STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

1. E. SCHOELLES, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 88-5989

   ) DEPARTMENT OF NATURAL RESOURCES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was held in this case on March 8, 1989, in Apalachicola, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane R. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: J. Ben Watkins

   Attorney at Law

   41 Commerce Street Apalachicola, Florida 32320

   
   

   For Respondent: Harold A. McLean

   Deputy General Counsel Department of Natural Resources

   3900 Commonwealth Boulevard

   Suite 1003

   Tallahassee, FL 32399 ISSUE

   The issue is whether the Petitioner, W. D. Schoelles, is entitled to a special activity license to use mechanical harvesting devices on his oyster lease.

   
   

   BACKGROUND AND PROCEDURAL MATTERS

   
   

   By its Final Order dated September 28, 1988, the Department of Natural Resources (DNR) denied Petitioner's application for a special activity license to use mechanical harvesting devices on his oyster lease. The grounds for the denial were as follows:

   
   

   1. The Department has found that Lease number 981 appears to be in violation of the lease agreement and the statutory provisions applicable to the lease for failure to maintain the required level of cultivation,

      and is therefore subject to revocation by the Department.

   2. Because the status of Lease Number

981 is currently in question, issuance of a special activity license which would allow mechanical harvesting on that lease would not be proper. It is therefore

ORDERED that the application for a

special activity license to authorize the use of mechanical harvesting implements on Lease Number 981 is hereby DENIED until such time as the status of the lease has been determined. (Emphasis supplied).

This proceeding does not involve any action by the DNR to revoke or otherwise penalize Petitioner or Petitioner's lease for any violation of the lease agreement or applicable statutes.

Petitioner presented no testimony or exhibits. Neither did Respondent, Department of Natural Resources (DNR). The parties instead entered into stipulations of fact which form the basis for the Findings of Fact herein.

No transcript of the proceedings was filed. The Respondent filed its proposed findings of fact and conclusions of law on March 16, 1989. Petitioner waived the filing of proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the holder of Oyster Lease NO. 981. The annual rent for the lease has been paid in full as it became due and the lease is currently in full force and effect.

   
   

2. No formal action has been brought by DNR to revoke this oyster lease.

   
   

3. On June 30, 1988, Petitioner filed a valid and adequate application for a special activity license to use mechanical harvesting implements on this lease.

   
   

4. Petitioner furnished or will furnish a bond payable to the Governor of the State of Florida and approved by DNR in the sum of $3,000.00 as required for issuance of a special activity license.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

6. Section 370.16(15)(b), Florida Statutes, states:

   
   

   Lessees of bedding grounds shall have

   the right to use in such bedding grounds any implements or appliances that they may desire. The division shall require that such

   lessees procure special activity licenses pursuant to S. 370.06 to use such implements and shall require of the lessees that they furnish a bond payable to the Governor of the State of Florida, to be approved by the division, in the sum of $3,000, that such implements or appliances shall not be used on the natural oyster reefs contrary to law.

   When such implements or appliances are used exclusively on private propagating or bedding grounds, no charge shall be made for the license....

   
   

7. Section 370.06(4), Florida Statutes, relates to special activity licenses and states:

   
   

   Any person who seeks to use special gear

   or equipment in harvesting saltwater species must purchase a special activity license as specified by law to engage in such activities. The department may prescribe by rule special terms, conditions, and restrictions for any special activity license.

   
   

8. There is no disagreement that Section 370.16(15)(b) contains only two conditions precedent to the issuance of a special activity license to use mechanical harvesting implements: 1) the applicant must be a leaseholder and 2) the applicant must post the required bond. There is also no contest that the Petitioner has met both of these conditions. On its face, it would appear that the Petitioner is entitled to the license. However, DNR argues that the last sentence of Section 370.06(4) authorizes it to apply another condition, namely: No special activity license may issue to any leaseholder during the pendency of an investigation by the department which is designed to discover whether the leaseholder has engaged in required cultivation activities.

   
   

9. Such a condition has not been enacted as a rule and Section 370.06(4) refers only to the department's authority to impose additional conditions if it does so by rule. Having enacted no such rule, DNR instead argues that it may apply this new condition as emerging incipient policy. What DNR fails to recognize is that the burden of proof is on the agency to explicate and justify its policy in a formal hearing. DNR totally failed to carry this burden. Hence there is no need to address the question of whether DNR is authorized to impose new conditions on the issuance of special activity licenses by application of incipient policy instead of a rule and there is no need to address whether imposition of new conditions to the leases is an impairment of contract.

   
   

10. Finally, it is noted that Section 370.16 (4)(d), Florida Statutes, authorizes the division to revoke leases when the division gathers evidence which conclusively shows a lack of effective cultivation. It would therefore appear that DNR has a remedy available to it. It can bring an action to revoke the lease and, if it is successful, the applicant for a special activity license would no longer meet the condition precedent of being a leaseholder. In this case however DNR has put the cart before the horse.

    
    

11. Petitioner takes the position that his lease is a special case because it was issued by a court and it is therefore not subject to the provisions of

    Chapter 370. He does not believe that he is required to seek a special activity license prior to using whatever implements he wishes to on his lease. However, Petitioner did apply for a special activity license to use mechanical harvesting devices on his lease and his entitlement to that license is the sole issue in this proceeding.

    
    

12. It is concluded that W. D. Schoelles has satisfied all statutory conditions on the issuance of a special activity license to use mechanical harvesting implements on his oyster lease and he is entitled to issuance of the license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order

and therein grant the application of W. E. Schoelles for a special activity license to use mechanical harvesting implements on Oyster Lease NO. 981.

DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5989

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources

The only finding of fact proposed by DNR is rejected as being irrelevant and unsupported by the competent evidence.

COPIES FURNISHED:

Harold A. McLean Deputy General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Suite 1003

Tallahassee, FL 32399

J. Ben Watkins Attorney at Law

41 Commerce Street Apalachicola, FL 32320

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Docket for Case No: 88-005989

Orders for Case No: 88-005989