through 376.17 and 376.19 through 376.21, Florida Statutes and Rule 16N- 16.043, F.A.C. Respondent requested the undersigned officially recognize various cited provisions of Florida Jurisprudence which were furnished. These requests were granted.
No transcript was furnished. The parties agreed to an extension of two weeks both for the filing of Proposed Findings of Fact and the issuance of this Recommended order. Counsel for Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. The Respondent's Qualified Personal Representative submitted an argument and Case Summary after hearing. While not specifically ruled upon, it was, nonethetless, carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Department of Environmental Protection was the state agency responsible for the regulation of certain activities conducted on and in the coastal waters of this state. Respondent was a commercial crab fisherman operating out of Tarpon Springs, Florida.
In the operation of his business, Respondent, James Ikey House, places and maintains several thousand wooden crab traps in the waters off western- central Florida for the purpose of catching stone crabs. He, or someone in his employ, builds his traps on his premises.
Late in the afternoon on September 2, 1993, Marine Patrol Officer Umberto Navarro, while on duty as a land patrol from Tarpon Springs to St. Petersburg Beach, on Roosevelt Boulevard in Tarpon Springs, saw a stack of greenish colored crab traps on a lot beside the street. The greenish color of the traps he saw that day made him wonder what they had been dipped into for preservation. Navarro's family has been in the commercial fishing business for years and some are competitors of the Respondent in the Tarpon Springs area. He contends this has nothing whatever to do with his investigation, however. He has worked with fishermen all his life and before becoming a Marine Patrol officer, he built thousands of crab traps similar to those he saw that day and dipped them in motor oil as a preservative.
Navarro saw a young boy on Respondent's premises dipping bundles of slats into a vat containing a dark liquid. The slats were 2 to 3 feet long and were tied with string, and based on his experience in the business, and the fact that a lot of the prepared and stacked traps were the same color as the wood being dipped, Navarro concluded that they were going to be made into crab traps. He asked the lad to whom the traps belonged and subsequently found out they were owned by the Respondent. When Respondent came to the site where Navarro was talking to the boy and the boy's father, Respondent's grandson and son respectively, Navarro, after identifying himself as a Marine Patrol officer, asked Respondent if the traps were his. In response, Respondent asked, "What's it to you?"
Navarro then asked Respondent what the substance being used was and explained why he asked. He advised Respondent that it was unlawful to dip crab
traps, or the material to be made into traps, in any substance made from petroleum. Respondent asked to see where that was in the law and Navarro showed him the statutory provision included in a book of relevant laws and rules carried by all Marine Patrol officers. Even when this was shown to Respondent, he remained hostile and uncooperative, though he ultimately stated he was using mineral oil and copper as a dip. Only when Navarro said he would take a sample of the substance did Respondent admit the dip contained a petroleum product, and he said he guessed that he was in violation of the law along with the other million people who dipped traps.
Officer Navarro went over to where the dip substance was being used and asked if Respondent had any cans from which it had come around for him to look at. Respondent refused to show Navarro any cans, so as a result, even though he did not have a search warrant to do so, Navarro started to take a sample for further identification. With that, Respondent told Navarro to get off his property. Nonetheless, Officer Navarro took two samples of the substance using a piece of what appeared to him to be abandoned water hose he saw lying on the ground. One was taken from the vat in which the slats were being dipped, and the other was taken from a 55 gallon drum of the substance nearby. He did so because he saw what he considered to be a crime being committed in front of him and he wanted to preserve a sample of the substance being used. Navarro gave Respondent a receipt for the samples and the hose. He did not take any of the traps. He also took photographs of the scene including the dip process, the stacked traps, and the surrounding locale. Respondent objected to the pictures being taken.
The substance was subsequently released to Mr. Rossbach of the Department's Emergency Response office who had the samples analyzed by an independent accredited laboratory. In determining what tests to run on the substance, Mr. Rossbach and the laboratory official considered its appearance and its odor, and based on that, the laboratory personnel suggested what tests should be done. Mr. Rossbach got prices for those tests and, before approving their completion, took the samples back to his office, secured a purchase order for the tests, and then took the samples back to the lab for analysis. The report of the tests done on these samples indicated the substance contained a significant amount of copper and mineral spirits, a petroleum product.
The total cost of the investigation into this incident by the Department, including the laboratory analysis which was priced at $855.00, came to $1156.26. This figure also includes the mileage for the patrol car, the cost of sample jars, a proration of the salaries of the Marine Patrol and Department personnel involved, photography costs, and clerical expenses. In addition, the Department proposes to assess a fine of $500.00. In this regard, the Department has authority to assess a fine of up to $10,000 per day for pollution violations proscribed by Chapter 376, Florida Statutes.
In 1990, the Florida Legislature revised Chapter 376, Florida Statutes, to provide that after 1990, no traps may be impregnated with a petroleum based solution. After 1995, no traps which have been impregnated with a petroleum based solution may be used in the waters of this State. The statute was drafted this way to allow those fishermen who had traps already impregnated at the time the statute was passed to use them until they wore out or for a reasonable time prior to the effective date of the prohibition against their use.
Captain House categorically denies having dipped any of the traps Navarro saw stacked, or any of the traps he has used since 1989, in mineral spirits though before the law was changed he used to do so. He has been a
commercial fisherman for 50 years, and while he formerly dipped his traps to preserve the wood and keep worms out, he no longer does so because of the cost of the chemicals and the labor to do it. He now uses commercially treated lumber to fabricate the traps which, though more expensive to buy, is cheaper for his purposes than the cost of regular wood plus the treatment process.
