STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARLEY L. VAUSE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5988

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 1O, 1989, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Lynn C. Higby

Attorney at Law

Bryant, Higby & Williams Post Office Drawer 860

Panama City, Florida 32402-0860

For Respondent: Harold A. McLean

Deputy General Counsel Department of Natural Resources

3900 Commonwealth Boulevard

Suite 1003

Tallahassee- Florida 32399 ISSUE

The issue is whether the Petitioner, Harley L. Vause, is entitled to a special activity license to use mechanical harvesting devices on his oyster leases.

BACKGROUND AND PROCEDURAL MATTERS

By its Final Order dated October 17, 1988, the Department of Natural Resources (DNR) denied Petitioner's application for a special activity license to use mechanical harvesting devices on his oyster leases. The grounds for the denial were as follows:

1. The Department has found that Lease numbers 892 and 893 appear to be in violation of the lease agreements and the statutory provisions applicable to the leases for failure to maintain the required level of

   cultivation, and are therefore subject to revocation by the Department.

2. Because the status of Lease Numbers 892 and 893 is currently in question,

issuance of a special activity license which would allow mechanical harvesting on those leases would not be proper. It is therefore ORDERED that the application for a

special activity license to authorize the use of mechanical harvesting implements on lease Numbers 892 and 893 is hereby DENIED until such time as the status of the leases has been determined. (Emphasis supplied).

This proceeding does not involve any action by the DNR to revoke or otherwise penalize Petitioner or Petitioner's leases for any violation of the lease agreements or applicable statutes. In fact, DNR stipulated that no such action has been brought by it.

Petitioner presented the testimony of Harley L. Vause and had three composite exhibits admitted in evidence. Respondent, DNR, attempted to present the testimony of Bill Porter, but an objection to the relevance and materiality of the testimony was sustained. DNR proffered the testimony of Mr. Porter.

The transcript of the proceedings was filed on February 20, 1989. The Respondent filed its proposed findings of fact and conclusions of law on March 2, 1989. Petitioner filed his proposed findings of fact and conclusions of law on March 3, 1989. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the holder of Oyster Leases NO. 892 and 893. The annual rent for both leases was paid on December 16, 1988, and both leases are currently in full force and effect.

   
   

2. No formal action has been brought by DNR to revoke these oyster leases.

   
   

3. In July 1988, Petitioner filed a valid and adequate application for a special activity license to use mechanical harvesting implements on these leases.

   
   

4. Petitioner furnished a bond payable to the Governor of the State of Florida and approved by DNR in the sum of $3,000.00 at the time he filed his special activity license application.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

   Section 370.16(15)(b), Florida Statutes, states:

   
   

   Lessees of bedding grounds shall have

   the right to use in such bedding grounds any

   implements or appliances that they may desire. The division shall require that such lessees procure special activity licenses pursuant to S. 370.06 to use such implements and shall require of the lessees that they furnish a bond payable to the Governor of the State of Florida, to be approved by the division, in the sum of $3,000, that such implements or appliances shall not be used on the natural oyster reefs contrary to law.

   When such implements or appliances are used exclusively on private propagating or bedding grounds, no charge shall be made for the license ....

   
   

6. Section 370.06(4), Florida Statutes, relates to special activity licenses and states:

   
   

   Any person who seeks to use special gear

   or equipment in harvesting saltwater species must purchase a special activity license as specified by law to engage in such activities. The department may prescribe by rule special terms, conditions, and restrictions for any special activity license.

   
   

7. There is no disagreement that Section 370.16(15)(b) contains only two conditions precedent to the issuance of a special activity license to use mechanical harvesting implements: 1) the applicant must be a leaseholder and 2) the applicant must post the required bond. There is also no contest that the Petitioner has met both of these conditions. On its face, it would appear that the Petitioner is entitled to the license. However, DNR argues that the last sentence of Section 370.06(4) authorizes it to apply another condition, namely: No special activity license may issue to any leaseholder during the pendency of an investigation by the department which is designed to discover whether the leaseholder has engaged in required cultivation activities.

   
   

8. Such a condition has not been enacted as a rule and Section 370.06(4) refers only to the department's authority to impose additional conditions if it does so by rule. Having enacted no such rule, DNR instead argues that it may apply this new condition as emerging incipient policy. What DNR fails to recognize is that the burden of proof is on the agency to explicate and justify its policy in a formal hearing. DNR totally failed to carry this burden. Hence there is no need to address the question of whether DNR is authorized to impose new conditions on the issuance of special activity licenses by application of incipient policy instead of a rule and there is no need to address whether imposition of new conditions to the leases is an impairment of contract.

   
   

9. Finally, it is noted that Section 370.16(4)(d), Florida Statutes, authorizes the division to revoke such leases when the division gathers evidence which conclusively shows a lack of effective cultivation. It would therefore appear that DNR has a remedy available to it. It can bring an action to revoke the leases and if it is successful, the applicant for a special activity license would no longer meet the condition precedent of being a leaseholder. In this case however DNR has put the cart before the horse.

10. It is concluded that Harley L. Vause has satisfied all statutory conditions on the issuance of a special activity license to use mechanical harvesting implements on his oyster leases and he is entitled to issuance of the license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order

and therein grant the application of Harley L. Vause for a special activity license to use mechanical harvesting implements on Oyster Leases NO. 892 and 893.

DONE and ENTERED this 13th day of March, 1989, in Tallahassee, Florida.

DIANE K. KIESLING

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 13th day of March, 1989.

COPIES FURNISHED:

Harold A. McLean Deputy General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Suite 1003

Tallahassee, FL 32399

Lynn C. Higby Attorney at Law

Bryant, Higby & Williams Post Office Drawer 860 Panama City, FL 32402-0860

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5988

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Harley L. Vause

Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3) and 2(4).

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources

The only finding of fact proposed by DNR is rejected as being irrelevant and unsupported by the competent evidence.

COPIES FURNISHED:

Harold A. McLean Deputy General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Suite 1003

Tallahassee, FL 32399

Lynn C. Higby Attorney at Law

Bryant, Higby & Williams Post Office Drawer 860 Panama City, FL 32402-0860

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Docket for Case No: 88-005988

Orders for Case No: 88-005988