STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN E. ENGLISH, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5781

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on April 12, 1996, in Stuart, Florida.

APPEARANCES

For Petitioner: Stephen E. English, pro se

Post Office Box 814

Port Salerno, Florida 34992

For Respondent: Louise T. Sadler

Senior Attorney Department of Labor and

Employment Security

Suite 307, Hartman Building 2012 Capital Circle Southeast

Tallahassee, Florida 32399-2189 STATEMENT OF THE ISSUES

The central issue in this case is Petitioner's claim for reimbursement for seine nets pursuant to a net "buy-back" program implemented by the Department of Labor and Employment Security (Department).

PRELIMINARY STATEMENT

This case began on October 7, 1995, when the Petitioner, Stephen E. English, initiated a petition to challenge the Department's decision to allow him credit for only 1200 yards of seine net. It is Petitioner's position that he should be allowed to sell 24 seine nets for $3,500 each and that the Department's refusal to purchase his nets (and treat him as others were treated) unfairly discriminates against him.

The Department forwarded the matter to the Division of Administrative Hearings for formal proceedings on November 29, 1995. The matter was scheduled for formal hearing on April 12, 1996.

At the hearing, Petitioner testified in his own behalf and offered the testimony of the following witnesses: Ken Reecy; Jeffrey Cox; Edward B. Olsen; and John Smith. Petitioner's exhibits numbered 1 through 11 were admitted into evidence.

The Department presented the testimony of Ken Reecy. Its exhibits numbered

1 through 7 have also been received.

The Department requested, and official recognition has been taken, of the Department's emergency rule 38BER95-1, Florida Administrative Code.

Additionally, the parties' stipulations which were filed on April 12, 1996 are incorporated below.

A transcript of the proceeding has not been filed. Specific rulings on the proposed findings of fact submitted in this case are included in the appendix at the conclusion of this order. The Respondent's motion to dismiss is addressed in the conclusions of law.

FINDINGS OF FACT

1. The Respondent, the Department of Labor and Employment Security, had the sole authority to administer the Net Ban Assistant Program enacted in Section 370.0805, Florida Statutes. For purposes of this record, this program has been called the net buy-back program (or the program).

   
   

2. The Petitioner, Stephen E. English, is a fisher who filed an application for assistance under the buy-back program on July 5, 1995.

   
   

3. The Department received applications from many fishers who sought to participate in this program. Those fishers who were deemed eligible to receive assistance from the program were notified of a time and date certain to present their nets for buy-back. The Department advised all fishers that their claims would be processed on a first come, first served basis.

   
   

4. The initial estimate of the total buy-back expense to the Department (and the assumption that the fund was sufficient to cover same) was based upon the types of nets listed on the buy-back applications which had been filed. For example, Petitioner listed that he would be selling 5,000 yards of gill net (49 meshes or less); 5,000 yards of gill net (50 meshes or more); 1,000 yards of beach, purse or seine net; and 4,000 yards of trammel net.

   
   

5. Based upon the foregoing information, when the Department reviewed the Petitioner's application and the amounts applicable to each type of net was computed, it was presumed Petitioner would receive approximately $25,000.00 for his nets. This process was repeated for all applications filed and led the Department to believe that, based upon what the fishers had described in their applications, there would be sufficient funds to pay all fishers who were deemed eligible for all nets listed in their applications.

   
   

6. When the Department made the decision to set appointments for the buy- back program it erroneously presumed the fishers would turn nets in as described in the applications. Therefore, although the appointments were to be on a first come, first served basis (based upon the date and time of the filing of the applications), the appointments were scheduled at various sites around the state on the basis of when applications were turned in, what nets were expected to be received, and total volume of work a location could be expected to do on a given day.

7. Several buy-back sites were selected in an effort to accommodate the fishers hauling their nets in for sale. Had the Department used only one buy- back site, and set the appointments by time only, fishers traveling long distances to turn in their nets would have been inconvenienced. Delays inherent in the process of waiting for identification of nets and receiving them by the Department would have been greater than those incurred at the multiple sites.

   
   

8. Since the Department did not expect any site to be able to handle more than 80 nets per day, the numbers of nets expected to be turned in also affected the scheduling of the appointments.

