Findings Of Fact Based upon the stipulations entered into the record, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The parties: The Petitioners, Buck Flowers and Ray Thornton, are commercial fishermen doing business within the State of Florida. If enacted, the proposed rules would substantially affect their business interests. The Petitioner, Organized Fishermen of Florida, Inc., is an association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants, and fish retailers doing business in the State of Florida. If enacted, the proposed rules would substantially affect its interests and the interests of its membership. The Petitioner, Tim Adams, is a commercial fisherman doing business in Florida. If enacted, the proposed rules would substantially affect his interests. The Petitioner, Bird Island Fishery, is a harvester and wholesaler of fish within the State of Florida and its interests would be substantially affected by the enactment of the proposed rules. The Petitioner, Kim Gerz, is a commercial fisherman whose interests would be substantially affected by the proposed rules. The Petitioner, Goodrich Seafood, is a company that unloads and ships fresh fish in the State of Florida. Its interests would be substantially affected by the proposed rules. The Petitioner, Lee County Fisherman's Cooperative, Inc., is a company that unloads and ships fresh fish. Its interests would be substantially affected by the proposed rules. The Petitioner, Sigma International Co., is an exporter of mullet roe. If enacted, the proposed rules would substantially affect its business. The Respondent, Marine Fisheries Commission, is an entity created by statute to serve within the Department of Natural Resources and empowered with rulemaking authority as set forth in Section 370.027, Florida Statutes. The Intervenor, Florida League of Anglers, Inc., is a corporation whose purpose is to protect and enhance Florida's fisheries and their habitats. The Intervenor, Florida Conservation Association, is an affiliate of the Coastal Conservation Association, whose main interests are to protect and enhance Florida's fisheries and marine environments for recreational fishing in Florida. The Intervenor, Florida Audubon Society, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. The Intervenor, Florida Wildlife Federation, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. Background of the proposed rules: The Department of Natural Resources began a study of issues related to the black mullet fishery within this state in 1987. The study was to cover a five year period beginning in 1987-88. It was anticipated that the study would serve as the genesis for regulations to be imposed on black mullet fishing within the State of Florida. In 1989, the Commission adopted rules related to black mullet fishing. Those rules specified periods during which black mullet could not be fished, set gear restrictions, closed designated areas to fishing, amended qualifications to catch commercial quantities of mullet, and set recreational limits. The rules specified that during 15 weekends of the year, black mullet fishing would be closed for 30 hour periods. Another restriction, to become effective July 1, 1992, established a minimum net mesh size of three inches. In 1990, the Commission adopted additional rules related to black mullet fishing: new areas were closed to fishing, minimum net mesh size during roe season was increased to four inches, commercial fishermen were prohibited from using spotter aircraft to locate schools, and weekend closures were extended from 30 to 54 hours with the additional stipulation that the fish had to be at the dock by closing time. Further, two additional weekends were closed to fishing. In June, 1991, the Commission met to consider new, more stringent rules related to the black mullet fishery. As a result of the discussions at that meeting, proposed new rules and amendments to rules were published in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991. The proposed rules: Rule Chapter 46-39, as set forth in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991, provided, in pertinent part: MARINE FISHERIES COMMISSION RULE CHAPTER TITLE: RULE CHAPTER NO.: Mullet 46-39 RULE TITLES: RULE NOS.: Recreational Harvest Seasons 46-39.0035 Commercial Harvest, Statewide Regulations 46-39.005 Northwest Florida Commercial Harvest Restrictions 46-39.0055 Southwest Florida Commercial Harvest Restrictions 46-39.0075 East Florida Commercial Harvest estrictions 46-39.0095 PURPOSE AND EFFECT: The purpose of these proposed new rules and rule amendments is to implement additional, more stringent controls on commercial mullet harvest to begin rebuilding mullet populations over the long term to achieve a 35 percent spawning stock biomass ratio (SSBR) for the species statewide. The Commission established the SSBR goal after receiving the results of a five-year study of Florida mullet conducted by the Department of Natural Resources scientists. The state is divided into three areas (Northwest, Southwest, and East Florida) and differential rules are imposed in each area, with the Southwest area being more stringently regulated to coincide with scientific evidence showing a significantly lower SSBR in the area. Week-long closures, year-round in the Southwest and during roe season elsewhere, are considered to be more effective methods to reduce fishing mortality than roe season weekend closures, which are being eliminated. The closures will also apply to recreational harvesters, thus eliminating enforcement problems that occur during periods when recreational mullet harvest is allowed and commercial fishing is prohibited. Limiting gill and trammel nets to a maximum of 600 yards will result in a significant reduction in length of nets being fished in some areas, and may also result in a harvest reduction. Commercial daily vessel limits of 500 pounds during non-roe season are intended to reduce harvest during those periods when mullet are least highly valued. SUMMARY: New Rule 46-39.0035 establishes recreational week-long closures to coincide with commercial closures in the three areas established by new Rules 46-39.0055,46-39.0075, and 46-39.0095. The week-long closures will be during roe season in Northwest and East Florida, and year-round in Southwest Florida. A new paragraph is added to subsection (2) of Rule 46-39.005 to limit gill and trammel nets used to harvest mullet to 600 yards maximum statewide. New