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 11th day of August, 1987.

ENDNOTE

1/ Accordance with provisions of section 28-6.009(4), Florida Administrative Code, the agency administrative complaint is deemed the petition. Hence, designation of the agency as Petitioner and Hoyt as Respondent is effected throughout this document to conform with the aforementioned model rule provision, Such designation correction is also hereby effected in regard to any other documents previously filed in this cause where parties respondent and petitioner are incorrectly denominated.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1883

The following constitutes my specific rulings pursuant to section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this Case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 3.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1-2. Adopted in Finding of Fact 1.

1. Adopted in Finding of Pact 2.

2. Adopted in Finding of Pact 2.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 5.

5. Adopted in Finding of Fact 4.

6. Adopted in Finding of Fact 6.

9-10. Adopted in Finding of Fact 7.

COPIES FURNISHED:

Don W. Davis, Esquire General Counsel

Florida Game and Fresh Water Fish Commission

620 South Meridian Street Tallahassee, Florida 32399-1660

Gary S. Edinger, Esquire Hankin & Beverly, P.A.

305 Northeast First Street Suite 1

Gainesville, Florida 32601

Colonel Robert M. Brantly Executive Director Florida Game and Fresh

Water Fish Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

GAME AND FRESH WATER FISH COMMISSION

FLORIDA GAME AND FRESH ) WATER FISH COMMISSION, )

)

Petitioner, ) DOAH Case No.: 87-1883

)

ROBERT W. HOYT, )

)

Respondent. )

)

FINAL ORDER

UPON DUE NOTICE to all parties, this cause came before the Game and Fresh Water Fish Commission on September 10, 1987, in Destin, Florida, for consideration of the Recommended Order issued by the hearing officer, and the exceptions filed thereto, in the case of Game and Fresh Water Fish Commission vs. Robert W. Hoyt, DOAH Case No.87-1883. A copy of the Recommended Order is attached hereto and designated as Exhibit A.

The Petitioner Commission was represented by Don W. Davis, Esquire. No appearance was made before the Commission for Respondent.

Upon consideration of the Recommended Order, Petitioner's Exceptions to the Recommended Order and a review of the complete record, the Commission makes the following findings and conclusions of law:

FINDINGS OF FACT

1. The Hearing Officer's findings of facts, set forth in Exhibit A, are approved, adopted, and incorporated herein by this reference.

   
   

2. There is competent, substantial evidence to support the Commission's findings of fact.

CONCLUSIONS OF LAW

The hearing officer's conclusions of law set forth in Exhibit A are approved, adopted and incorporated herein by reference. However, the hearing officer's

recommended penalty is rejected by the Commission as being too lenient under the facts of this case. The Commission is of the opinion that Respondent's conduct merits the imposition of a revocation of his pound net registration for a period of five years beginning December 23, 1986, provided Respondent may petition the Commission for a review of this revocation and possible reinstatement of his pound net privilege at the conclusion of a two and one half (2 1/2) year period from the date of revocation as aforestated, upon an affirmative showing by Respondent to the Commission that he has not been convicted of any violation of any Commission rule or state statute relating to wildlife or fresh water aquatic life since the date of this Order, or had any such violation disposed of under section 921.187, Florida Statutes, with or without an adjudication of guilt.

The reasons for the Commission's adoption of this more stringent penalty are those articulated in the Petitioner's Exceptions to the Recommended Order, a copy of which is attached hereto, incorporated by this reference and designated as Exhibit B

WHEREFORE, it is ORDERED and ADJUDGED that the pound net registration at Robert

W. Hoyt is hereby revoked for a five (5) year period commencing December 23, 1986, with the provision that he may seek review of such revocation and reinstatement of his pound net registration by the Commission upon expiration of a period of two and one half (2 1/2) years from commencement of the revocation period aforestated upon an affirmative showing by him that he has not been convicted of any violation of state statute or Commission rule relating to wildlife or fresh water aquatic life or had any such charged violation disposed of under Section 921.187, F.S., with or without adjudication of quit. Since the date of this order. The parties are hereby notified they may appeal this order by filing one copy of a notice of appeal with the office of the Commission's Executive Director and filing a filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date of this Order. DONE and ORDERED this 24th day of September, 1987.

ATTEST:

Agency Clerk THOMAS L. HIRES, Chairman Florida Game and Fresh Water

Fish Commission

Commissioners Humphrey, Rainey, Bostick and Wright concur. COPIES FURNISHED:

Don W. Davis, Esquire Florida Game and Fresh Water

Fish Commission

620 South Meridian Street Tallahassee, Florida 32301

Gary Edinger, Esquire

305 North East 1st Street Suite 1

Gainesville, Florida 32601

Docket for Case No: 87-001883

Orders for Case No: 87-001883