STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES L. WILSON, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5101

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Bradenton, Florida, by videoconference, on September 13, 1996. The Administrative Law Judge, counsel for Respondent, and Respondent's witness, Mr. Reecy, appeared in Tallahassee. Petitioner and the court reporter appeared in Tampa.

APPEARANCES

For Petitioner: Charles L. Wilson, pro se

9210 West Robson

Tampa, Florida 33615

For Respondent: Louise T. Sadler

Senior Attorney

Department of Labor and Employment Security 2012 Capital Circle, Southeast

Suite 307, Hartman Building Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to additional compensation for fishing nets that he sold to the State of Florida under the Net Buy-Back Program.

PRELIMINARY STATEMENT

By Net Buy-Back Application filed with Respondent, Petitioner sought compensation for nets that he proposed to sell to the State of Florida.

At the hearing, Petitioner called one witness and offered into evidence eight exhibits. Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted. However, no one filed Petitioner Exhibits 5, 6, and 6a, so they are deemed withdrawn. These letters stated that Respondent used seine nets. Their inclusion in the record would not have changed the result.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner is a commercial fisher who is an affected person under the Florida Net Ban, which is set forth in the Florida Constitution, Article X, Section 16.

   
   

2. Section 370.0805(5), Florida Statutes, which became effective on July 1, 1995, establishes the Net Buy-Back Program. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. The Legislature appropriated $20 million to the Seafood Workers Economic Assistance Account (the Account) to fund the payments authorized in Section 370.0805, as well as agency expenses in administering the program. Section 370.0805(3)(b) directs Respondent to purchase nets "according to the availability of funds on a first-come, first-served basis determined by the date of receipt of each completed application."

   
   

3. By Net Buy-Back Application signed on July 5, 1995, and filed with Respondent at 7:39 am on the same day, Petitioner applied to sell nets to the State of Florida. His application form is completely filled out and shows two saltwater-product license numbers, both for vessels.

   
   

4. The application form calls for the applicant to list the "TOTAL NUMBER OF YARDS OF EACH NET TYPE THAT YOU INTEND TO SELL." The form lists five categories of nets: gill (49 meshes or less); gill (50 meshes or more); beach, purse, seine; trawl; and trammel. The former gill net is a shallow-water gill net. The latter gill net is a deepwater gill net.

   
   

5. Petitioner listed on his application "maximum allowed." He did not otherwise fill in the blanks as to types or yardage of nets.

   
   

6. After checking a data base maintained by the Department of Environmental Protection, Respondent found that Petitioner held three saltwater- product licenses. Respondent thus processed Petitioner's application as though he had three licenses, not two.

   
   

7. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 18 nets" and set an appointment for him to turn in the nets on September 14, 1995.

   
   

8. A few days prior to September 14, a representative of Respondent telephoned Petitioner and told him that the net buy-back appointment was canceled and Respondent had shut down the program temporarily in order to make changes.

   
   

9. The problem was that Respondent had discovered that the Account might be exhausted before Respondent had paid for all of the nets that fishers might lawfully seek to sell to the State. Respondent thus canceled Petitioner's appointment and suspended payment on outstanding vouchers while Respondent considered changes in its administration of the program.

   
   

10. The purpose of the Net Buy-Back Program, as provided by Section 370.0805(5)(a), Florida Statutes, was to allow, "[a]ll commercial saltwater products licensees and persons holding a resident commercial fishing license" to apply to Respondent "to receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net

    fishing." The emphasis was on economic assistance. Section 370.0805(5)(a) authorizes Respondent to make payments only "in nonnegotiable amounts not intended to reflect the actual value of the nets."

    
    

11. Section 370.0805(5)(a) assigns payment amounts of $3500 for beach, purse, or seine nets of at least 600 yards in length; $500 for trawls and shallow-water gill nets of at least 600 yards in length; and $1000 for trammel nets of at least 600 yards in length and deepwater gill nets of at least 600 yards in length. Section 370.0805(5)(a) states that, except for trawls, nets of less than 600 yards in length shall be "valued proportionately."

    
    

12. Section 370.0805(5)(c) limits the number of nets that a commercial fisher could sell, based on his annual earnings from the sale of eligible saltwater products. The limits range from four nets, for licensees whose annual earnings average from $2500 to $4999 in earnings, to ten nets, for licensees whose annual earnings average more than $30,000.

