The Issue Whether Respondent's wholesale and retail dealer's licenses should be revoked or otherwise disciplined for two convictions of Possession of Undersized Crawfish Tails, as alleged.
Findings Of Fact I. MGB Corporation, a corporation organized under the laws of Florida, owns and operates a seafood dealership known as Gulfstream Seafood at 5300 Georgia Avenue West Palm Beach, Florida. It holds Retail Seafood Dealer's License No. RC-W3246 and wholesale Seafood Dealer's License No. WD2239 issued by DNR for the 1985-86 license year. (DNR Ex. 1,2) George M. Michael is the president and chief executive officer of MGB. In connection with MGB's application for issuance or renewal of its current seafood dealer's licenses, Mr. Michael executed a required affidavit from the individual responsible for the day-to-day management of the business. By the terms of the affidavit, he pledged himself "to the faithful observance of all . . . laws . . . regulating the . . . possession of fish, seafood, and other saltwater products (DNR Ex.2) On October 21, 1985, following a plea of no contest, the County Court of Palm Beach County, Florida, adjudicated MGB d/b/a Gulfstream Seafood guilty of two counts of Possession of Undersized Crawfish Tails, a violation of Section 370.14, Florida Statutes. MGB was fined $500, in addition to a $20 surcharge and a $25 fine for contempt of court. (DNR Ex.3; Tr.21-22) II. One of these counts alleged that on March 29, 1985, MGB d/b/a Gulfstream Seafood, unlawfully possessed crawfish tails which measured less than five and a half inches lengthwise from the point of separation along the center of the entire tail until the rearmost extremity is reached, contrary to Section 370.14(2), Florida Statutes. Facts Underlying this Violation. On March 29, 1985, Officer Francis Crowley accompanied by another officer of the Florida Marine Patrol entered the premises of Gulfstream Seafood and observed undersized crawfish on pallets in the production area. They were not refrigerated and had not yet been processed. Mr. Michael, who was present, tried to divert Officer Crowley's attention while another individual attempted to wheel the crawfish out the back door. The two officers separated the legal-sized crawfish from the undersized crawfish and weighed each category. There were 254 pounds of undersized crawfish, i.e., crawfish with tails measuring less than five and a half inches lengthwise from the point of separation along the center of the entire tail to the foremost extremity. The number of undersized crawfish involved is unknown. Officer Crowley issued a citation to Mr. Micheal and donated the undersized crawfish to a children's home in Fort Pierce. III. The other count of which MGB was found guilty alleged that on May 17, 1985, MGB again unlawfully possessed 3undersized crawfish in violation of Section 370.14(2), Florida Statutes. The circumstances surrounding this violation including the weight or number of undersized crawfish involved, have not been shown. IV. MGB has 165 employees, a payroll of $127,000 a month, and processes between 10,000 and 15,000 crawfish per month. A suspension of its seafood dealers' license for a month or more would adversely impact its operations. Customers would most likely obtain seafood from other dealers and it would be difficult for MGB to recoup the lost business.
Recommendation Based on the foregoing; it is RECOMMENDED: That the charges, and administrative complaint filed against MGB; be DISMISSED. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 12th day of August, 1986.
The Issue Whether the Buntins and the Stovalls should receive an after-the-fact coastal construction control line (CCCL) permit to allow a sand-filled HESCO Basket System constructed in the aftermath of Hurricane Dennis in 2005 and that is now primarily a vegetated dune to remain as a permanent structure in Walton County?
Findings Of Fact Sea Turtle Nesting Habitat on a Hurricane-battered Coast Along the northernmost reaches of the Gulf of Mexico, roughly in the center of the Florida Panhandle coast, the beaches and shores of Walton County have been subject to the many vicissitudes of coastal climate over the years. So have marine turtles, several species of which have relied through the ages on Florida beaches and shores, including those in Walton County for nesting habitat. Survivors of shifting circumstances brought by weather, sea turtles are now imperiled by exposure to man-made dangers. Anthropogenic turtle hazards on populated beaches are numerous and, without educational efforts of the Department and the Commission, not likely to be recognized by beach-goers interested in the enjoyment of surf and sun. Folding beach chairs and canopies, board walks designed to protect the dune system, and other seemingly-harmless by- products of human beach activity, even holes dug by children building sand castles, can contribute to sea turtle injury and cause sea turtle fatality. While sea turtles in recent times have made their way across the Walton County beach toward their nests through obstacles set up by human beings and hatchlings have scurried toward the sea through these same impediments, owners of beachfront property have had to contend with powerful tropical storms, particularly in the relatively recent past. Especially damaging to property along the Walton County Coastline have been three hurricanes that hit in the span of a decade: Opal in 1995, Ivan in 2004 and Dennis in 2005. The intense storm surge of Hurricane Opal destroyed much of the dune system along the stretch of Seagrove Beach in Walton County that is the subject of the aerial photography introduced into evidence in this case. Ivan, which made landfall just west of Gulf Shores, Alabama, as a Category 3 Hurricane on September 16, 2004, caused heavy damage to the Walton County coastline and areas west. Of the three, though, the damage done by Dennis is the sine qua non of this proceeding brought by Petitioners to preserve and protect their property. The Stovall and Buntin Property When Hurricane Dennis hit, the Stovalls had owned the property located at 711 Eastern Lake Road, Santa Rosa Beach, Walton County, for some time. Purchased by both Mr. and Mrs. Stovall and in both their names at the time the petition was filed, by the time of hearing, the property had been transferred into Mrs. Stovall's name only. The Stovalls bought the lot around 1997 give or take a year. "[T]he house itself is about 11 years old," tr. 17, built in 1998 or thereabouts. Seaward of the CCCL established on December 29, 1982, construction of the house required a CCCL permit from the Department. In the words of Mr. Stovall, the permitting process required "hundreds of hoops to jump through." Tr. 18. The lot had been in foreclosure and the permit was obtained through the services of a reputable architectural firm. The house, therefore, was designed and constructed to survive a major hurricane, a requirement of the permit. The house was built on pilings sturdy enough to support the house in the event of a major hurricane. High enough to allow the bottom floor of the house to be above storm surge, the pilings' height and house elevation also allowed ample parking