   
   

9. None of these minor deviations from the first come, first served policy would have effected the buy-back program had the fishers, in fact, turned in nets according to their applications. That did not happen.

   
   

10. Instead, when fishers presented nets for buy-back on the first days of the program in August, 1995, they turned in huge volumes of seine nets. The

    buy-back amount for a seine net was much greater than the other types of nets. As a result, the claims to the buy-back fund greatly exceeded the amounts initially computed by the Department. In fact, it became apparent that the fund could not repay fishers for all seines expected to be turned in.

    
    

11. This impacted Petitioner because the first appointments for the buy- back program at Petitioner's buy-back site (Stuart or Salerno) began on September 5, 1995. Petitioner's appointment was for September 7, 1995 at 8:00 a.m.

    
    

12. By September 5, 1995, the Department was in the process of evaluating claims and stopping the buy-back program.

    
    

13. On September 6, 1995, at 5:00 p.m. the Department called a halt to the buy-back at all sites.

    
    

14. On September 6, 1995, before the buy-back program was stopped, Petitioner attempted to sell his nets. He was advised by the Department's agents at the buy-back site that he would not be allowed to turn in his nets until his appointment time.

    
    

15. Petitioner observed others, who had appointment times after his, being allowed to turn in their nets on September 6, 1995. The Department refused to purchase Petitioner's nets on September 6, 1995.

    
    

16. The net purchase process can be described as follows: a fisher presented the net for purchase, it was identified by type, measured over a roller, and a voucher receipt issued. This procedure was repeated for each type of net turned in until all nets from a fisher were processed. Although unexpected by the Department some buy-back locations were able to process more than 80 nets per day using the described procedure.

    
    

17. After the buy-back program was resumed, Petitioner was permitted to sell his nets but was advised he would only be paid for 1,200 yards of seine nets (the amount shown on his application). Petitioner was advised that the remainder of his nets would be acceptable in any other type other than seine net.

18. Consequently, Petitioner was paid as follows: $11,608.68 for trammel nets, $6,999.60 for seine nets, and $10,382.51 for gill nets (50 meshes or more). Thus, the total Petitioner received for his nets was $28,990.79.

    
    

19. The underlying problem with the buy-back program was caused when fishers who turned in nets ahead of Petitioner altered their nets to claim reimbursement as seine nets.

    
    

20. Since the appointment letters did not advise fishers that they would only be able to sell the nets described on their applications, the fishers took advantage of the definition of "seine" net as then in effect and presented "seine" nets at the buy-back locations.

    
    

21. In response to this definition issue, the Department enacted an emergency rule, 38BER95-1, to define the types of seine nets more particularly so that the integrity of the buy-back program was assured.

    
    

22. Persons who were given vouchers for their "seine" nets who were later disallowed have filed a class action lawsuit against the Department.

    
    

23. Petitioner did not receive a voucher for his nets on September 6, 1995, so he is not a member of the class action suit.

    
    

24. Petitioner maintains he should have received a voucher for his nets on September 6, 1995; that he was treated differently than others whose nets were purchased at his site on September 5 and 6, 1995; and that he has been damaged and should receive a voucher from the net buy-back program in the amount of

    $55,000.

    
    

    CONCLUSIONS OF LAW

    
    

25. Except as noted below, the Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

    
    

26. Section 370.0805, Florida Statutes, provides, in pertinent part:

    
    

    1. INTENT--

       1. In response to the adoption of s. 16. Art.X of the State Constitution, it is the intent of this section to establish a program, which shall be administered and enforced by

          the Department of Labor and Employment Security, in accordance with the provisions of this section, to provide economic assistance to commercial saltwater products licensees suffering certain losses in income as a result of the amendment, to purchase commercial

          fishing gear rendered illegal or useless by

          the amendment, and to retrain commercial fisher- men economically displaced by the amendment.

          * * *

          1. APPLICATION FOR ECONOMIC ASSISTANCE.--

             1. For economic assistance for lost income under this section, each saltwater products licensee shall apply to the Department of Labor and Employment Security on or before

                December 31, 1995. Lost income assistance under this section shall be provided based on a first-come, first-served basis deter- mined by the date of receipt of each completed application.