    
    

13. Respondent relied on another data base from the Department of Environmental Protection to determine the average yearly earnings of applicants. The Department of Environmental Protection maintains records of each licensee's trip tickets, which disclose earnings.

    
    

14. The only other limit in the statute as to the type and number of nets to be purchased is that, under Section 370.0805(5)(d), "[n]o licensee may be paid for more than two ... trawls."

    
    

15. Respondent reviewed the applications that it received from the initial fishers who filed applications. The purpose of the review was to determine whether the funds in the Account would be sufficient to cover the nets that the State was to be purchasing.

    
    

16. Respondent found from the applications that seine nets represented a small percentage of the nets that fishers intended to sell to the State. Relying on this information, Respondent calculated the potential encumbrance of

    $6.5 million on the Account, based on an average payment that reflected the absence of a significant number of the most expensive seine nets.

    
    

17. Applying liberal eligibility criteria, such as calculating the number of nets that each applicant could sell based on the number of licenses that he held, Respondent raised its estimate of the potential encumbrance to $8.775 million. But in recalculating the potential encumbrance on the Account, Respondent still assumed that the average payment per net would not be affected by a significant number of seines.

    
    

18. Respondent began receiving nets in early August, 1995. Through the first three weeks of August, Respondent purchased seine nets at the relatively low rate that it had anticipated. After this point, fishers started turning in much larger numbers of seine nets than they had listed in their applications.

    
    

19. During this first phase of the program, Respondent paid fishers for whatever types of nets they presented at their net buy-back appointment. Respondent paid a fisher entitled to sell six nets for seine nets if he turned in seine nets, even though he had listed only gill nets on his application.

    
    

20. This policy jeopardized the solvency of the Account because the payments to fishers turning in all seine nets were much greater than the figures that Respondent had used in calculating the potential encumbrance on the

    Account. From the fishers' perspective, the program acquired an element of chance, as applicants with earlier appointment times-which did not necessarily correspond with earlier-filed applications-netted fine catches of economic assistance at the expense of their counterparts, upon whom destiny had bestowed later appointment times.

    
    

21. By late August, the applicants began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Before long, Respondent was purchasing nothing but seines.

    
    

22. After a brief period of trying to stay the course, Respondent decided on September 6, 1995, that it had to take action or else the Account would be exhausted before the State had purchased all of the nets listed on the applications. Respondent immediately suspended the program and developed new criteria to apply to all persons not yet paid for their nets.

    
    

23. As of September 6 (retroactive to August 28), Respondent began the second phase of the Net Buy-Back Program. In this phase, Respondent paid for seine nets, but only up to the greater of the number of seines shown on the application or the number of seines based on past use of seines. Respondent determined the latter figure from the trip tickets, which also contained information as to types of catch, from which Respondent could infer the type of net used. As in the first phase, Respondent continued to insist the fishers turn in seines if they were being paid for seines.

    
    

24. Petitioner's application lists no seine nets. But his application put Respondent on notice that Petitioner sought to sell as many nets, as at high a value, as the law would permit. This would mean seine nets. And based on his possession of three licenses, this would mean 18 seine nets, given Petitioner's earnings during the relevant period.

    
    

25. Petitioner claimed that he turned in seine nets. If turned in during the first or second phase of the program, Respondent would have treated these nets as seine nets. But these nets were turned in during what became the third phase of the Net Buy-Buyback Program.

    
    

26. After canceling Petitioner's net buy-back appointment, Respondent sent Petitioner a letter, setting another net buy-back appointment for October 2.

    The letter states that Respondent would purchase a total of 18 nets, but none could be a seine net.

    
    

27. Dissatisfied with the effects of the restrictions introduced by the second phase of the program, Respondent added a third phase by promulgating an emergency rule defining "seine nets," effective October 2, 1995. This third phase, which did not change Respondent's policy of paying for the greater number of seines as shown on the application or the trip tickets, restricted the kinds of nets that fishermen could turn in as seine nets.

    
    

28. Rule 38BER95-1 provides that, for the purpose of "the implementation of the Net Buy-Back Program" described in Section 370.0805(5):

    
    

    1. "Gill net" means a wall of netting suspended vertically in the water, with floats across the upper margin and weights along the bottom margin which captures fish by entangling them in the meshes, usually by the gills. Any net offered for the net

       buy-back program that consists of at least fifty-one percent (51 percent) gill net, shall be considered a gill net.