for vehicles beneath the house. At the time the Stovall house was built, despite the damage done by Opal, there remained a good natural dune system seaward of the house, one that was "beautiful . . . wonderful," tr. 19, in the words of Mr. Stovall. After the house was constructed, Mrs. Stovall took particular pleasure in the dune system and worked to preserve and cultivate sea oats in its support. She also was thrilled by the presence of two turtle nests not long after the purchase of the lot, one nest found in 1998 and the other discovered on July 22, 1999. After the discoveries, Sharon Maxwell, the County- authorized "local turtle coordinator," tr. 295, and "the only person in the County permitted to touch . . . turtles," tr. 296 was contacted. Ms. Maxwell measured the nests from points related to the Stovall house. They were at least 20 feet seaward of the toe of the most seaward dune. Because the nests were on a busy stretch of the beach, protective measures were implemented. Among the protective measures were actions by Mrs. Stovall. In addition to working with the local turtle coordinator, Mrs. Stovall became involved in circulation of information to neighbors about sea turtle conservation. She was part of an effort to encourage the information to be placed in rental units in the neighborhood. The information recommended turning out lights on the beach that interfered with turtle nesting, "brought out the importance of a single . . . beach chair [that] can misdirect and kill over hundreds of endangered hatchlings . . . [and] umbrellas . . . left overnight [that] can interfere with nesting." Tr. 293. She called local government commissioners and attended commission meetings where she advocated beach removal of items hazardous to sea turtles, their nests and their offspring. Her efforts have extended off-shore as well. As a scuba diver, she learned how to respect sea turtles and their marine habitat and "encouraged others to stay away and not harass the turtles, which many divers do." Tr. 195. The Buntin property, located at 701 Eastern Lake Drive, is adjacent to the Stovall property on the east side. Owned by the Buntins since 1990, the house on the lot was built in 1991 or early 1992. Like the Stovall house, the Buntin house is seaward of the CCCL and built to withstand the forces of major tropical storms. The Buntins, similar to the Stovalls, care about the beaches and shores of Walton County and particularly the beach adjacent to their property. Their intent with regard to the coastal environment is to protect it. There have been times over the past two decades when the Buntins greatly enjoyed their property. Their relationship to it, however, has changed. As Mr. Buntin put it at hearing, "[I]t's a situation we put ourselves in [but] I wish we didn't have any beach property. And I imagine there's a lot of other folks that wish that, too,. . ." Tr. 54. A major factor in Mr. Buntin's change-of-attitude is damage done by Hurricane Dennis. Hurricane Dennis Hurricane Dennis made landfall near Navarre Beach not far west of the Stovall and Buntin Properties on July 10, 2005, having struck the tip of peninsular Florida the day before. Classified according to the Saffir-Simpson Scale as a Category 4 Hurricane at moments in its journey through the Caribbean and the Gulf of Mexico, it came ashore in the northern Gulf as a Category 3 hurricane. Some of the worst damage it caused was along the panhandle coast. One of its damaging effects was enormous erosion of the beaches and shores along the coastline where the Stovall and Buntin property is located. That stretch of beach remains classified as a "critically eroding beach." After the storm, there was nothing left of the dunes seaward of the Stovall and Buntin houses. The Stovall house, itself, was not structurally damaged; there was not "a crack in the Sheetrock. The house stood solid." Tr. 30. It had lost its bottom deck and the deck on its western side but true to the CCCL permitting criteria, the house, perched on pilings about the storm surge, had also withstood the Category 3 force winds of the hurricane. Dennis had caused more damage to the property, however, than just the loss of a few decks. It had eroded the beach as far up as landward of the Stovall's house. At hearing, Mr. Stovall described his first view of the property post-Dennis: [T]he water was lapping back . . . behind the house. And if anybody walked up to where it was, it would just cave in. I fully believed that if that storm would've gone on another two hours, it would have been in the man's house behind me[.] . . . [W]e had no access to the front door and one of the neighbors down the street brought in a ladder . . . It would have taken a 20 or 21-foot ladder to have gotten up to [the] first deck level . . . . Tr. 25. Without a ladder, the house was not accessible. Most pertinent to the Stovall's persistence in bringing this proceeding, there was nowhere to park their vehicles. The parking area under the house had been scoured out. The Buntin property likewise suffered the impact of the hurricane's scour. Mr. Buntin was contacted by a neighbor and told that the scouring under his house was so bad that the air-conditioners midway between the seaward and landward sides of the house were "hanging over a 20-foot drop-off." Tr. 45. Mr. Buntin did not give the report much credibility at first but, to his dismay, found it true when he visited the property shortly after the storm. Just as in the case of the Stovall property, a car could not be parked under the house in the space that had served as the parking area prior to Dennis. Half of a car could be parked under the house but the rest of the sand- based parking area was gone. In its place was a steep embankment that "dropped off 20 feet." Tr. 46. A Serious Parking Problem Eastern Lake Road runs roughly east-west just north of the Stovall and Buntin properties. The roadbed lies in a roadway and utility easement. Because of the easement, property owners along the roadway are not allowed to use it for permanent parking. The restriction includes the entire right-of-way that extends beyond the roadbed. As a combination of the easement and the parking restriction, under-story parking is the only permanent parking place that can serve the properties. Aware that their properties were seaward of the CCCL, the Stovalls and Buntins sought guidance as to how to re- establish parking for their beach front property. They turned both to local government and to DEP. DEP's Emergency Order On the same day that Hurricane Dennis hit South Florida (the day before it made landfall on the panhandle coast), the Department issued an Emergency Final Order (the "Emergency Final Order." Styled, In re: EMERGENCY AUTHORIZATION FOR REPAIRS, REPLACEMENT, RESTORATION AND CERTAIN OTHER MEASURES MADE NECESSARY BY HURRICANE DENNIS and dated July 9, 2005, the Emergency Final Order followed a declaration by Governor Jeb Bush of a state-wide emergency. By State of Florida Executive Order No. 05- 139, the Governor declared that a state of emergency exists throughout the State of Florida, based upon the serious threat to the public health, safety and welfare posed by the Hurricane. Department