STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF NATURAL RESOURCES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0343

)

MGB CORPORATION d/b/a )

GULFSTREAM SEAFOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on May 27, 1986, in West Palm Beach, Florida, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings. The parties were represented by counsel.

APPEARANCES

For Petitioner: L. Kathryn Funchess, Esquire

3900 Commonwealth Boulevard

Tallahassee, Florida 32303

For Respondent: R. Edward Campbell, Esquire

Suite 130, Commerce Center

324 Datura Street

West Palm Beach, Florida 33401

A. Russell Bobo, Esquire David W. Spicer, Esquire NCNB Tower, Suite 910

1555 Palm Beach Lakes Boulevard West Palm Beach Florida 33401-2363

ISSUE

Whether Respondent's wholesale and retail dealer's licenses should be revoked or otherwise disciplined for two convictions of Possession of Undersized Crawfish Tails, as alleged.

INTRODUCTION

By a two-count Administrative Complaint dated January 2, 1986, Petitioner, Department of Natural Resources ("DNR") sought to revoke Respondent, MGB Corporation, d/b/a Gulfstream Seafood's ("MGB") wholesale and retail seafood dealer's licenses. As grounds, DNR alleged that MGB has twice been convicted of Possession of Undersized Crawfish tails by the County Court of Palm Beach County, Florida.

MGB disputed the charges and requested a Section 120.57(1) hearing. DNR granted the request and on February 3, 1986, forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was set for April 14, 1986, then (on DNR's unopposed motion) continued and reset for May 27, 1986.

At hearing, DNR presented the testimony of Linda Rondone and Frances Crowley; MGB presented the testimony of Seymour Kramer. DNR Exhibit Nos. 1 through 3 were received in evidence.

The transcript of hearing was filed on June 16, 1986. The parties filed proposed findings of fact and replies by August 11, 1986. Ruling on their findings are contained in the attached Appendix.

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

I.

1. MGB Corporation, a corporation organized under the laws of Florida, owns and operates a seafood dealership known as Gulfstream Seafood at 5300 Georgia Avenue West Palm Beach, Florida. It holds Retail Seafood Dealer's License No. RC-W3246 and wholesale Seafood Dealer's License No. WD2239 issued by DNR for the 1985-86 license year. (DNR Ex. 1,2)

   
   

2. George M. Michael is the president and chief executive officer of MGB. In connection with MGB's application for issuance or renewal of its current seafood dealer's licenses, Mr. Michael executed a required affidavit from the individual responsible for the day-to-day management of the business. By the terms of the affidavit, he pledged himself "to the faithful observance of all .

   . . laws . . . regulating the . . . possession of fish, seafood, and other saltwater products (DNR Ex.2)

   
   

3. On October 21, 1985, following a plea of no contest, the County Court of Palm Beach County, Florida, adjudicated MGB d/b/a Gulfstream Seafood guilty of two counts of Possession of Undersized Crawfish Tails, a violation of Section 370.14, Florida Statutes. MGB was fined $500, in addition to a $20 surcharge and a $25 fine for contempt of court. (DNR Ex.3; Tr.21-22)

   
   

   II.

   
   

4. One of these counts alleged that on March 29, 1985, MGB d/b/a Gulfstream Seafood, unlawfully possessed crawfish tails which measured less than five and a half inches lengthwise from the point of separation along the center of the entire tail until the rearmost extremity is reached, contrary to Section 370.14(2), Florida Statutes.

   
   

5. Facts Underlying this Violation. On March 29, 1985, Officer Francis Crowley accompanied by another officer of the Florida Marine Patrol entered the premises of Gulfstream Seafood and observed undersized crawfish on pallets in the production area. They were not refrigerated and had not yet been processed. Mr. Michael, who was present, tried to divert Officer Crowley's attention while another individual attempted to wheel the crawfish out the back door. The two officers separated the legal-sized crawfish from the undersized crawfish and

   weighed each category. There were 254 pounds of undersized crawfish, i.e., crawfish with tails measuring less than five and a half inches lengthwise from the point of separation along the center of the entire tail to the foremost extremity. The number of undersized crawfish involved is unknown. Officer Crowley issued a citation to Mr. Micheal and donated the undersized crawfish to a children's home in Fort Pierce.

   
   

   III.

   
   

6. The other count of which MGB was found guilty alleged that on May 17, 1985, MGB again unlawfully possessed 3undersized crawfish in violation of Section 370.14(2), Florida Statutes. The circumstances surrounding this violation including the weight or number of undersized crawfish involved, have not been shown.

   
   

   IV.

   
   

7. MGB has 165 employees, a payroll of $127,000 a month, and processes between 10,000 and 15,000 crawfish per month. A suspension of its seafood dealers' license for a month or more would adversely impact its operations. Customers would most likely obtain seafood from other dealers and it would be difficult for MGB to recoup the lost business.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1985).

   
   

9. An agency's authority to suspend or revoke a license is restricted to the grounds enumerated in the statute. In re Weathers, 31 So.2d 543, 544 (Fla. 1947), the court stated:

   
   

   The rule appears to be well established that,

   `Where a board or officer is granted the right and power to revoke a license for certain named reasons, causes, or crimes, set out in the statutes, a license may not be revoked for any other or different cause or causes not clearly within the provisions of the statutes . . .'