    2. "Seine" means a small-meshed net suspended vertically in the water, with floats along the top margin and weights along the bottom margin, which encloses and concentrates fish, and does not entangle them in the meshes. No net offered for the net buy-back program shall be considered a seine if the wings are composed of entangling mesh.

       * * *

       THIS RULE SHALL TAKE EFFECT IMMEDIATELY

       UPON BEING FILED WITH THE DEPARTMENT OF STATE.

       
       

       Effective Date: October 2, 1995

       
       

29. Under the emergency rule, Respondent's nets were not seines, but were gill nets because they were at least 51 percent, by area, gill net.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

31. In his application, Petitioner asked the State of Florida to purchase as many of the most valuable nets as the law would permit. Petitioner's application is unusual in this respect.

    
    

32. Petitioner's application is unusual in another respect. It was filed prior to 8:00 am on the first day that Respondent accepted applications. The offices taking applications were to have opened at 8:00 am, so it is quite clear that Petitioner's application was among the very first filed.

    
    

33. Respondent legitimately interpreted the Legislature's directive of first-come, first-served to refer not just to the date of filing of applications, as the statute states, but to the time of filing.

    
    

34. As events developed, Respondent had to revise the program twice while Petitioner's claim was pending. Two possible reasons dictated these revisions. First, fishers began to turn in larger numbers of seine nets than they had listed on their applications.

    
    

35. Second, Respondent did not calculate the potential encumbrance on the Account in the same fashion as it paid for nets. In other words, if, as happened, Respondent calculated the potential encumbrance based on the types of nets listed in the applications, then Respondent should have restricted its purchases to the types of nets listed in the applications, or else risk the insolvency of the Account. If, as here, Respondent chose to purchase nets without regard to the types of nets listed in an application (to the extent that the trip tickets showed past seine use), then Respondent should have recalculated the potential encumbrance in the same fashion.

36. In any event, Petitioner did not contribute in any way to this situation. His application effectively informed Respondent that he wanted to sell seine nets and as many as the law would allow.

    
    

37. Additionally, Petitioner filed his application among the very first to be filed. In this respect, Petitioner's case is also unusual because it avoids the typical problem of trying to show the priority of a fisher's application among all the applications filed.

    
    

38. Had Respondent not ignored the clear requirements of the law as to first-come, first-served payments, Petitioner would have clearly been entitled to payment under the first phase of the Program. This means that he would have escaped the requirements of the second phase, as to limiting the number of seines to historic use based on the trip tickets, and the third phase, as to limiting the types of nets that Respondent would treat as seines when the nets were turned in.

    
    

39. Petitioner proved an eager participant in the Net Buy-Back Program, and Respondent should not be allowed to reduce the payment due Petitioner by reliance on Respondent's failure to honor the clear requirements of the law in order to impose additional requirements that were not present in the program when Respondent should have paid Petitioner's claim.

RECOMMENDATION

It is

RECOMMENDED that the Department of Labor and Employment Security enter a final order directing payment from the Account to Petitioner of the difference between the amount he has already received and the amount he would have received had all 18 of the nets that he delivered to Respondent been valued as seine nets.

ENTERED on October 4, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this October 4, 1996.

COPIES FURNISHED:

Secretary Douglas L. Jamerson

Department of Labor and Employment Security

303 Hartman Building

2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

Edward A. Dion General Counsel

Department of Labor and Employment Security

303 Hartman Building

2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

Charles L. Wilson, pro se 9210 West Robson

Tampa, Florida 33615

Louise T. Sadler Senior Attorney

Department of Labor and Employment Security 2012 Capital Circle, Southeast

Suite 307, Hartman Building Tallahassee, Florida 32399-2189

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF UNEMPLOYMENT COMPENSATION

CHARLES S. WILSON,

Petitioner,

vs. DOAH Case No. 95-5101

DLES Case No. 97-001DUC

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY,

Respondent.

/

FINAL ORDER

Charles S. Wilson is a commercial saltwater products licensee who seeks economic assistance for nets rendered illegal or useless by the constitutional limitation on marine net fishing. Based on a review of Wilson's Net Buy-Back Application and his net usage as verified by trip tickets, the Department determined that Wilson was eligible to sell 10,800 yards of net, other than seine net, and issued a voucher for $14,026. Wilson disputes the Department's decision to exclude the higher-valued seine net and seeks compensation in the amount of $63,000.