Exhibit 9, paragraph 2., at 1. The Department's Emergency Order, therefore, had state-wide application and applied to Walton County even though Dennis had not yet come ashore onto the panhandle coast. The Final Emergency Order made the following findings: The Department finds that the Hurricane has created a state of emergency threatening the public health, safety, welfare and property throughout the Emergency Area. As a result of the emergency, immediate action by Florida's citizens and government is necessary to repair, replace, and restore structures, equipment, surface water management systems, works, and operations damaged by the Hurricane. The Department finds that an emergency authorization is required to address the need for immediate action because the normal procedures for obtaining the necessary authorizations would not result in sufficiently timely action to address the emergency. The Department finds that immediate, strict compliance with the provisions of the statutes, rules, or orders noted within this Order would prevent, hinder, or delay necessary action in coping with the emergency, and that the actions authorized under this order are narrowly tailored to address the immediate need for action and are procedurally fair under the circumstances. Department Exhibit 9, at 2. With regard to "Coastal Construction Control Line Activities," Section 3., of the order was clear. It did not "authorize the construction of structures that did not exist prior to the emergency . . . ." Id. at 17. The Final Emergency Order contained a provision, however, that may have related directly to the predicament of the Stovalls and the Buntins. Paragraph 3.b., entitled "Activities Requiring Local Authorization," opens with an introductory statement with regard to certain activities and then lists those activities as follows: Local governments are authorized to issue permits in lieu of Department permits to private and public property owners for the activities listed below. * * * (4) Return of sand to the beach dune system which has been deposited upland by the Hurricanes. Id. (emphasis added). The activity of returning sand to the beach dune system is subject to a section of the Final Emergency Order dedicated to "General Conditions." Id. at paragraph 4., pp. 20- In addition to the requirement that the activities "be performed using appropriate best management practices" id. at 20, in accord with the Florida Land Development Manual, the General Conditions section contained explicit provisions with regard to sea turtles: The nature, timing, and sequence of construction activities authorized under this Order shall be conducted in such a manner as to provide protection to, and so as to not disturb . . . listed species and their habitat, including threatened or endangered sea turtles If activities under C.3 of this Order occur during the marine turtle nesting season (March 1 through October 31 in Brevard and Broward County, May 1 in all other coastal counties), such activities must be coordinated with the Florida Fish and Wildlife Conservation Commission's Imperiled Species Management Section to ensure that all activities comply with state and federal requirements for the protection of seat turtles, their nests, hatchlings, and nesting habitat. Nothing in this order authorizes the taking, attempted taking, pursuing, harassing, capturing or killing of any species (or the nests or eggs of any species) listed under Rule 68A-27 of the Florida Administrative Code or under the Federal Endangered Species Act. Id. at 21-22. Under Section D., "GENERAL PROVISIONS," of the Emergency Final Order, the order cautioned, "[u]nder no circumstances shall anything contained in this Order be construed to authorize the repair, replacement, or reconstruction of any type of unauthorized or illegal structure, habitable or otherwise." Id. at 27, 28. The Emergency Final Order declared its effectiveness for 60 days following its execution on July 9, 2005, by the Secretary of the Department. Expressly set to expire on September 7, 2005, therefore, it promised in the meantime, "to act on requests for field authorizations in a timely and expeditious manner." Id. at 28. The Field Permit True to its word, the Department issued a field permit to Mr. Stovall on August 16, 2005. See Department Exhibit 10. The project is described in the field permit as repair and replacement of wooden decks and "repair/replace understructure concrete/brick paver parking area to original condition." Id. The repairs included electrical, plumbing and HVAC work and replenishment of approximately 1800 yards of sand for foundation pilings. The permit stressed, "[n]o other activity is authorized." Id. And, as part of its special conditions, the permit listed, "all construction shall comply with attached marine turtle conditions." Id. In the attempt to return the understory parking to its original condition, simply replacing sand did not work. "[I]t became pretty obvious to us as we put the sand in there," Mr. Stovall testified at hearing, "the sand was running out." Tr. 31. The Buntins were experiencing much of the same difficulties. Mr. Buntin compared the situation right after the hurricane to four years later at the hearing: There was so much confusion going on . . . we are so far after the fact now [August of 2009]. It's kind of hard to put yourself back in the position we were in at the time [summer of 2005] because there were an awful lot of questions and very few answers. You would get referred . . . this is what the regulations say. Well, you read the regulation and it is left to interpretation . . . the written word is . . . wonderful, but if you've got three people reading it, it's kind of hard to figure out exactly what it means. Now [August of 2009], after the fact . . ., we [have] answers . . . we didn't have at the time. Tr. 51 (emphasis added). Mr. Buntin knew one thing for sure: placing sand under the house would not be enough, "you've got to have some way to keep it underneath . . . because you're going to have to build a parking pad on top of it." Tr. 47. Neither an expert in CCCL regulations nor a coastal engineer, Mr. Buntin had no doubt "[y]ou can't just pile up sand and park the car on sand." Tr. 48. Mr. Buntin knew that in a coastal environment the understory parking would require a base of sand and a means of retaining the sand base under the house. The answer to the quandary was presented by Mike Jones, a contractor hired initially by the Stovalls and eventually by the Buntins, too. Mr. Jones suggested a HESCO Basket System. The HESCO Basket System In the aftermath of the storm, it was difficult to get assistance from repair companies. Mr. Stovall described the difficulty at hearing: "That was a tough job because everybody along the beach had damage, too, and getting someone to even come out there and give you a bid on it was like pulling eye teeth." Tr. 30. Eventually, through his brother, Mr. Stovall learned about Michael Alan Jones ("Mike Jones"), a general contractor licensed in Georgia. Mr. Jones agreed to look at the property. At hearing, he recalled his initial assessment of the Stovall and Buntin repair jobs: [T]here was a crater below the