The vat which Mr. Navarro saw contains a green liquid which is made up of mineral spirits and a copper wood preservative. Respondent claims he uses the wood which is dipped into the vat for a variety of purposes and, on occasion, gives it to others. He also lets others use his vat to dip their wood. The dipping is done to protect the wood against rot and he uses it in boat building and in the construction and maintenance of two houses he owns in Tarpon Springs. He claims not to have used it for crab traps, however.
Respondent claims Officer Navarro's inquiry into his operation is the result of commercial competition. There is no evidence of this however. Respondent also claims that from his inquiry of a Ms. Moegling of the same laboratory which conducted the analysis for the Department, he was advised that it would take between 5 and 7 days to test for suspected petroleum products, and that the test would cost $150.00. The report of analysis done by the lab reflects a comprehensive testing for numerous chemicals. Respondent took a sample of his dip to another laboratory, Personal Services Industries, Inc., in Clearwater on May 18, 1994, where he paid $115.00 for an analysis of the substance. There was no evidence as to what the result of this analysis was, however, or what tests were completed.
In light of the fact that the statute and rule prohibit dipping in petroleum based products, a less comprehensive test than that run here would have sufficed. Though there is no direct evidence of the cost of such a test, other than theestimate by PSI, Inc. of $115.00, and the cite of a fee of $150.00 to Respondent by a representative of V.O.C. Analytical Laboratories, Inc., it would seem reasonable that such a test could be done for less than $855.00. Using the cited alternative costs as a guide, the sum of $150.00 appears reasonable.
Respondent also presented several receipts for the purchase of lumber which he claims was pressure treated lumber to be used for the construction of his crab traps. Again, the documents do not indicate that the lumber is pressure treated, and as with the results of the independent analysis, the only evidence of Respondent's claims is his own testimony.
Respondent also introduced three affidavits from individuals who claim to be aware of Respondent's activity from witnessing his conduct for anywhere from three to twelve years. Each of these individuals claims to have seen Respondent build many crab traps, but none has ever seen him dip the traps in or spray them with chemicals. The statements are hearsay and the similarity of the language of these affidavits leads to the conclusion they were prepared in advance by Respondent or his representative and submitted to the affiant for signature.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The Pollutant Discharge Prevention and Control Act, Sections 376.011 - 376.21, Florida Statutes, provides, in pertinent part at Section 376/07(3):
After July 31, 1990, no lobster trap or traps to be deposited into waters of the state shall be impregnated with a petroleum product that may be released from such trap or traps. After July 31, 1995, no person shall deposit into the waters of the state any lobster trap or traps that have been impregnated with a petroleum product that may be released from such trap or traps into the water.
In furtherance of the statutory intent, the Department, by Rule 16N-
.043, F.A.C., has stated:
Lobster traps or other traps used to take salt- water products shall not be impregnated with a liquid commodity made from petroleum such as diesel oil, kerosene, gasoline, residual oils, bunker C residual oil, intermediate fuel oil, asphalt oils or mixtures of these products with other products. After July 31, 1995, no person
shall deposit such a trap into waters of the state.
Mineral spirits is a petroleum product proscribed within the limitations of the statute and rule cited above. Therefore, since the wood being dipped by the individual on Respondent's property was being dipped in a petroleum product, it could not be used in the manufacture of crab traps or any other artifact which would be deposited within the waters of the state.
Officer Navarro failed to take a sample of the traps he observed on the Respondent's property, nor did he take any of the wood which was being fabricated into traps. The wood he took, admittedly dipped in a petroleum product was, according to Respondent, slated for other lawful uses. Such averments must, however be viewed in light of the other evidence of record. That evidence shows that Respondent was in the crabbing business and built and used his own traps. These traps were colored the same as the wood which was being dipped and appeared to be no different. The wood being dipped was in the form of slats which is the type of wood cut used in the manufacture of crab traps. Further, one cannot overlook the Respondent's spontaneous admission
against his interests to the extend that he is guilty along with a million other people of using dipped wood in the construction of crab traps.
The case against the Respondent would have been stronger had Officer Navarro secured one of the completed traps for analysis and that analysis determined the material therein had been dipped in the substance confiscated by Navarro and analyzed at the lab. However, this is not a license discipline case and the burden of proof on the Petitioner requires no more than a preponderance of the evidence. Taken together, it is clear the evidence admitted in this case meets that standard.
As a result, Respondent is liable for the fine assessed and for the reimbursement of established, appropriate expenses related to the investigation. Respondent found a laboratory to do an analysis of the substance for less than that charged by the laboratory utilized by the Department, in fact, for $115.00. It cannot be said what that test included, however. A comparison of the receipt
for lab analysis obtained by Respondent from PSI, Inc., which gives no indication of the tests done, to that done by V.O.C. Analytical Laboratories Inc. for the Department, the reason for the difference in cost becomes evident.
However, such an extensive test was not required. The statute and the Department rule proscribes dipping in a petroleum based product. A less comprehensive test, at a lower cost, could have determined the presence of petroleum derivatives. Therefore, expenses in the amount of $451.26 are considered reimbursable.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that the Petitioner pay a fine of $500.00 and reimbursement of expenses in the amount of $451.26.
RECOMMENDED this 23rd day of August, 1995, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 23rd day of August, 1995.
APPENDIX TO RECOMMENDED ORDER
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
FOR THE PETITIONER:
Accepted but not relevant to any issue of fact.
Accepted and incorporated herein.
- 11. Accepted and incorporated herein.
Accepted and incorporated herein.
& 14. Accepted and incorporated herein.
Accepted and incorporated herein.
- 20. Accepted and incorporated herein.
Accepted.
Not proven.
& 24. Accepted.