This cause came before me for the purpose of issuing a Final Order, following a Recommended Order issued by an Administrative Law Judge (ALJ) of the Division of Administrative Hearings. 1/ The ALJ recommended that the Department pay to Wilson "the difference between the amount he has already received and the amount that he would have received had all 18 of the nets that he delivered to Respondent been valued as seine nets." I attach a copy of the Recommended Order. After reviewing the record in its entirety, I accept in part and reject in part both the findings of fact and legal conclusions and dismiss Wilson's petition.

The statutory scheme.

The voters of Florida adopted an initiative petition that limited marine net fishing effective July 1, 1995. Art. X, s 16, Fla. Const. To partially compensate commercial saltwater products licensees for nets rendered illegal or useless by the constitutional limitation, the Florida Legislature enacted the net ban economic assistance program. Further, the Legislature delegated to the Department the authority to administer the program by approving applications for economic assistance. s 370.0805(5), Fla. Stat. (1995).

As part of the net ban economic assistance program, the Legislature enacted the net buy-back program, which provides:

1. All commercial saltwater products licensees and persons holding a resident commercial fishing license pursuant to

1. 372.65 shall, upon application to and approval of the Department of Labor and Employment Security, receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net fishing; provided, however, that only commercial saltwater products licensees and persons holding a resident commercial fishing license pursuant to s. 372.65 who can document an annual gross income of $2,500 or more from net-caught landings of saltwater products during the period beginning July

   1, 1991, and ending June 30, 1995. Such assistance shall be in nonnegotiable amounts not intended to reflect the actual value of the nets. Economic assistance to compensate such licensees for such nets, to be known as the net buy-back program, shall be as follows:

   1. Deep water gill nets at least 600 yards in length and composed of 50 mesh or more,

      $1,000.

   2. Shallow-water gill nets at least 600 yards in length and composed of less than 50 mesh, $500.

   3. Trammel nets at least 600 yards in length, $1,000.

   4. Beach, purse, and seine nets at least 600 yards in length, $3,500.

   5. Shrimp trawls of at least 500 square feet, $500. Nets described in subparagraphs

1. through 4. which are less than 600 yards in length shall be valued proportionately.

* * *

1. The number of qualifying nets for which a licensee may be paid shall be limited based on the licensee's average annual gross income attributable to the sale of eligible saltwater products during the 3-year period of July 1, 1991, through June 30, 1994, as follows:

   1. Licensees averaging from $2,500 to

      $4,999 annually may not be paid for more than four nets.

   2. Licensees averaging from $5,000 to

      $9,999 annually may not be paid for more than six nets.

   3. Licensees averaging from $10,000 to

      $19,999 annually may not be paid for more than eight nets.

   4. Licensees averaging from $20,000 to

      $29,000 annually may not be paid for more than eight nets.

   5. Licensees averaging more than $30,000 annually may not be paid for more than 1.0 nets.

2. No licensee may be paid for more than two shrimp trawls.

s 370.0805(5)(a), (c), and (d), Fla. Stat. (1995).

The application procedure appears in the statute itself:

Each commercial saltwater products licensee, and each person holding a resident commercial fishing license pursuant to s. 372.65, who seeks economic assistance through the net buy- back program under this section shall apply

to the Department beginning July 1, 1995, and ending December 31, 1995. Upon receipt

of a completed application, eligibility will be established and the applicant will be scheduled to present eligible nets at the nearest available net-recovery facility.

Nets will be purchased according to avail- ability of funds on a first-come, first-served basis determined by the date of receipt of each completed application.

s 370.0805(3)(b), Fla. Stat. To fund net acquisition and the costs of administration, the Legislature appropriated $20 million in the Seafood Workers Economic Assistance Account, within the Special Employment Security Administration Trust Fund (Fund). Ch. 95-414, ss 3 and 4, 1995 Fla. Laws 2660,

2664.

Administration of the net buy-back program and procedural history of the case.

The net buy-back program lasted from July 1 through December 31, 1995. Each applicant was required to identify his or her Saltwater Product License Number and to complete a "Net List," specifying the "total number of yards of each net type that [he or she] intend to sell." Petitioner's Exhibit 1 (emphasis in original).