residences. We had to use an extension ladder to gain access to the Stovall property and we had to use some unique engineering to be able to access Mr. Buntin's property. There was no place to park. I noted on the Stovall property that . . . a paver system . . . was used for his parking area and the end of Eastern Lake Road as well, and the majority of that system was either currently . . . in the ocean or was in various stages of disrepair. It was falling apart. It was sagging one foot, 18 inches in many areas. It appeared . . . unsafe. * * * Some of . . . the pressurized [water] lines had been broken. The drain lines that lead into the septic or the county sewer were broken . . . the same on both properties. The air conditioning units were hanging by the power cables [I'd guess] 15 to 20 feet in the air, which, of course, poses a serious threat to anybody that walks . . . underneath them when the cable . . . unhook[s] itself from whatever connector or breaks. I noted at Mr. Stovall's, the whole bottom level of his deck was missing. * * * Mr. Buntin's dune walkover and much of his deck were sagging and unsafe [with] pieces missing. There was no . . . foundation on which to place a vehicle or anything for that matter underneath . . . the houses. I also noted . . . several onlookers . . . were using the area underneath the Stovalls' and Buntins' houses to access the beach, which was, in my opinion, extremely unsafe . . . [because of] falling five pound bricks and air conditioners hanging and wood falling off the side of the house. Tr. 82-83. The "crater" under the houses was not just a parking problem. Before the necessary repairs could be started, the understory had to be shored up. In the meantime, efforts were made to keep "onlookers" from using the area under the houses but they were not completely successful. Every morning that Mr. Jones visited the site at the beginning of his efforts, there was evidence left behind by people under the house the night before. Mr. Jones was of the same opinion as the Stovalls and the Buntins. For replacement of sand to work, there had to be a system for retaining the sand under the house. For several weeks, he conducted research by traveling up and down the beach discussing the issue with other contractors. Ultimately, Mr. Jones reached the conclusion that "the least invasive, most efficient . . . , environmentally friendly" system was a HESCO Basket System. HESCO Baskets HESCO Baskets are wire-framed open cell structures. One cell consists of four flat panels of wires of the same gauge. The "top" of the cell or basket is completely open as is the "bottom." Each of the four sides consist of horizontal wire rods spaced equally apart and welded to four similar-sized rods in a vertical position to form a panel of squares framed by the rods but which are mostly open space. The fours sides are bound together by a coil of wire of a gauge identical to the wire used in the rest of the structure. Attached to the sides on the inside of the cells is felt-like material that is water- permeable. Two baskets are created by joining three wire panels to an existing basket. Only seven panels, therefore, are needed to create two baskets since one of the panels is shared. Used in military applications to create revetment structures to protect aircraft and personnel and in river settings for flood control in places as diverse as Alaska and the Middle East, HESCO baskets also have commercial applications. These were investigated by Mr. Jones as he talked to other contractors in the area. Ultimately, he viewed the process of installation of HESCO baskets locally, obtained a list of installers from a HESCO basket distributor and picked Robert Klemen, an installer who worked in the area of the Stovall and Buntin properties to hire as a subcontractor under his supervision. Before installation, however, a permit was required. Under the DEP Final Emergency Order authorizing local governments to issue permits for temporary emergency protection seaward of the CCCL, separate permits for the Stovall and Buntin properties were issued by Walton County. The Walton County Permits On October 28, 2005, Billy Bearden, Building Official for Walton County, issued two building permits to Robert Klemen. The first, Permit No. SW398Dennis, (the "County Stovall Permit") was for 711 Eastern Lake Dr., the Stovall Property. The second, SW400Dennis, (the "County Buntin Permit") was for 701 Eastern Lake Dr., the Buntin Property. The County Stovall Permit gives Mr. Kleman permission for "TEMP SEAWALL STABLILIZING BASKETS." Department Exhibit 8. Similarly, the County Buntin Permit gives Mr. Kleman permission for "TEMP Stabilizing BASKETS." Each permit recited that "[t]he Florida Department of Environmental Protection in Hurricane Dennis Emergency Final Order 05-1700 is attached," and warned that "[p]ursuant to the FDEP emergency order, care must be taken for the protection of sea turtles, their nests, hatchlings and nesting habitat." Department Exhibit 8, the 7th and 15th pages of fifteen un- numbered pages. The two permits also recited the following: All temporary retaining walls (or other types of beach armoring), permitted as an emergency measure as a result of Hurricane Dennis and Katrina, must be removed within 60 days of completion or applied to be permitted through DEP as a permanent structure. * * * For ease in monitoring and control, Walton County will consider all temporary restraining walls complete no later than October 28, 2005 and therefore must be removed within (sic) 60 days of completion or by December 27, 2005, whichever is sooner (unless complete application made to DEP). Department Exhibit 8 (emphasis added.) Each permit contained a drawing of the permitted activity. The County Stovall Permit drawing depicts a system consisting of three rows of baskets, two on bottom and one on top, that runs for 70 feet seaward of the Stovall House and then in an "L-fashion" 30 feet to the west of the house. The baskets are shown to be 3 feet wide each so that the bottom row is 6 feet wide. The height of each basket is depicted as 4 feet so that the height of the structure would be 8 feet. The drawing is consistent with the representation at hearing that each basket within the vegetated dune the structure now supports is 3 feet by 3 feet by 4 feet. The drawing also shows a connection to the Buntin system to be installed to the east. The County Buntin Permit shows the same type of structure with three rows of baskets, two on bottom and one on top. The structure extends 60 feet to the east of the Stovall structure seaward of the Buntin house. Prior to construction, it was made clear to Mr. Jones that the "system needed to be as much within the footprint of the house," tr. 93, as possible. The information was communicated from both county representative who conducted inspections and DEP representatives who "were around the property during the process of doing the beach walkovers, as well as the HESCO systems . . .". Id. The HESCO Basket System was not designed to meet coastal armoring standards. Nor was it designed to minimize impacts to sea turtles. Installation Pursuant to the County permits, the Hesco Basket Container