             2. 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 of Labor and Employment Security beginning July, 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 availa- bility of funds on a first-come, first-served basis determined by the date of receipt of each completed application.

          * * *

          1. NET BUY-BACK PROGRAM--

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

                1. shall, upon application to and approval of the Department of Labor and Employment Security, receive economic assi- stance 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. 373.65 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 assi- stance to compensate such licensees for such

                   nets, to be known as the net buy-back program, shall be as follows:

                   1. Deepwater 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.

             2. Economic assistance shall be available only for nets that could have been legally fished on June 30, 1995, and that are pre- sented to the Department of Labor and Employment Security in the following manner:

                1. Each net presented shall include only float line, webbing, and leadline.

                2. Each net presented shall be cleaned of all debris, containments, and fish and shall be devoid of all ferous metals, doors, and "let go" weights.

             3. 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 ten nets.

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

             5. Any net for which a licensee receives payment shall become the property of the department and shall be destroyed or disposed of in a manner that is not harmful to Florida's environmental.

          * * *

          (7) RULES--The Department of Labor and Employment Security shall adopt rules to carry out the provisions of this section and may enter into an interagency agreement with the Department of Environmental Protection to administer any provisions of this section.

          
          

27. In this case, the Petitioner was paid for all nets set forth in his net buy-back application. Moreover, based upon the types of nets he identified in his application, the amount of repayment was accurate as presented in the statute.

    
    

28. Petitioner is primarily aggrieved because he did not receive a voucher on September 6, 1995, as he was unable to process his nets under the old

    procedure. He maintains his nets would have been considered "seine" nets on that date; and, therefore, he would have been entitled to additional compensation and participation in the pending class action lawsuit.

    
    

29. The Department correctly argues that the Division of Administrative Hearings does not have jurisdiction to fashion the remedy sought by Petitioner. The Division of Administrative Hearings cannot make Petitioner a member of a class action lawsuit. Such remedy, if available, would rest with the trial court.

    
    

30. Secondly, the Petitioner has not established that the Department acted arbitrarily or contrary to the intent of the law. Petitioner was not denied benefits to which he was entitled. Petitioner was paid in full for all nets identified in his net buy-back application. He cannot seek a windfall because others have attempted to take advantage of the system used by the Department. Petitioner's argument that ethical and legal are not the same is not persuasive. In this case, the law is clear that the Legislature did not intend to authorize the purchase of all nets being treated as seine nets. The statute contemplated different values for different nets.

    
    

31. The Department reasonably relied on the applications filed by the fishers and, if it erred, did so only when it failed to make clear that the buy- back would only be for the nets identified on the applications. All other procedural decisions, such as allowing multiple sites for buy-back facilities, were within the sound discretion of the agency and statute. See e.g. Section 370.0805(3)(b), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Labor and Employment Security enter a final order denying Petitioner's claim for additional compensation based upon the nets returned under the buy-back program, and dismissing Petitioner's request for a voucher or to make him a member of the class action lawsuit.

DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, 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 20th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5781

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 6, and 14 through 17 are accepted.

2. Paragraphs 7 through 13, 18 and 19 are rejected as contrary to the weight of the credible evidence, argument, or irrelevant.

3. Further, it is concluded that Petitioner had no vested right to sell his nets before 8:00 a.m. September 7, 1995. Since the program had been suspended by that time, he was compensated according to the rules and his application at the next appointment date and time. Thus, he was paid all monies contemplated under his original application.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 18, and 22 through 38 are hereby accepted and adopted by reference.

2. With regard to paragraph 19, it is rejected as repetitive.

3. With regard to paragraph 20, it is rejected as irrelevant.

4. With the correction to September 6, 1995 at 5:00 p.m., paragraph 21 is accepted. The Department bought no nets on September 7, 1995.

COPIES FURNISHED:

Louise T. Sadler, Senior Attorney Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

Stephen E. English, pro se Post Office Box 814

Port Salerno, Florida 34992

Douglas L. Jamerson, Secretary 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

307 Hartman Building

2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-005781

Orders for Case No: 95-005781