Initially, the Department estimated the encumbrance on the Fund on the basis of Net Buy-Back Applications filed by licensees between July 5 and August

20. For a licensee who specified a type of net for sale, the Department calculated the encumbrance on the Fund based on the net values prescribed in section 370.0805(5)(a). For a licensee who failed to specify the type of net for sale, the Department relied on information provided by the Department of Environmental Protection (DEP). That information allowed the Department to verify the number of Saltwater Products Licenses held by the licensee and to determine the licensee's average annual gross income attributable to the sale of saltwater products during the three-year period July 1, 1991, through June 30, 1994. With this information, the Department could establish the number of nets that the licensee was eligible to turn in, Tr. 46, and to establish eligibility based on $1,000 per net. Tr. 47. In this manner, the Department estimated a fund encumbrance of between $6.5 and $8.7 million. Tr. 45-47.

The Department opened the net buy-back program the first week of August 1995. Tr. 53. The program had three phases. Phase One occurred during August

3 and September 6, 1995. As indicated above, for those applicants who completed a Net List, the Department issued vouchers based on the value of the nets listed. That is, "if the fisher[s] listed on the application[s] that they intended to sell seines, they got credit for selling seines." Tr. 58 and 59.

Wilson is a commercial saltwater products licensee who filed an Application on July 5, 1995. He indicated that he had two Saltwater Product Licenses.

Wilson left blank the Net List part of the Application, and beside it, he wrote "maximum allowed." Petitioner's Exhibit 1.

After review of DEP information, the Department credited Wilson with having three, rather than two, licenses. It informed him by letter dated August 8, 1995 that he was eligible to receive compensation for eighteen nets and scheduled a buy-back appointment on September 14, 1995 in Tampa, Petitioner's Exhibit 2, one of twenty-one net recovery sites operated throughout the state.

Tr. 66.

On about August 21, the Department observed that licensees were turning in seines at the recovery sites in numbers disproportionate to the numbers listed on the applications. With seine nets worth three and one half times the value of deep water gill nets, the Department decided to monitor this turn of events. Tr. 54.

The Department started Phase Two on September 6 by imposing a temporary moratorium on net recovery. It determined that vouchers totaling about $18.3 million had been issued, with administrative costs yet to be determined. The Department reviewed information newly-provided by DEP, which identified for each licensee the number of trips taken during the statutory three-year period and the gear used on those trips. The Department identified between 200 and 300 applicants that turned in seines in the Phase One and whose usage of seines was not confirmed by DEP historical information. Tr. 57-58. It found that " certain fishers had been altering the nets with which they were fishing in an effort to convert them into seine nets . . . . In effect, fishers were sewing a small amount of small mesh onto either side of a gill net . . . in an effort to obtain more compensation tha[n] what was intended by the law." 21 Fla. Admin.

Weekly 7055 (Oct. 13, 1995); Tr. 63.

As a result, the Department acted to protect the Fund. The Department issued adjusted vouchers to those licensees who previously turned in nets, giving credit for deep water gill nets where the review showed that seines were not used. Tr. 58. Had the Department not so acted, there would have been no money in the Fund to compensate the remaining 225 licensees, including Wilson, who had not yet turned in nets. Tr. 58-59.

Also, effective October 2, 1995, the Department adopted an emergency rule to assure that it, in conjunction with the Florida Marine Patrol, could adequately identify qualifying nets and to more fully specify the nets eligible for compensation under the program. Fla. Admin. Code R. 38BER95-1, Net Definitions. Wilson did not challenge the Department's emergency rule. Tr. 31.

The Department resumed the recovery program in Phase Three, and set up appointments beginning October 2 for licensees, including Wilson, who had not yet turned in nets. By letter, the Department scheduled an appointment for Wilson to turn in his nets in Tampa on October 2. "Based upon the application you signed and submitted and a review of the trip tickets issued under your Saltwater Products Licensee(s)," the Department wrote, "you may turn in a total of 10,800 yards of any net other than seine net." Petitioner's Exhibit 3 (emphasis in original). The letter further advised Wilson of his right to appeal this determination.

Relying on the definitions of eligible nets prescribed in the emergency rule and the payment criteria developed in Phase Two, the Department determined the voucher amount for the remaining applicants. For instance, if the licensee did not express his or her intent to sell seine nets in the application or if the information provided by DEP did not verify that the licensee used seine nets, then the licensee was ineligible to sell seine nets. Tr. 61-62. The Department estimated that the buy-back of Wilson's nets would encumber the Fund by $18,000, that is, $1,000 for each of eighteen nets. Tr. 46.