Systems were installed on the Stovall and Buntin properties over the course of several weeks. The official CCCL location of the installation is approximately 285 to 399 feet east of DEP's reference monument R-93 in Walton County with a project address of 701 and 711 Eastern Lake Road, Santa Rosa Beach. The purpose of the installation of the man-made structures, consistent with their design, is to assist the retention of sand beneath the understory parking area of the two houses. As depicted on the permit drawings, the Stovall and Buntin systems were unified into one structure, that is, connected so that the structure ran without a break seaward of the Stovall and Buntin houses. During the construction process, Mr. Jones saw and conversed with several DEP representatives who were taking pictures along the beach. Although Mr. Jones "acted firmly in the belief that there would be no problem getting a permanent permit for [the HESCO] structure," tr. 96, he was never told by any DEP representatives, either on site or in phone conversations with Department employees in Tallahassee, that the structure would be permitted permanently by the Department. He was not told that such a permit application would be denied, either, he simply "was never able to get an actual answer . . .". Id. The structure on the Buntin property was constructed as depicted on the permit drawing. There were two rows installed on the bottom and one row on top for a total height of 8 feet. The structure installed on the Stovall property, however, was more elaborate than what was shown on the permit drawing. "[T]he Stovall property has three on the bottom, then two in the middle and then one on the top stacked pyramid style." Tr. 97. Twelve feet tall, the HESCO structure installed on the Stovall property was four feet higher than specified by the County permit. The structures were covered with sand in order to "rebuild the dune," tr. 109, in other words, the HESCO Baskets were installed in such a way as to serve as the core of a restored dune feature. The purpose of the installation was to provide a means of stabilizing the sand under the houses to restore the under-story parking. The installation was complete on November 4, 2005. The sand wall installed by Mr. Jones and his crew was then plugged with sea oats that were watered in the hope that their establishment would encourage the creation of a dune. A Vegetated Dune Pictures introduced into evidence reveal that the HESCO structure installed by the Stovalls and the Buntins, the sand installed on top and around it and the planting of the sea oats has resulted in a well-vegetated dune. As Mrs. Stovall put it at hearing, "y'all have got to admits that's the prettiest set of sea oats y'all [have] ever seen in your lives." Tr. 296. By the time of hearing, the dune had been maintained for nearly four years without any more sand imported by human hands. There has occurred, however, some exposure of wires of the HESCO system. A corner of one of the baskets in front of the Stovall house was exposed at the time of hearing and a picture introduced into evidence showed exposure of the top of several baskets in 2007. Mrs. Stovall expressed a desire to add more sand and ultimately to restore the dune to its pre-Opal status which "would add five-and-a half feet and make [the dune] level with the deck." Tr. 298. No sand has been added since the installation in November of 2005, however, because of the uncertain outcome of this proceeding. The exposure to date of the HESCO Baskets is in all likelihood the result of wind. Wave action, should it reach the system and be strong enough, will cause even more exposure. In fact, the HESCO Basket dune is not likely to be able to withstand wave action from 15 and 25-year return storms and a storms of such strength could expose the entire HESCO Basket structure leaving a jumble and tangle of wires on the beach. A recent series of aerial photographs from 2004 to 2007 show that the dune position to the west of the Buntin/Stovall property is approximately 30-to-50 feet further landward. The dune created by the HESCO baskets, therefore, is more seaward and more interactive with coastal processes than the dune to the west making the HESCO basket dune less likely to survive wave action than the dunes to its west. Nonetheless, as of the time of hearing, the system has maintained its integrity since installation. After the installation, the Stovalls and the Buntins were under no illusion that they had done all that was required in the way of governmental permitting. They knew that the County permits were good for only 60 days. They knew that they needed a CCCL permit from the Department if the structure were to achieve permanent permitting status. For that, they turned to their Qualified Representative in this proceedings, Ong-In Shin. Mr. Shin duly filed a CCCL permit application. The Application and Action by DEP On June 28, 2006, the Department received two applications for permits for construction seaward of the CCCL. Both were filed by Mr. Shin. One was filed on behalf of the Stovalls, the other on behalf of the Buntins. Section 4., of the applications, which called for "[a] brief description of the proposed work, activity or construction," contains the description: "Coastal Armoring." By letter dated July 11, 2006, the Department requested additional information related to the application. Among the eight separate requests was a request for a description of the proposed activity: "Please describe the work done at the subject property for which this After-the-Fact application has been submitted." Department Exhibit 7, at 80. In the notes of the request for additional information there appears the following: Please be advised that structures to be protected must be eligible and vulnerable as per Rule 62B-33.051, F.A.C. * * * Id. at 82. DEP has been notified by the Florid (sic) Fish and Wildlife Conservation Commission that Hesco box structures require an incidental take permit from the U.S. Fish and Wildlife service. The application was deemed incomplete a number of times and specific information was requested for it to be deemed complete. During the course of DEP's correspondence and additional submittals by Mr. Shin on behalf of the Stovalls and the Buntins, the Commission wrote to the Department on May 10, 2007, about its concern with regard to sea turtles. Based on Mr. Shin's representation that HESCO boxes are designed to collapse if subject to wave attack, Robin Trindell, Ph.D., wrote on behalf of the Commission to DEP, "Sea turtles attempting to nest or hatchlings in an area with HESCO containers could become entangled in these collapsible structures. Therefore, we do not recommend that these blocks be installed in sea turtle nesting habitat." Id. at 49. The application was deemed complete on August 30, 2007. On November 28, 2007, the Department issued a notice of denial that was received by Mr. Shin on December 4, 2007. While the HESCO Box System was found to meet applicable siting requirements, it was found to have failed to meet coastal armoring criteria related to eligibility, vulnerability, and design. Furthermore, the Department concluded that "the construction of the