STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS C. STILLER, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4366

) DEPARTMENT OF LABOR AND EMPLOYMENT ) SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, an Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on January 8, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Albert S.C. Millar, Jr., Esquire

4627 Ocean Street

Mayport, Florida 32233

For Respondent: Edward A. Dion, Esquire

Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should provide additional compensation to Petitioner for nets turned in by Petitioner pursuant to the State of Florida’s Net Buy-Back Program, a program operated by Respondent in accordance with Section 370.0805, Florida Statutes.

PRELIMINARY STATEMENT

By letter on or about October 19, 1995, Petitioner requested formal administrative proceedings in response to Respondent’s determination regarding nets which Petitioner could sell to Respondent.

On September 16, 1996, following proceedings by the parties before the First District Court of Appeal, the matter was transferred by Respondent to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented three witnesses and 12 exhibits of which ten were admitted. Respondent presented testimony of one witness and two exhibits. Respondent’s exhibit

1 was given limited admission in the course of the final hearing pursuant to provisions of Section 120.58, Florida Statutes. Upon review that ruling is receded from, as more fully discussed in the conclusions of law set forth below, and material in Respondent’s exhibit 1 is admitted for all purposes in this proceeding.

A transcript of the final hearing was filed with the Division of Administrative Hearings on February 19, 1997. Proposed findings of fact submitted by the parties have been reviewed in the course of preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner is a commercial fisher who was affected by Florida’s net ban, a matter of amendment of the Florida Constitution, Article X., Section 16.

2. Florida’s Net Buy-Back Program is established by Section 370.0805, Florida Statutes. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida.

3. On July 5, 1995, Petitioner signed and filed with Respondent a Net Buy-Back Application, in which he indicated that he intended to sell 6,000 yards of 50 mesh gill net and 6,000 yards of beach, purse or seine net.

4. Under provisions of Section 370.0805(5), Florida Statutes, fishers are reimbursed for deepwater gill nets of at least 600 yards at a rate of $1,000 per net. Reimbursement to fishers for seine, beach or purse nets is made at a rate of

   $3,500 per net.

5. Petitioner did not communicate any intention to Respondent to sell nets other than the types and amounts contained on his application, basically 50 percent gill nets and

   50 percent seine nets.

6. Respondent’s personnel reviewed data contained in the data base of the Department of Environmental Protection (DEP) to assist in the determination of Petitioner’s net reimbursement eligibility. Following that review, it was determined by

   Respondent that Petitioner was eligible to sell 24 nets. Petitioner did not contest the number of nets he was entitled to sell.

7. On or about October 1, 1996, Petitioner was advised by letter from Respondent’s personnel that he was eligible to turn in a total of 24 nets, up to ten of which could be seine nets. Specifically, the letter stated:

   Based upon the application you signed and submitted and review of the trip tickets issued under your Saltwater Products License, you may turn in a total of 14,400 yards of net, up to 6,000 yards of which may be seine net. The remaining 8,400 yards must be any other type of net other than seine net. You will not be paid for any seine nets in excess of 6,000 yards.

8. Respondent’s determination was based upon a review of the data base obtained from DEP which included trip tickets attributable to Petitioner for the years 1992, 1993, and 1994. As defined in Section 370.0805(4)(c), Florida Statutes, “trip ticket” means Marine Fisheries Trip Tickets, FDEP Form #33-610, submitted to DEP for editing, compilation and entry into the Marine Fisheries Information System.

9. Trip tickets in the information system examined by Respondent’s personnel revealed that Petitioner utilized seine nets in approximately 60 percent of the total trips recorded during the years 1992, 1993, and 1994. Testimony presented by Petitioner at the final hearing that seine net utilization by him was closer to 95 percent is not credited in the presence of the

   statutorily authorized data provided by Respondent’s personnel at the final hearing which establishes the 60 percent figure.

10. Communication between Petitioner and Respondent’s personnel just prior to the date when Petitioner was scheduled to turn in his nets resulted in a correction which permitted Petitioner to turn in 14 seine nets (8,400 yards) and 10 gill nets (6,000) yards. Thereafter Petitioner received and endorsed a State of Florida Warrant in the amount of $58,893.20

    CONCLUSIONS OF LAW

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

12. Pursuant to provisions of Section 370.0805(4)(c), Florida Statutes, the eligibility for economic assistance of fishers affected by the net ban is determined solely by trip tickets submitted to DEP and recorded by the Marine Fisheries Information System. Accordingly, to the extent that Petitioner’s eligibility for economic assistance in the form of reimbursement for his nets is contingent upon his catch during the relevant years at issue, the data contained in Respondent’s exhibit 1 as authenticated by Respondent’s witness at hearing must control. That data shows Petitioner’s historic recorded use of seine nets to be 60 percent of his total.

13. Section 370.0805(5)(a), Florida Statutes, in pertinent part, provides that commercial saltwater products licensees shall

    “receive economic assistance” to compensate them for nets rendered illegal or useless by the constitutional amendment.

14. The number of nets for which a qualified individual may be reimbursed under the buy-back program contained in Section 370.0805(5), Florida Statutes, is, however, based on gross income attributable to the sale of eligible saltwater products. Payment for the top limit of 10 nets may be made only to individuals averaging more than $30,000 annually. Section 370.0805(5)(c)5., Florida Statutes. Petitioner was apparently reimbursed for 24 nets, a number considerably in excess of the maximum statutory limit.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying the relief requested by Petitioner.

DONE AND ENTERED this 17th day of March, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1997.

COPIES FURNISHED:

Edward A. Dion, Esquire Department of Labor and Employment Security

The Hartman Building, Suite 307 2021 Capital Circle SE Tallahassee, FL 32399-2189

Albert S. C. Millar, Esquire 4627 Ocean Drive

Mayport, FL 32233

Douglas L. Jamerson, Secretary Department of Labor and

Employment Security

303 Hartman Building 2012 Capital Circle SE

Tallahassee, FL 32399-2152

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: 96-004366

Orders for Case No: 96-004366