On his scheduled appointment date, Wilson turned in 10,800 yards of small and large mesh gill nets and trammel nets, which the Department valued at

$14,026. Petitioner's Exhibit 4. Wilson received payment in that amount. Tr.

22. Also on that date Wilson filed a Net Buy-Back Dispute Form, claiming that

he turned in 10,800 yards of what he considered to be legal seine nets, Petitioner's Exhibit 4(a), and filed a formal written protest. 2/ Petitioner's Exhibit 5.

Wilson received an administrative hearing on September 13, 1996 and the ALJ issued his Recommended Order on October 4, 1996, which the Department now

considers under chapter 96-159, section 19, 1996 Florida Laws (to be

codified at s 120.57(1)(j), Fla. Stat. (Supp. 1996)). Neither party filed exceptions.

FINDINGS OF FACT

The ALJ found that Wilson is an "affected person" under article X, section 16, Florida Constitution, apparently believing that this cause derives from the Constitution. R.O. at 2, para. 1. The Department acknowledges that Wilson's "substantial interests" were determined by the Department's appointment letter, Petitioner's Exhibit 3, and that Wilson has a right to an administrative determination under section 120.57(1), Florida Statutes, regarding the validity of that action. However, the letter interpreted the statutory net-ban provisions, not the constitutional amendment. And the statute, rather than the constitution, provides remedial relief to licensees affected by the constitution. As such, the Department regards the ALJ's finding that Wilson is an "affected person" under the constitution to be a legal conclusion without significance here, for it is irrelevant to these proceedings.

The Department rejects the part of Paragraph 3 that finds Wilson's "application form is completely filled out." This finding is not based on competent substantial evidence. Ch. 96-159, s 19, 1996 Fla. Laws

(providing that an agency may reject or modify findings in a recommended order, if, after reviewing the entire record, it states with particularity that the findings were not based on competent substantial evidence) (to be codified at 120.57(1)(j), Fla. Stat. (Supp. 1996)); Martuccio v. Department of Professional Regulation, Bd. of Optometry, 622 So.2d 607, 609 (Fla. 1st DCA 1993).

Indeed, the ALJ overlooked relevant record evidence to the contrary.

Wilson neglected to complete the Net List, which requires applicants to list the "total number of yards of each net type that you intend to sell." (Emphasis in original). The ALJ noted that Wilson listed on his application "maximum allowed," but he also found that Wilson "did not otherwise fill in the blanks as to the types or yardage of nets." R.O. at 3, para. 5. Furthermore, Wilson testified that he provided no information regarding net types on his application, Tr. 21 and 25, and explained that "if I put something down there, that was the only thing they'd allow me to put in [so figured if I put nothing], the State would determine what I could turn in and that's what I'd turn in." Tr.

26 [emphasis added].

Whether an application is complete for program purposes is a question of law that is within the province of the Department to determine. The Legislature expressly provided that eligibility for economic assistance under the net buy- back program will be established on the basis of a "completed" application. s 370.0805(3)(b), Fla. Stat. The Legislature delegated to the Department the sole authority to administer the program and to determine the eligibility of applicants. s 370.0805(1) and (3), Fla. Stat. Interpreting these sections, the Department concludes that Wilson's application is incomplete and further rejects Paragraph 3 to the extent that it amounts to a wrong legal conclusion. See Williams v. Department of Management Servs. Div. of Retirement, 678 So.2d 1282, 1283 (Fla. 1996)(declaring that a reviewing court will defer to an agency's

interpretation of statutes when consistent with legislative intent, supported by competent substantial evidence, and not clearly erroneous) (citations omitted); Department of Agriculture and Consumer Servs. v. Edwards, 654 So.2d 628, 531-32 (Fla. 1st DCA) (same), review denied, 662 So.2d 931 (Fla. 1995).