HESCO Box Container System does not meet the Department requirements for . . . absence of significant adverse impact to marine turtles." Id. at 9. A December 17, 2008, memorandum from Mr. Shin, received by the Department on December 24, 2007, put DEP on notice of his clients' intent to appeal the denial of the permit. The memorandum requested a 60-day extension of time to research the issues associated with the denial before beginning the "formal appeal process." Id. at 2. Mr. Shin filed the Petition for Formal Administrative Hearing with DEP on February 15, 2008. It initiated this proceeding at DOAH when the Department on February 29, 2008, requested assignment of an administrative law judge to conduct the proceedings. The issues in this case fall under two broad categories: Coastal Armoring and impacts to marine turtles. Coastal Armoring "Armoring" is defined by Florida Administrative Code Rule 59C-33.001(5): "Armoring" is a manmade structure designed to either prevent erosion of the upland property or protect eligible structures from the effects of coastal wave and current action. Armoring includes certain rigid coastal structures such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures but it does not include jetties, groins, or other construction whose purpose is to add sand to the beach and dune system, alter the natural coast currents or stabilize the mouths of inlets. (emphasis added). There is no question that the Stovall/Buntin Hesco Basket System is a manmade structure. Its purpose is to retain the sand under the Stovall and Buntin houses. At the same time, its construction resulted in sand added to the beach and dune system. One thing is clear: the HESCO Basket System is not conventional coastal armoring. Unlike "seawalls, revetments, bulkheads, retaining walls or similar structures" listed in the rule as examples of coastal armoring, the construction of the HESCO System led to a vegetated dune. Coastal armoring is closely regulated under Chapter 161 of the Florida Statutes by the Department and its Bureau of Beaches and Shores because that chapter is "all about protection of the beach dune system." Tr. 337. Coastal armoring usually contravenes such protection. "Coastal armoring does not protect the beach dune system. It's purpose . . . is to protect upland development." Id. While the purpose of the HESCO Basket System is to protect upland development unlike typical coastal armoring, it has added not only sand to the beach but has resulted in the creation and presence of a well-vegetated dune. Prior to 1995, "coastal armoring was only authorized as a last case possibility . . . ." Tr. 337-338. And it was only authorized when approval was given at the highest level of the state executive branch of government, the Governor and Cabinet. But the law was changed in 1995 in recognition that property owners have a right to protect their property. The Coastal Armoring Rule was amended to set up eligibility, vulnerability, siting and design criteria that would strike a reasonable balance between protection of the beach dune system and a property owner's right to protect his or her property. The law was amended again in 2006 to incorporate a new technology for dune restoration: geotextile systems. HESCO Basket Systems use in coastal armoring is also a new technology when it comes to Florida's beaches and shores. Use of HESCO baskets was described at hearing as "very new", tr. 344, relative to the time of the filing of Stovall and Buntin application. If the HESCO Basket System constructed on the Stovall and Buntin properties constitutes "armoring," then it must meet the requirements of Florida Administrative Code Rule 62B-33.051 which govern "Coastal Armoring and Related Structures" (the "Coastal Armoring Rule"). These requirements include conditions related to "eligibility", "vulnerability", and "design," some of the bases upon which the Department's denial of the after-the- fact permit rests. See Fla. Admin. Code R. 62B-33.0051(1)(a) and (2). Mr. McNeal's testimony established that the HESCO Basket System does not meet the "eligibility," "vulnerability," and "design," criteria for coastal armoring. But the Coastal Armoring Rule also encourages applicants for coastal armoring to "be aware that armoring may not be the only option for providing protection." Fla. Admin. Code R. 62B-33.0051(1). To that end, applicants for would-be armoring "are encouraged to evaluate other protection methods . . . such as dune restoration." Id. The HESCO Basket System installed by the Stovalls and Buntins follows the encouragement of the rule: it is a protection method that has resulted in dune restoration. CCCL Permit General Criteria Regardless of whether the HESCO Basket System and the vegetated dune it now supports constitutes coastal armoring, the structure on the Stovall and Buntin property must meet the General Criteria contained in Florida Administrative Code Rule 62B-33.005 for issuance of CCCL permits. Applications for those permits must be denied "for an activity which . . . would result in a significant adverse impact . . .". Fla. Admin. Code R. 62B-33.005(3)(a). Impact assessments conducted by the Department "shall include the anticipated effects of the construction on . . . marine turtles." Id. Marine Turtle Behavior Marine turtles spend most of their lives at sea often foraging hundreds of miles from their nesting habitat. Adult females migrate from feeding grounds and their foraging areas and aggregate off shore beginning in May of nesting season, generally from May through August. Off shore, the female turtles wait for nightfall to swim ashore and crawl landward in search of a spot to nest. Four species of marine turtles typically nest in Walton County: the Loggerhead, the green turtle, the Leatherback and Kemp's Ridley. Because the Loggerhead and green turtle are by far the most prevalent on Walton County beaches, the Commission focused on their specific behavior when it presented the testimony of Dr. Witherington. The mechanics of crawling differ between Loggerhead and green turtles. Loggerheads use an alternating gait while green turtles have simultaneous butterfly-style strokes. Both species drag the plastron or "belly shell" using all four flippers. Their crawls enable them to scale slopes and penetrate dune vegetation but they are not able to crawl backward. They are capable of crawling up a slope that is steeper than one to one. At a location between the recent high water mark, often observable by a wrack line (floating seaweed washed ashore) and the crest of the primary dune, the female selects a spot. The female creates a pit that she can slide her body into it. Loggerheads do so by scraping sand from the front with their front flippers and by gathering sand from beneath at the posterior to push it behind. This behavior referred to as "body pitting" tr. 474, results in a pit that the turtle eases into at a slight angle posterior end-downward at the deepest part of the pit. Green turtles have similar body-pitting behavior but it is more elaborate. "A green turtle will . . . blast the sand out in front of it, dig an enormous pit . . . two or more feet deep and create a very large mound." Tr. 475. Beneath