STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAN SEVASTAKIS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1306

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, Donald R. Alexander, on July 27, 1982, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Jan Sevastakis, pro se

Post Office Box 23575 Mandarin, Florida 32217

For Respondent: Paulette Armstead, Esquire

Suite 1003, Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32303 BACKGROUND

By letter dated January 22, 1982, Petitioner, Jan Sevastakis, sought a permit from Respondent, Department of Natural Resources, to use a 60-foot trawl net with 1 1/2 inch bar measure mesh to capture marine species of commercial value on the St. Johns River and adjacent areas. Pursuant to a request by the Department, further information was submitted on January 31, 1982. Thereafter, on March 31, 1982, Respondent denied the request on the ground "the trawl net as described by applicant (was) capable of taking shrimp", and therefore the prohibition against such activity contained in Subsection 370.153(2), Florida Statutes, was applicable.

Petitioner requested an administrative hearing on April 6, 1982, to contest the denial of her application. The matter was forwarded to the Division of Administrative Hearings on May 4, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated June 9, 1982, the final hearing was scheduled for July 27, 1982, in Jacksonville, Florida.

At the final hearing Petitioner testified on her own behalf and offered Petitioner's Exhibits 1 and 2, each of which was received in evidence.

Respondent presented the testimony of James A1An Huff, a senior biologist, and offered Respondent's Exhibits 1-3; all were received in evidence.

The transcript of hearing was filed on August 4, 1982. The parties were given an opportunity to file proposed findings of fact and conclusions of law; however, none were filed.

The issue herein is whether Petitioner's request for a permit should be approved.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. Petitioner, Jan Sevastakis, is a commercial fisherman who resides in Mandarin, Florida.

   
   

2. On January 22, 1982, Petitioner filed an application with Respondent, Department of Natural Resources, Division of Marine Resources, seeking a permit to authorize the use of a 60-foot fish trawl net with 1 1/2 inch bar measure mesh (three-inch stretched mesh) to capture marine species of commercial value on the St. Johns River north of Shan's Bridge and in the District 8 area of the Intracoastal Waterway. The precise counties in which the activity will occur was not disclosed. Pursuant to a request by Respondent, Sevastakis submitted additional information on January 31, 1982. The application was later denied on March 31, 1982, on the ground the trawl proposed to be used by Petitioner was "capable of taking shrimp" and therefore fell within the prohibition contained in Subsection 370.253(2), Florida Statutes. The denial precipitated the instant case.

   
   

3. The fish trawl net in question will be slowly dragged on the bottom of the river behind Petitioner's twenty-three foot boat. She intends to catch only crab bait which will be used in catching crabs, her primary endeavor.

   
   

4. The net measures one and one-half inches between knots. However, when stretched it measures three inches between knots. Petitioner contends that a net of this size will not catch shrimp, particularly since the shrimp in the inland waters are small, are adept at evading capture, and would easily fall through the three-inch openings in the net. This was corroborated by letters from two other commercial fishermen who stated the net is too large to catch shrimp. Petitioner also pointed out that a 1 1/2 inch stretched mesh net is normally used for catching shrimp, which is one-half the size of the net that she intends to use. In the event the net becomes "jumbled up" while being dragged, Petitioner will stop the boat and clear the net for two reasons: (a) to economize the use of fuel, and (b) to ensure that the net operates in the manner in which it was designed.

   
   

5. Through its marine biologist, Respondent contended that two or three species of shrimp migrate inshore to areas where Petitioner proposes to trawl, and would be caught, albeit unintentionally, when other fish and debris fill up parts of the net so that shrimp could not fall through its openings. It conceded that the inland shrimp vis-a-vis offshore shrimp are extremely small, and that smaller nets are generally used in catching shrimp.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto Pursuant to Subsection 120.57(1), Florida Statutes.

7. Subsection 370.153(2), Florida Statutes, provides as follows:

   
   

   (2) It is unlawful to employ the use

   of any trawl or other net, except a common cast net, designed for or capable of taking shrimp, within the inland waters of Nassau, Duval, St. Johns, Putnam, Flagler, or Clay Counties, except as hereinafter provided. (Emphasis supplied)

   
   

   It is agreed that the activities of Petitioner will occur within the inland waters of all or part of the counties enumerated above. However, the parties disagree as to whether the trawl to be used "is capable of taking shrimp" as prohibited by the statute. The testimony on this issue is in direct conflict.

   
   

8. The precise size of the shrimp that habitate the inland waters was not disclosed. However, the evidence reveals they are "smaller" than the species found offshore and generally caught for commercial value, are evasive, and should escape through the three-inch gaps in the net. Moreover, Petitioner's net is twice the size of that normally used to catch shrimp. Under these circumstances, Petitioner's testimony that the net is not capable of catching shrimp is deemed to be more persuasive than that presented by the Department. Her testimony is corroborated by letters from two other commercial fishermen. While hearsay testimony may not be used as a basis for a finding of fact, it may he used "for the purpose of supplementing or explaining other evidence." See Subsection 120.58(1)(a), Florida Statutes. This being so, the two letters are accepted for that purpose. Therefore, it is concluded that the requested permit should be issued.

   
   

9. The purpose of the law in question is well-intended. Should the Department have any concern that operations under the permit will not be conducted in a lawful manner, it has the power to monitor and make periodic checks of Petitioner's activities under Chapter 370, Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Jan Sevastakis, Post Office Box 23575,

Mandarin, Florida 32217, for a permit to use a 60-foot trawl net with 1 1/2

inch bar measure mesh (3-inch stretched mesh net) to capture marine species of commercial value on the St. Johns River and adjacent areas be GRANTED.

DONE and ORDERED this 19th day of August, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 ApA1Achee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1982.

COPIES FURNISHED:

Jan Sevastakis

Post Office Box 23575 Mandarin, Florida 32217

Paulette Armstead, Esquire Suite 1003, Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Dr. Elton J. Gissendanner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Docket for Case No: 82-001306

Orders for Case No: 82-001306