In Paragraph 10, the ALJ interprets section 370.0805(5)(a) as emphasizing economic assistance to licensees. This is a legal conclusion without textual statutory basis. Read in its entirety, section 370.0805 expresses the intent of the Legislature to accomplish multiple aims. On the one hand, it authorizes compensation to eligible licensees whose commercial fishing gear was rendered illegal or useless. On the other hand, it requires the Department to administer the program in a fiscally sound manner. See e.g. s 370.0805(3)(b), Fla. Stat. (providing that nets will be purchased according to availability of funds); (5)(establishing limits on eligibility and prescribing levels of compensation); and (7)(delegating rulemaking power to Department to accomplish the aims of the section). The Department interprets section 370.0805 to be without legislative emphasis on economic assistance. In this regard, the ALJ erroneously found that the Department should have preferred rather than rejected Wilson's demand for compensation for seines when trip tickets did not verify Wilson's usage of seines. Compare s 370.0805(4)(c), Fla. Stat. (expressly providing that only landings reflected on trip tickets shall be used to determine eligibility for economic assistance for loss of income).

There is no competent substantial evidence to support the finding in Paragraph 16 that the Department calculated the potential encumbrance of $6.5 million "based on an average payment that reflected the absence of a significant number of the most expensive seine nets." The Department did not calculate an "average payment," but estimated the encumbrance based on the gear that the licensees listed in their applications. Tr. 45.

Next, the ALJ found that the Department policy in Phase One jeopardized the solvency of the Fund because it paid licensees for seines who turned in seines even though they listed gill nets on their applications. R.O. at 6, paras. 19 and 20. Rather than Department action jeopardizing the solvency of the Fund, the record shows that the fiscal crisis was caused by licensees altering nets to obtain compensation for higher-valued seines. 21 Fla. Admin. Weekly 7055 (Oct. 13, 1995); Tr. 63. The notion that licensees with earlier appointments "netted fine catches of economic assistance at the expense of their counterparts" misstates testimony that the Department reissued vouchers to 200-300 licensees served in Phase One, if in Phase Two, DEP records showed that the licensee had no history of fishing with seines. In those instances, the Department disallowed compensation for seines not confirmed by DEP usage information. Tr. 58.

The Department rejects the ALJ's finding that Wilson's application put the Department on notice that he sought to sell "as many nets, [as at high a value], as the law would permit. This would mean seine nets." R.O. at 7, para. 24 [emphasis added]. Wilson's application is noncommittal. Wilson testified that the entry on his application "maximum allowed" meant the maximum yards of net.

Tr. 19 ("maximum allowed as a total number of yards that I wish to turn in"); Tr. 26 ("maximum yardage allowed"). Moreover, he did not know what kind of gear the Department would allow. Tr. 26 ("[W]e had no idea what we could turn in . .

. . I was terribly afraid that if I put something down there, that was the only thing they'd allow to put in . . . ."). The record establishes that Wilson intended to sell as much yardage of net, without regard to type, and that the Department would later determine type. Contrary to the ALJ's finding, the

record does not establish that Wilson's application put the Department on notice that he intended to sell exclusively seine nets.

In Paragraph 25, the ALJ found that Wilson "claimed that he turned in seine nets" and the Department would have treated Wilson's nets as seine nets if he had turned them in during Phase One or Two. This finding is subject to criticism. First, the finding is based on the assumption that Wilson would have turned in the identical nets on September 14, 1995 that he turned in on October

2. There is no record support for this assumption. Moreover, the finding is based on irrelevant speculation. Assuming for argument that Wilson had turned in eighteen seines during Phase One and that the Department had issued a voucher for eighteen seines, the record establishes that the Department's practice would have been to reevaluate his voucher in Phase Two and to verify net usage based on DEP trip ticket information. Tr. 58. That information showed that Wilson had not used seines during the three-year period prescribed in the statute. Tr.

62. Consequently Wilson would not have qualified for compensation at the seine rate in Phase One.

Second, the nets that Wilson turned in on October 2 did not meet the definitions adopted in the emergency rule. R.O. at 9, para. 29; Tr. 64. Wilson did not challenge the Department's emergency rule, Tr. 31, which was in effect at the time he sold nets to the State. Tr. 64. Essentially, the ALJ erroneously found that the emergency rule did not apply on October 2, even though Wilson did not petition for an administrative determination of its validity.

Third, Wilson's petition challenges the Department's appointment letter, which applied the eligibility criteria of Phase Three. Petitioner's Exhibit 5. Without authority, the ALJ recrafts Wilson's petition to seek application of agency policy no longer in effect. The Department's administration of the program under Phase One and Two is irrelevant to action taken by the Department under its emergency rule in Phase Three.

Except as noted above, the Department accepts the ALJ's factual findings.