the body pit, the turtle digs an egg chamber. For Loggerheads the depth of the egg chamber is "a little over two feet . . . say 26 inches or so," tr. 482 from the surface of the sand. For a green turtle, the depth is closer to 3 feet. On average, clutch size for a Loggerhead is 115 eggs. The range is from 70-to-170 eggs per clutch. Average clutch size for green turtles in Florida is roughly 128 with a range from 70 to 200. Turtles and the Stovall/Buntin Property Assuming no obstacles such as an exposed HESCO Basket, a sea turtle would have no trouble making its way to the crest of the HESCO Basket dune on the Stovall/Buntin property. The Stovall/Buntin dune supported by HESCO baskets is mostly vegetated with sea oats. There is Seaside Evening Primrose and some Beach Morning Glory, too. As long as the turtles are not interfered with by the HESCO baskets, a sea turtle would have no problem nesting amidst the vegetation on the Stoval/Buntin dune. Heavily eroded beaches do not discourage sea turtle nesting behaviors. But where sea turtles choose to nest on a heavily eroded beach is altered by the erosion. Dr. Witherington explained: [F]ollowing a severe erosion event, . . . [t]he beach tends to be flatter and in some cases broader and with escarpment from erosion that has occurred. And almost invariably following severe erosion events . . ., sea turtles aim for the high ground. In part, because that is the only dry sand remaining on the beach, . . . [a]nd they're choosing the safest sites on the beach to nest. Tr. 485. Thus, the erosion that has occurred on the Stovall/Buntin property is not likely to deter sea turtles from nesting there. Almost all of the area seaward of the Stovall and Buntin houses is nesting habitat, but if a sea turtle chooses to nest there, the most likely place is somewhere on the dune created by the HESCO Baskets. Threats to Sea Turtles Sea turtles encounter numerous threats, impediments and hazards when they are attempting to nest on beaches visited by human beings as much as the beaches of Walton County currently. Coastal armoring is commonly recognized as a threat to sea turtle nesting because it serves as a barrier to sea turtle nesting habitat -- precisely the opposite of the Stovall/Buntin HESCO Basket-supported dune which is an appealing place along a severely eroded beach in which to nest. Man-made debris is a threat to sea turtles. There are numerous types of debris: monofilament line is one example. Holes in the sand dug by beachgoers, beach furniture and walkways are either barriers or can cause entanglement that can lead to sea turtle injury or death. If a turtle gets up on a sea wall and falls, the fall can seriously injure the turtle or result in death. Artificial lighting is a particularly dangerous and prevalent threat. The lighting can disorient both nesting turtle and hatchlings causing them to move away from the ocean or gulf. Death can result from dehydration in the morning sun, wandering inland and falling prey to predators, or ending up on highways and being struck by cars. In addition, there are natural threats to sea turtles. A variety of predators dig into sea turtle nest for the eggs. The eggs may be swept away when the sediment around the clutch is washed away. Inundation, as well, if over too long a period can destroy the eggs. Exposed HESCO baskets are a threat to sea turtles and their hatchling in multiple ways. The ways in which they could injure or kill a turtle were described by Dr. Witherington: HESCO baskets accessible to sea turtles would act as a barrier to a sea turtle reaching an appropriate nesting habitat. An open HESCO basket . . . could act as a trap, . . . [for] turtles that might end up inside the top of the basket itself, and then there's an entanglement effect that would probably be of very little concern for HESCO baskets that were not exposed, but when they do become exposed, the entrapment effect would be much . . . larger . . . Tr. 502. Dr. Witherington also described three problems that could be posed by an exposed HESCO basket shown in a photograph taken on the Stovall property and attached to a Site Inspection Report date November 19, 2007. See Department Exhibit 16P, at 9. These were first, "the pitfall hazard," tr. 504, second, a vertical fall that the turtle might take from atop an exposed basket, and, third, entrapment. As for entrapment, Dr. Witherington opined, "it may look to many that the open HESCO baskets don't leave much opportunit[y] for the sea turtle to become entrapped, but one thing we learned is that sea turtles often make their own traps," id., when presented with situation similar to that of an exposed HESCO basket. There is another hazard to sea turtles posed by a HESCO basket if the baskets were buried beneath where a nesting turtle was digging its nest. If the turtle were to dig into the basket and strike it, it could cause the turtle to abandon the site and return to the sea. If the dune that the HESCO Baskets support were to be washed away in a storm and the basket structure were to fail, the debris left would be a "particularly pernicious tangle of wire and mesh that would very much have the potential to ensnare sea turtles." Tr. 507. A Sea Turtle Take In Dr. Witherington's opinion, HESCO baskets constitute significant habitat modification or degradation that could significantly impair the essential behavioral pattern of breeding. If HESCO baskets killed or injured a marine turtle, therefore, they would constitute a "Take," as defined by Section 373.2431(1)(c)2., Florida Statues: "'Take' means an act that actually kills or injures marine turtles, and includes significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering." "Any person . . . that illegally takes . . . any marine turtle species, or the eggs or nest of any marine turtle species . . . commits a third degree felony, punishable as provided [by law.]" § 379.2431(1)(e)5., Fla. Stat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Coastal Construction Control Line Permit applied for by the Stovalls and Buntins be issued with the conditions listed in paragraph 110, above. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 30th day of November, 2009. