The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the Administrative Complaint which demands relief against Respondent's Monroe County license (WD 000938), and, if so, what penalty should be imposed. The secondary issue is whether Respondent's Dade County license (WD 000008) should be denied renewal. A companion case, Didi's Seafood Corporation Department of Natural Resources (Case No. 86-4512), addresses the third issue of whether Didi's Monroe license is entitled to renewal. The Recommended Order in that case is being issued concurrent with this Order.
Findings Of Fact Based upon the Prehearing Stipulation, I make the following findings of fact: Roland Suarez was Vice-President of Respondent when the described offenses were committed. Ofelia Suarez was Treasurer of Respondent when the described offenses were committed. Respondent held, and applied for renewal of, WD license nos. 000008 (Dade County) and WD 000988 (Monroe County). The described Federal offenses were committed between November 30, 1982 and December 14, 1982. The described offenses, as pled guilty to, were violations of the Federal Lacy Act [16 U.S.C. s.3372(a)(2)(A) and s.3373(d)(1)(B) and (d)(2)]. The Federal Lacy Act violations were predicated upon violation of Section 370.14(2)(a)(1), Florida Statutes (1983); which prohibits possession of undersized lobster tails. The charges against Respondent and Rolando Suarez involved knowingly transporting with intent to sell, offer for sale, and sale of approximately 400 pounds of undersized lobster tails. Four hundred twenty pounds of undersized lobster tails constitutes more than 100 individual tails. Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following additional Findings of Fact: On January 9, 1986, Didi's Seafood Corporation pled guilty to a crime constituting a violation of Section 370.14(2)(a)(1), Florida Statutes and Title 16, U.S. Code Sections 3372(a)(2)(A) and 3373(d)(1)(B). Respondent was then convicted as charged for the offense of knowingly transporting with the intent to sell, offering for sale, and knowingly selling, in interstate commerce approximately 400 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of the law. Respondent was ordered to pay a fine of $1000.00. On January 9, 1986, Rolando Suarez pled guilty to a crime constituting a violation of Title 16, USC, 3372(A) and 3373(d)(2). Rolando Suarez was then convicted of the offense of transporting with intent to sell and offering for sale undersized spiny lobster tails. Roland Suarez was ordered to pay a fine of $1000.00. Didi's Seafood Corporation has been in business since 1973. Each year prior to January, 1986, Respondent had successfully renewed its wholesale dealer's licenses for Dade County (WD 000008) and Monroe County (WD 000988). The licenses did not run on the calendar year, but expired on June 30 of each year. The Monroe license (WD 000988) therefore expired on June 30, 1986. The Dade license (WD 000008) was denied renewal on April 7, 1986. On June 29, 1986, Ernesto Pichardo, the plant manager for Respondent's Monroe County business, executed an affidavit as to the wholesale dealer's law abiding reputation and attempted to renew the Monroe license. The renewal was denied based upon the conviction described in Finding of Fact paragraph 8. Any criminal acts which may have occurred took place in connection with the Dade County license (WD 000008). There is no evidence to suggest that either Ernesto Pichardo or any other person connected with Respondent's Monroe County business has been arrested or convicted of any crime. On January 13, 1986, Roland Suarez executed an affidavit as to wholesale dealer's law abiding reputation. On January 27, 1986, Roland Suarez executed another affidavit as to wholesale dealer's law-abiding reputation. Both of these affidavits were in connection with the Dade County license and required Roland Suarez to answer the following question: Excluding traffic offenses, I have either been arrested for or convicted of the following offenses. List each offense and the year arrested or convicted. If you have never been arrested or convicted, write "None." In both cases the answer given was "none." Roland Suarez' affidavit was false since he had been convicted of the charges described in Finding of Fact, paragraph 9. On June 25, 1984, Roland Suarez, Jr., was issued a citation which alleged a violation of Section 370.07(1) Florida Statutes, for operating as a seafood dealer without a wholesale license. This citation was issued in Dade County, Florida. On April 2, 1984, Ofelia Dopica Suarez received a citation alleging a violation of Section 370.07(1) Florida Statutes for operating as a seafood dealer without a wholesale license. Roland Suarez, Jr. and Didi's Seafood Corporation pled guilty to the federal charges described in Finding of Fact paragraphs 8 and 9 to avoid the time and cost of continuing the defense of the violations. Mr. Suarez denied knowingly receiving undersized lobster tails. The lobster tails were from Nicaragua and were in transit when seized. Because about 10,000 pounds of lobster tails were seized and mixed, frozen, it was impossible to determine if any of the tails seized at Didi's plant were undersized. Respondent received payment for a portion of the alleged undersized lobsters tails since some percentage, still unknown to the parties, was legal. The exact number, if any, of undersized lobsters tails was not determined. The federal identification number for Respondent's Monroe County business and Dade County business is the same, ID #59-1465901.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Lawn it is RECOMMENDED: That the Department of Natural Resources enter a Final Order finding Respondent guilty of the violation alleged in Count I of the Administrative Complaint, but granting the renewal of its licenses and placing them on probation for a period of two years. DONE and ORDERED this 1st day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1470 Rulings of the Proposed Findings of Fact submitted by Respondent. 1. Accepted in Findings of Fact paragraphs 1-8. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Roberts Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Respondent violated Section 370.142(2)(c), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact The terms of the settlement agreement between the parties are set forth in the following paragraphs. The parties stipulated to the factual basis alleged in Case No. 97-4209. As set forth in the citation dated August 7, 1997, Respondent Jorge Cabrera (Cabrera) was fishing 130 untagged crawfish traps. This was the second time within a 24-month period that Cabrera was in violation of Section 370.142(2)(c), Florida Statutes. Petitioner, Department of Environmental Protection (Department), agrees to abate the notices that form the basis for Case Nos. 97-4416, 97-4485, and 97-5005 on the following terms and conditions: Cabrera shall immediately pay a fine of $5,000 to the Department. Cabrera shall have his Saltwater Products License (SPL-44525) and all endorsements thereto, C-9049, X-1615, V-7859, ML-887 and RS (current RS expiring June 30, 1999), suspended for five years beginning July 1, 1998, and continuing through the end of the 2002/2003 license year. It is specifically recognized by the parties that the SPL and endorsements currently held by Cabrera remain active until and through the close of business hours (5:00 p.m.) June 30, 1998. The parties agree that the license is suspended for five years, but that at the end of the five-year period, Cabrera is otherwise eligible to reapply for an SPL and the endorsements currently held on the 1997/1998 SPL license, which are the Restricted Species (one-year eligibility remaining), Crawfish, Blue Crab, Stone Crab, and Marine Life endorsements. In this case only, as part of the parties' settlement agreement, the Department agrees that the statutory requirements for renewal of the Crawfish and Stone Crab endorsements and specifically the currently mandatory every September 30-renewal-application deadline for the Stone Crab renewal are tolled during the suspension period. The qualifying period for the RS endorsement is tolled only as to the time currently remaining for requalification on the existing license, which would be one year remaining eligibility. Upon renewal of the SPL with endorsements application for the 2002/2003 license year, eligibility and time remaining will resume from what Cabrera had at the time the suspension became effective. The time periods tolled begin to run again on July 1, 2002, whether the SPL holder has applied for reactivation of his SPL with endorsements or not. Specifically, if there is no application for an SPL with RS endorsement within one year of July 1, 2002, the one year's eligibility remaining from the 1997/1998 license expires. Any time that has expired after July 1, 2002, counts, and the time remaining to requalify for the RS will be whatever time remains from the one-year eligibility which begins to run on July 1, 2002, and expires on June 30, 2003. For example, if the application is received by the Department in September 2002, the applicant would have only nine months of RS eligibility remaining. Under current license application procedures, the earliest reapplication that may be submitted will be in April 2002 for the 2002/2003 license year. Cabrera shall have only until the close of the current year transfer-period to transfer his lobster-trap certificates. Any certificates not transferred are subject to forfeiture if they are not maintained pursuant to Section 370.142, Florida Statutes, during the license suspension period. All fines and fees must be paid to the Department before the transfers can be made. The Department will expedite the providing of forms, processing, and record activity, and Cabrera will expedite submittal of completed application(s) to allow reasonable time to accomplish any transfers or other record activity prior to the close of the transfer period. All traps (lobster and stone crab) must be removed from the water by the end of the fishing season. Any of Cabrera's traps that may become subject to disposition under the trap retrieval program (Section 370.143, Florida Statutes) must be handled as appropriate, even if the circumstances occur after the time the license suspension becomes effective. The parties agree to bear their own costs and attorney's fees associated with these proceedings. The parties agree that breach of the settlement agreement between the parties will revive all rights and remedies available to the non-breaching party that the party had against the other prior to entering into the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which incorporates the provisions of the Settlement Agreement between the parties. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 M. B. Adelson, IV, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 John A. Jabro, Esquire 90811 Overseas Highway, Suite B Tavernier, Florida 33070
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I hereby make the following findings of fact: On February 27, 1984, the premises operated by Tony's Sea, Inc., were inspected by two inspectors of the Department of Agriculture and Consumer Services. On that date the inspectors observed, among other things, four boxes of frozen lobster tails which had been processed and packed by Tony's Sea, Inc. The four boxes of frozen lobster tails which came to the attention of the inspectors were sealed and labeled. The label on each box stated that the net weight of the contents was ten pounds. None of the labels contained the name of a dealer or responsible firm, nor did the name of a dealer or responsible firm appear elsewhere on the boxes. The inspectors removed the ice from the frozen lobster tails in each of the four subject boxes and weighed the lobster tails without ice. The net weight of the frozen lobster tails was approximately six pounds per box. The Administrative Complaint served on the Respondent contained the following opening paragraph: You are hereby notified that the Florida Department of Agriculture and Consumer Services intends to take disciplinary sanction authorized by Section 500.121, F.S., and seeks to impose an administrative fine of $1,000 for violation of certain laws of the state applicable to food processors and certain rules of the department.
Recommendation On the basis of all of the foregoing it is recommended that the Department of Agriculture and Consumer Services enter a Final Order ordering the Respondent, Tony's Sea, Inc., to pay an administrative fine in the amount of $1,000.00, such fine to be paid within 15 days of the issuance of the Final Order. DONE and ORDERED this 10th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 10th day of May, 1985. COPIES FURNISHED: Mr. Antonio Martinez-Malo President, Tony's Sea, Inc., 7716 N.W. 76 Avenue Medley, Florida 33166 Frank A. Graham, Jr., Esquire Resident Counsel Department of Agriculture and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301 Honorable Doyle A. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
Findings Of Fact 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.
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. FOR THE RESPONDENT: Respondent's post hearing submittal did not constitute Proposed Findings of Fact, but more an analysis of and argument on the evidence. COPIES FURNISHED: Maureen M. Malvern, Esquire Department of Environmental Protection 2600 Blair Stone Road, MS 35 Tallahassee, Florida 32308 Brad D. Hicks Qualified Personal Representative percent House 514 Island Avenue Tarpon Springs, Florida 34689 James Ikey house 514 Island Avenue Tarpon Springs, Florida 34689 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