CONCLUSIONS OF LAW

The Department rejects the ALJ's conclusion that Wilson asked the State "to purchase as many of the most valuable nets as the law would permit," R.O. at 9, para. 31, and the conclusion that Wilson put the Department on notice that "he wanted to sell seine nets and as many as the law would allow." R.O. at 9, para.

36. These conclusions lack a factual predicate in the record. The application required licensees to indicate the "total number of yards" for sale. The ALJ's gloss, construing the entry "maximum allowed" essentially to mean "total number of dollars," admits that Wilson did not answer the question posed of applicants. Moreover, this construction contradicts the transcript, which includes Wilson's testimony that he used the phrase "maximum allowed" to express his intent to sell whatever number of yards of nets that the Department would allow. Therefore, Wilson did not put the Department on notice of any intent to sell any particular class of net.

In Paragraphs 34 and 35, the ALJ concluded that two reasons "dictated" the Department's revisions of the program during the pendency of Wilson's application, including that the Department miscalculated the potential encumbrance on the Fund. The record indicates that only single reason drove the decision to modify the administration of the program. The Department learned that "there were fishers [sewing] pockets into their gill nets," which they sold

as higher-valued seines. Tr. 63; 21 Fla. Admin. Weekly 7055 (Oct. 13, 1995). The Department modifies these conclusions accordingly. Further, the Department rejects as gratuitous dicta the ALJ's suggestions that the Department "should have restricted its purchases to the types of nets listed in the applications, or . . . . should have recalculated the potential encumbrance in the same fashion."

The Department rejects Paragraph 38, which concludes that Wilson "would have clearly been entitled to payment under the first phase of the Program" had the Department not ignored the first-come, first-served requirement of the statute. The Department was not "clearly" compelled to buy Wilson's nets in Phase One. As noted above, technically Wilson was not eligible to sell nets during Phase One because he filed an incomplete application. Although the Department liberally construed his application in his favor, Tr. 46, and scheduled an appointment, he cannot now complain about priority. Wilson's petition specifically attacks the Department's October 2 action, not its action or inaction in Phase One.

Moreover the Department did not ignore the statute. Section 370.0805(3)(b) required the Department to purchase nets on a "first-come, first-served basis determined by the date of each completed application." The Department determined that it was infeasible to rely merely on the date stamp of the application to set priority for accomplishing net recovery and issuing vouchers. The Department eschewed the alternative of operating a single recovery site. For the convenience of the licensees, it decided to operate twenty-one recovery sites in major fishing communities. Therefore, the notion of creating a statewide line made literal implementation of the statute administratively unacceptable, especially since the Department operated multiple recovery sites. For instance, the Department might be faced with processing the first application in Pensacola, the second application in Key West, and so on. Tr.

64-65. The Department rejects this conclusion in its entirety.

The Department rejects the conclusion in Paragraph 39 that Wilson is an "eager participant." Wilson's enthusiasm to participate in the program is statutorily irrelevant. Also, the conclusion disregards Wilson's petition, in which he criticizes the net ban as putting fishermen out of business and regards each rule change as costing fishermen more money. For reasons already described, the Department concludes that Wilson is not entitled to payment for eighteen seine nets and was not eligible for compensation during Phase One.

Except as noted above, the Department accepts the conclusions of law of the

ALJ.

Accordingly, it is hereby ORDERED that the Recommended Order be approved in

part and rejected in part, and that Wilson's petition, requesting additional compensation, is hereby DISMISSED.

This Final Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a notice of appeal in accordance with section 120.68, Florida Statutes, in the district court of appeal where the agency maintains its headquarters or where a party resides. Such notice must be filed in the district court within thirty (30) days of the date that this order is filed in the official records of the Department of Labor and Employment Security, as indicated in the clerk's certificate below, or further review of this action will be barred.

DONE AND ORDERED in Tallahassee, Florida, this 22nd day of January 1997.

Kenneth E. Holmes Director

Division of Unemployment Compensation Florida Department of Labor and

Employment Security

201 Caldwell Building

107 East Madison Street Tallahassee, Florida 32399

ENDNOTES

1/ Ch. 96-159, ss 18 and 19, 1996 Fla. Laws (to be codified at ss 120.569(2)(j) and 120.57(1), Fla. Stat. (Supp. 1996), respectively).

2/ s 120.57(1), Fla. Stat. (1995).

Docket for Case No: 95-005101

Orders for Case No: 95-005101