STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

On April 10, 1998, the parties filed a Joint Stipulation and Request for Entry of a Recommended Order, requesting that a Recommended Order be entered adopting the terms and conditions of the joint stipulation.

APPEARANCES

For Petitioner: M. B. Adelson, IV

Assistant General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: John A. Jabro, Esquire

903ll Oversees Highway, Suite B Tavernier, Florida 33070

STATEMENT OF THE ISSUES

Whether Respondent violated Section 370.142(2)(c), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By letter dated August 12, 1997, Petitioner, Department of

Environmental Protection (Department) gave notice to Respondent, Jorge Cabrera (Cabrera) that the Department was suspending Cabrera's crawfish endorsement for the remainder of the license year for violation of Section 370.142. By letters dated

August 25, September 5, and September 19, 1997, the Department gave notice to Cabrera that the Department was revoking his crawfish endorsement. Cabrera requested administrative hearings on the notices.

The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. By Order of Consolidation dated November 6, 1997, the cases were consolidated. On November 17, 1997, the parties filed a Notice of Settlement and Motion to Relinquish Jurisdiction. On

November 20, 1997, the undersigned Administrative Law Judge entered an order closing the files on the consolidated cases and relinquishing jurisdiction to the Department.

On January 14, 1998, the Department filed Petitioner's Notice of Breach of Settlement Agreement and Rescission of Request to Relinquish Jurisdiction. By order dated January 20, 1998, the files of the Division of Administrative Hearings on the instant cases were reopened.

On April 10, 1998, the parties filed a Joint Stipulation and Request for Entry of Recommended Order, advising that the parties had reached a settlement agreement and requesting that a Recommended Order be entered adopting the terms and conditions of

the settlement agreement.

FINDINGS OF FACT

1. The terms of the settlement agreement between the parties are set forth in the following paragraphs.

2. The parties stipulated to the factual basis alleged in Case No. 97-4209. As set forth in the citation dated August 7, 1997, Respondent Jorge Cabrera (Cabrera) was fishing 130 untagged crawfish traps. This was the second time within a 24-month period that Cabrera was in violation of Section 370.142(2)(c), Florida Statutes.

3. Petitioner, Department of Environmental Protection (Department), agrees to abate the notices that form the basis for Case Nos. 97-4416, 97-4485, and 97-5005 on the following terms and conditions:

   1. Cabrera shall immediately pay a fine of $5,000 to the Department.

   2. Cabrera shall have his Saltwater Products License

      
      

      (SPL-44525) and all endorsements thereto, C-9049, X-1615, V-7859, ML-887 and RS (current RS expiring June 30, 1999), suspended for five years beginning July 1, 1998, and continuing through the end of the 2002/2003 license year.

      1. It is specifically recognized by the parties that the SPL and endorsements currently held by Cabrera remain active until and through the close of business hours (5:00 p.m.)

         June 30, 1998.

      2. The parties agree that the license is suspended for five years, but that at the end of the five-year period, Cabrera is otherwise eligible to reapply for an SPL and the endorsements currently held on the 1997/1998 SPL license, which are the Restricted Species (one-year eligibility remaining), Crawfish, Blue Crab, Stone Crab, and Marine Life endorsements.

      3. In this case only, as part of the parties' settlement agreement, the Department agrees that the statutory requirements for renewal of the Crawfish and Stone Crab endorsements and specifically the currently mandatory every September 30-renewal-application deadline for the Stone Crab renewal are tolled during the suspension period. The qualifying period for the RS endorsement is tolled only as to the time currently remaining for requalification on the existing license, which would be one year remaining eligibility. Upon renewal of the SPL with endorsements application for the 2002/2003 license year, eligibility and time remaining will resume from what Cabrera had at the time the suspension became effective.

      4. The time periods tolled begin to run again on

         
         

         July 1, 2002, whether the SPL holder has applied for reactivation of his SPL with endorsements or not. Specifically, if there is no application for an SPL with RS endorsement within one year of July 1, 2002, the one year's eligibility remaining from the 1997/1998 license expires. Any time that has expired after

         July 1, 2002, counts, and the time remaining to requalify for the

         RS will be whatever time remains from the one-year eligibility which begins to run on July 1, 2002, and expires on June 30, 2003. For example, if the application is received by the Department in September 2002, the applicant would have only nine months of RS eligibility remaining.

      5. Under current license application procedures, the earliest reapplication that may be submitted will be in April 2002 for the 2002/2003 license year.

   3. Cabrera shall have only until the close of the current year transfer-period to transfer his lobster-trap certificates. Any certificates not transferred are subject to forfeiture if they are not maintained pursuant to Section 370.142, Florida Statutes, during the license suspension period.

      1. All fines and fees must be paid to the Department before the transfers can be made.

      2. The Department will expedite the providing of forms, processing, and record activity, and Cabrera will expedite submittal of completed application(s) to allow reasonable time to accomplish any transfers or other record activity prior to the close of the transfer period.

4. All traps (lobster and stone crab) must be removed from the water by the end of the fishing season. Any of Cabrera's traps that may become subject to disposition under the trap retrieval program (Section 370.143, Florida Statutes) must be handled as appropriate, even if the circumstances occur after the

   time the license suspension becomes effective.

   
   

5. The parties agree to bear their own costs and attorney's fees associated with these proceedings.

6. The parties agree that breach of the settlement agreement between the parties will revive all rights and remedies available to the non-breaching party that the party had against the other prior to entering into the settlement agreement.

   CONCLUSIONS OF LAW

   
   

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

8. The parties have stipulated that Cabrera has committed a second violation relating to fishing untagged crawfish traps as described in and pursuant to Sections 370.142(2)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which incorporates the provisions of the Settlement Agreement between the parties.

DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.

COPIES FURNISHED:

Kathy Carter, Agency Clerk Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

M. B. Adelson, IV, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399

John A. Jabro, Esquire

90811 Overseas Highway, Suite B Tavernier, Florida 33070

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-004209

Orders for Case No: 97-004209