   
   

   See; Food 'N Fun, Inc. v. Department of Transportation, So.2d (Fla. 1st DCA Case Nos. BK-135; BK-136, BK-137, Opinion filed July 28, 1986) ("An administrative agency, empowered to revoke a permit for reasons specified in a statute, may not revoke such permit for any cause not clearly within the ambit of its statutory authority, as statutes authorizing revocation must be strictly construed.")

   
   

10. In 1985, the legislature enacted Chapter 85-234, Laws of Florida, which, in relevant part; specifies conditions upon which a seafood dealer's license could be suspended or revoked, and places time constraints on the penalty. As codified in Section 370.021(2); Florida Statutes (1985), the statute provides:

    
    

    1. Permits issued to any person, firm or corporation by the department to take or

       harvest saltwater products, or any license issued pursuant to s. 370.06 or s. 370.07 [authorizing issuance of seafood dealer's licenses] may be suspended or revoked by the department, pursuant to the provisions of s. 120.60, for any major violation prescribed in paragraph (c);

       1. Upon a second conviction for a violation which occurs within 12 months after a prior violation, for up to 60 days.

       2. Upon a third conviction for a violation which occurs within 24 months after a prior violation, for up to 150 days.

       3. Upon a fourth conviction for a violation which occurs within 36 months after a prior violation, for a period of 6 months to 3 years.

          
          

          Paragraph (c), referenced paragraph in (e) above, provides that a court shall assess additional penalties against a corporation convicted of a "major violation." It defines a major violation (relating to the taking or possessing of illegal crawfish) as:

          
          

          1. For a violation involving more than 100 illegal crawfish . . . an additional penalty of $10 for each illegal crawfish, stone crab, or part thereof.

          
          

          Section 370.021(2)(c)1., Fla.Stat. (1985).

          
          

11. The evidence of record fails to establish that MGB was convicted of a "major violation" involving illegal crawfish within the meaning of paragraph (c), since it was not shown that the violations of March 29 and May 17, 1985, involved "more than 100 illegal crawfish." Section 370.021(2)(c)1., Fla.Stat. (1985) 1/ The charges must, therefore, be dismissed.

    
    

12. Notwithstanding the clear language of Section 370.021(2), DNR relies on Section 370.07(5) as authority to suspend or revoke MGB's seafood dealer's licenses for convictions under the saltwater fisheries law without regard to the number of illegal crawfish involved. This provision, in effect for over twenty years; provides:

    
    

    1. LICENSE REVOCATION.-

       1. A permit or license issued to a seafood dealer under the provisions of this chapter is good only to the person to whom issued, and named therein, and is not transferable. Such permit or license may be revoked:

    1. By the division upon the conviction of the person, to whom issued of any violation of

       the laws or regulations designed for the conservation of fish, seafood, or other products of the fresh or salt waters of this state;

    2. Upon conviction of the person to whom issued, of knowingly dealing in, buying, selling, transporting, possessing, or taking

       any fish seafood, or saltwater product, at any time and from any waters, in violation of the laws of this state; or

    3. By the division upon satisfactory evidence of any violation of the laws or any regulations of this state designed for the conservation of fish, seafood, or other products of

    the fresh or salt waters of this state or of any of the laws of this state relating to dealing in, buying selling, transporting; possession, or taking of fish, seafood, or saltwater products.

    
    

13. The recently enacted Section 370.021(2), which prescribes specific conditions which must be met before a seafood dealer's license may be suspended or revoked, conflicts with the long-standing language of Section 370.07(5), authorizing suspension or revocation for any conviction under the saltwater fisheries law.

    
    

14. The general rule is that when an irreconcilable conflict exists between two statutes, the latest expression of legislative will must prevail. Peterson v. State Department of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA 1977). See, 49 Fla. Jur.2d, Statutes, Section 181 (1984). Another pertinent rule is that a statute which relates to the specific part of the general subject "will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent of the repugnancy, if any," State ex rel. Loftin v. McMillan, 45 So. 882, 884 (Fla. 1908); See, 49 Fla. Jur.2d Statutes; Section 182 at 222 (1984).

    
    

15. The conflict between Sections 370.07(5) and 370.021(2), must, therefore, be resolved in favor of the latter, since it (1) is the latest expression of legislative will and (2) narrows and makes more specific the grounds upon which a seafood dealer's license may be suspended or revoked. DNR's attempt to implement Section 370.07(5), without regard to the limiting language of Section 370.021(2), must; therefore, be rejected.

RECOMMENDATION

Based on the foregoing; it is RECOMMENDED:

That the charges, and administrative complaint filed against MGB; be DISMISSED.

DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1986.

ENDNOTE

1/ This statute applies even though it was enacted subsequent to the time of MGB's offenses, since it restricts or takes away agency power formerly conferred by Section 370.07(5).

COPIES FURNISHED:

A. Russell Bobo, Esquire David W. Spicer, Esquire NCNB Tower, Suite 910

1555 Palm Beach Lakes Blvd.

West Palm Beach, Florida 33401-2363

L. Kathryn Funchess, Esquire 3900 Commonwealth Blvd. Tallahassee, Florida 32303

R. Edward Campbell, Esquire Commerce Center, Ste. 130

324 Datura St.

West Palm Beach, Florida 33401

Dr. Elton Gissendanner Executive Director Executive Suite

3900 Commonwealth Blvd.

Tallahassee, Florida 32303

Docket for Case No: 86-000343

Orders for Case No: 86-000343