Rule 46-39.0055 establishes a commercial mullet closure during the 22nd through the 28th days of the months of September, October, November, and December in the Panhandle and Wakulla-Hernando Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of January through August of each year. New Rule 46-39.0075 establishes a commercial mullet closure during the 22nd through 28th days of the each month of the year in the Pasco-Lee, Collier-Monroe Gulf, and Lake Okeechobee Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. New Rule 46-39.0095 establishes a commercial mullet closure during the 22nd through the 28th days of the months of October, November, December, and January in the East Coast and St. Johns Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. RULEMAKING AUTHORITY: Section 370.027(2), Florida Statutes. LAW IMPLEMENTED: Sections 370.025, 370.027, Florida Statutes. SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULES: The proposed amendments will directly affect those persons who harvest mullet for commerce. The proposal will indirectly affect wholesale dealers, retail dealers and consumers. The benefit of the measures is to ensure the sustained yield of the renewable mullet resource for human consumption and the food web. The cost of the proposal will be reduced levels of harvest and intermittent supplies of black mullet. The cost will vary regionally with the greatest reductions in the southwest Florida area. The proposed amendments will create a competitive advantage due to the differential regional regulations. The rule will not affect the open market for employment. The rule will affect small businesses. The rule will not increase paperwork or reporting requirements. Agency implementation costs for promulgation, hearings and filing will be approximately $6,500.00; enforcement costs total $38.00/hr. THE MARINE FISHERIES COMMISSION WILL CONDUCT A PUBLIC RULEMAKING HEARING ON THE PROPOSED RULES AT THE TIME, DATE AND PLACE SHOWN BELOW: TIME AND PLACE: 10:00 a.m. until 5:00 p.m., September 5, 1991; and 9:00 a.m. until 5:00 p.m., September 6, 1991 PLACE: Holiday Inn Tampa International Airport, 4500 West Cypress Street, Tampa Florida All written material received by the Commission within 21 days of the date of publication of this notice shall be made part of the official record. Subsequent to the publication of the notice described above, the Petitioners timely filed challenges to the proposed rules. Pursuant to the notice described above, the Commission met on September 5-6, 1991, for the purpose of conducting a public rulemaking hearing for the proposed new rules and proposed amendments to rules. At the meeting of September 5, 1991, members of the public were permitted to comment on the proposed rules and amendments. On September 6, 1991, the Commission allowed its staff to make a presentation regarding the options available to the Commission and deliberated the proposals before it. As a result of those deliberations, the Commission made substantial changes to the proposed rules. At that time the Commission acknowledged the challenges filed by the Petitioners herein and resolved to submit the changed proposed rules to the Governor and Cabinet for approval upon the favorable resolution of the administrative challenges. The substantially changed proposed rules were published in the Florida Administrative Weekly, Vol. 17, No. 39, September 27, 1991, and provided, in substance, for the following restrictions: 46-39.0035 Recreational Harvest Seasons--prohibits harvesting during the period of the first day and continuing through the seventh day of each month during the months of September through December of each year for the state waters from the Florida-Alabama border to the Hernando-Pasco County line; prohibits mullet harvesting during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year for the state waters from the Hernando- Pasco County line to the Dade-Monroe County line, excluding state waters of the Atlantic Ocean in Monroe County and including all waters of Lake Okeechobee; and prohibits harvesting beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year in all state waters from the Florida-Georgia border to the Collier- Monroe County line, excluding state waters of the Gulf of Mexico in Monroe County and including all waters of the St. Johns River. 46-39.0055 Northwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Panhandle and Wakulla-Hernando Regions, as those areas are elsewhere defined, during the period beginning on the first day and continuing through the seventh day of each month during the months of September through December of each year. 46-39.0075 Southwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Pasco-Lee, Collier- Monroe Gulf, and Lake Okeechobee Regions, as those areas are elsewhere defined, during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year. 46-39.0095 East Florida Commercial Harvest Restrictions--prohibits harvesting mullet for commercial purposes in the East Coast and St. Johns Regions, as those areas are elsewhere defined, beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year. The Commission abandoned the 500 pound trip limit previously proposed for each region but retained the limit for gill and trammel nets to 600 yards maximum, statewide. The Commission asserts that the changes to the proposed rules were generated by virtue of the written comments, public testimony, and Commission discussion contained in the record of the public hearing held on September 5-6, 1991. Scientific data: In determining an appropriate guide for managing the black mullet fishery, the Commission staff elected to utilize a system based upon a computer model commonly known as "DSPOPS." The DSPOPS model was designed by Dr. Ault, working with Dr. Mahmoudi, for use in mullet stock assessment. While Dr. Ault developed the model with the intention that Dr. Mahmoudi would use it in mullet stock assessment, Dr. Ault did not prescribe the variables to be inserted into the model or comment to Dr. Mahmoudi as to the advisability of his choices. In fact, the reliability of the model is dependent on utilizing reasonable scientific inputs where variables must be inserted. The spawning stock biomass ratio (SSBR) measures the total mature biomass or weight of the fish stock in an exploited fishery in relation to what it would be if it were unfished. The Commission determined, and the Petitioners have not challenged, that the desirable SSBR for mullet would be 35 percent. By using data from 1988 and 1989, and inserting variables into the DSPOPS model the Commission staff attempted to compute the baseline SSBR for mullet in Florida. The SSBR was calculated by region and was intended to depict the conditions of the mullet stock by each region. The use of SSBR as a tool to evaluate a fishery and propose management of it has been accepted in the past by the Commission and other entities charged with management responsibility. The target of 35 percent SSBR for mullet is a reasonable management goal. In electing which variable to plug into the DSPOPS model, Commission staff chose the conservative estimate or value for the parameter to be inserted. "Conservative" herein is used to mean that choice which would depict the "worst case scenario" and, would, therefore, in theory, err on the side of the preservation of the fish. Such selections, as will be addressed below, were not based upon the best scientific data available and constituted an improper use of the model. In utilizing the DSPOPS model, reasonable and appropriate scientific methodology dictate the use of reasonable values for the variables to be inserted into the model. When values from either extreme of the spectrum are used, the reliability of the output is diminished. That is, the less the probability of the occurrence in the real world would be. In this case, the Commission staff found in its initial stock assessment that the SSBR for mullet in the southwest region was 15.1 and 22.4 in the northwest region. That assessment required inputs in the DSPOPS model for the following parameters: recruitment function; natural mortality; fishing mortality; and sexual maturity. In choosing which input for recruitment function, the Commission staff used a Getz recruitment function. The recruitment function is intended to show the relationship among a designation of the fish population and the amount of new fish born into that population each year. Utilizing the Getz function, instead of the other available recruitment function options, consistently produces the lowest estimate of spawning stock biomass. Had the Commission staff utilized the Beverton and Holt density dependent option, the spawning stock biomass in the northwest region would have increased by 11.73 and in the southwest region by 5.29. With regard to the natural mortality parameter, the Commission staff chose a natural mortality of 0.3. The data available suggests that in Florida the mullet fishery has a natural mortality rate of 0.5. By using the lower value, the DSPOPS model calculated the SSBR at an arbitrarily lower level. Had the Commission staff used 0.43 for the natural mortality input the SSBR would have increased in the northwest region by 3.07 and by 4.79 in the southwest region. Similarly, the Commission staff used extreme variables when inputting the handling mortality. Thus, the computed spawning stock biomass was lower than a midrange option would have produced. Finally, with regard to sexual maturity, mullet achieve sexual maturity at age 4. That age is supported by competent scientific data and is established by the evidence presented in this case. Regardless, Commission staff used a sexual maturity matrix in the DSPOPS model that assumed some fish were still sexually immature at 6 and 7 years. If corrected, the SSBR results would have been increased by 10 percent. By relying on the DSPOPS modeling results for the SSBR assessment, as computed by the Commission staff, the Commission failed to consider the best available biological information regarding the mullet stock. When corrected parameters are input into the DSPOPS model, the SSBR assessment for mullet is dramatically increased. The amount of the increase depends on which parameter is changed. If midpoint values are selected and all inputs are changed, the model produces a SSBR for the northwest region of 52.74 and for the southwest region of 36.19. Economic data: Economic impact and small business impact statements were prepared for the proposed rules first published in August, 1991. Statements were not prepared for the amended proposed rules which were approved by the Commission at the September, 1991, meeting. Mullet have a shelf life of four days if handled properly. The bulk of the market demand is for fresh mullet with demand for frozen or smoked mullet being significantly smaller. Closures of longer than four days would require mullet customers to seek other markets for fresh mullet. Restaurants and other entities seeking a constant source of fresh mullet would look to other markets such as Louisiana to fill orders. If lost, such customers are hard to recapture as in the instance of the spanish mackerel market. It is anticipated that businesses relying on the fresh mullet market will lay off employees if extended closures go into effect. The economic impact statement did not estimate the number of people who would be unemployed or underemployed as a result of the closures. The monetary amounts of the lost market created by the reductions expected in the harvest of mullet was not included in the economic impact statement. The short-term and long-term values of lost market could be computed for those directly and indirectly impacted by the proposed rules. It is expected that the financial losses to commercial fishermen, fish wholesalers, and distributors will be considerable. Additionally, loss of mullet roe sales will result in loss of market since no fish stocks are available to substitute for the mullet roe. Options which would minimize the adverse economic impacts the proposed rules would cause for small businesses have not been presented or considered by the Commission. Closures of shorter duration but of more frequency would lessen the economic damage to small businesses. For example, four day closures would not result in the interruption of the availability of fresh mullet. As opposed to what is proposed, regulations which would increase the net mesh size to allow younger fish to remain uncaught would also lessen the economic damage to small businesses. An increase in the year of first capture would increase SSBR. As opposed to what is proposed, regulations setting trip limits for harvesting mullet would lessen the economic damage to small businesses. Setting net restrictions as proposed allows harvesting and lessens the economic damage to small businesses.
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