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building, Room 108 620 South Meridian Street Tallahassee, Florida 32399-1600 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ong-In Shin Florida Coastal Development Consulting, Inc. 4654 East Highway 20 Niceville, Florida 32578 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At present Tony's Fish Market, Inc. t/a Tony's Fish Market, is the holder of license no. 23-1624-SRX, series 4-COP held with the State of Florida, Division of Beverage. Prior to September 1, 1974, Armand Cerami owned 50 shares of stock in Tony's Fish Market, Inc., which represented a 50 percent interest in that corporation. In addition, Armand Cerami held 50 shares of stock in Tony's Fish Market of Ft. Lauderdale, Inc., representing a 50 percent interest in that corporation and was the holder of 50 shares of Tony's Sweet Enterprises, Inc., which represented a 50 percent interest in that corporation. During the time period of September 1, 1974, Armand Cerami had been charged with violation of the Internal Revenue Laws of the United States, under a federal indictment no. 74-407-CR-JE, in the United States District Court for the Southern District of Florida. This charge was placed against Cerami for Internal Revenue Law Violations which allegedly took place on tax returns on the tax year 1968. In contemplation of a plea of guilty which Cerami intended to enter in the above cited case, he entered into a contract for purchase and sale of the corporate securities in the aforementioned corporations. Petitioner's Exhibit #2, admitted into evidence is a copy of the contract for purchase and sale of corporate securities, which was entered into between Armand Cerami and Pamela Ann Cerami, his wife, on September 1, 1974. The terms of the contract were that Pamela Ann Cerami would pay Armand Cerami $20,000 cash and would give to Armand Cerami a promissory note payable in the amount of $200,000, in ten equal installments of principal and interest at 6-1/2 percent payable on the anniversary date of the contract. On September 20, 1974, the Board of Directors of the three subject corporations accepted the resignation of Armand Cerami as the Secretary-Treasurer of those corporations, and elected Pamela Cerami as Secretary-Treasurer in Armand Cerami's stead. Those Board of Directors were Tony Sweet, Frank Sweet and Armand Cerami. Armand Cerami returned to federal court on October 18, 1974, and entered a plea of guilty to counts one and five of the aforementioned indictment, for which he was sentenced to three year on each count to run concurrently, but was given a split sentence of 6 months time in confinement, thereafter to be placed on a probationary period for 2-1/2 years. A copy of the judgement and commitment is Petitioner's Exhibit #1, admitted into evidence. They are felony offenses. Subsequent to his release from prison, Armand Cerami served as a co- manager and host of the licensed premises, Tony's Fish Market, located at 1900 N. Bay Causeway, North Bay Village, Florida, license no. 23-1624-SRX, series 4- COP and in the same capacity at Tony's Fish Market of Ft. Lauderdale, located at 1819 S.E. 17th Street, Ft. Lauderdale, Florida, license no. 16-1320-SRX, series 4-COP. He remained in this capacity until September 30, 1976, when a change in Section 562.13(3)(a), F.S. prohibited convicted felons from being managers of the licensed premises, licensed by the State of Florida, Division of Beverage. The change in the law took effect on October 1, 1976. At that point two separate individuals were hired as managers of the subject licensed premises. Armand Cerami remained in the position as host of those licensed premises, up to and including the date of the hearing. Although this title and this position was held by Armand Cerami, on December 16, 1976, while conducting a routine visit, beverage officer, William Valentine was told by Frank Sweet, a Director in the subject corporations, that Frank Sweet was in charge of the kitchen of the Tony's Fish Market of Ft. Lauderdale and that Armand Cerami was the real manager, ran the restaurant and was responsible for hiring and firing of employees. Pamela Ann Cerami was not shown to have any active interest in the management of the licensed premises. Pamela Ann Cerami as the Secretary-Treasurer in the three corporations which she purchased shares in, does not draw a salary from the operation of the two restaurants. Her background and financial involvement in the licensed premises, can be traced to certain trusts in her name and a certain gift from her husband, Armand Cerami. The joint composite exhibit #1, admitted into evidence in the hearing, shows that Pamela Ann Cerami, at one time Pamela Crumly, was a beneficiary of the estates of Gail Crumly and Mildred Crumly, her grandparents. Certain distributions of money were made to Pamela Ann Cerami from those estates. On April 3, 1970, she received $6,093.94; on July 3, 1970, she received $121.88; on October 5, 1970, she received $182.82; and on December 31, 1970, she received $925.65, which represented a partial distribution of her 1/2 interest in the Gail Crumly estate. As of April 1, 1970, she had been given $5,292.59 as a portion of the 1/3 distribution of her share in the estate of Mildred Crumly. The total value of her share in that estate being $16,157.02, and the conditions of her rights to the estate being set forth in the will of Mildred Crumly which is found in the joint composite exhibit #1. Pamela Ann Cerami had worked as an airline stewardess prior to her marriage to Armand Cerami and had certain funds from her employment in that capacity. Other funds of the marriage include a certificate of deposit in the Bank of Nova Scotia in Nassau, Bahamas in the amount of $18,000, at 8-1/4 percent interest, as deposited May 20, 1970 with a maturity of November 20, 1970. This certificate of deposit was in the name of Armand D. Cerami and/or Pamela Crumly now Pamela Ann Cerami. The interest received on that certificate of deposit was redeposited along with the principal and a second certificate of deposit was purchased on May 23, 1974 in the amount of $23,480.74, to become mature on November 25, 1974. This certificate was withdrawn on October 18, 1974 and the receipt of 10-1/4 percent interest was paid. The amount of interest thereby being $975.89. Copies of the above mentioned certificates of deposit may be found as part of the joint composite exhibit #1 admitted into evidence. Continuing an examination of the financial circumstances of Pamela Cerami and Armand Cerami, there is found a warranty deed from Willard H. Keland to Pamela Ann Cerami for certain real estate in Dade County, Florida, for which Pamela Ann Cerami paid Willard H. Keland the amount of $158,000. This deed is found as Petitioner's exhibit #4 admitted into evidence and was recorded on January 11, 1974. On that same date a closing was held on the property. Petitioner's Exhibit #5, admitted into evidence is a copy of the closing statement. Conditions of the closing was a cash deposit in the amount of $15,800 and $69,251.64 to close. A first mortgage in the amount of $67,500 and interest of $1,028.75 was given to the Miami Beach First National Bank. The $158,000 paid for this estate corresponds to a gift which was given by Armand Cerami to Pamela Ann Cerami in the amount of $158,000 as shown in the gift tax return, a copy of which is Petitioner's Exhibit #6, admitted into evidence. The effective date of the gift is established in the gift tax return as February, 1974. The federal income tax return filed by Armand Cerami for the year 1974, shows the sale of the stock of the three corporations. That income tax return would further show the $20,000 installment sale payment, a portion of which was treated as income to Armand Cerami. Finally, that return shows $13,000 of interest which was treated as income to Armand Cerami. On October 1, 1975, Pamela Ann Cerami gave a first mortgage on the property that she had paid $158,000 for, this mortgage being given to Bob Erra, as trustee. A copy of the mortgage deed is found a Petitioner's Exhibit #9, admitted into evidence. The amount of the mortgage was $40,000 and the proceeds of the mortgage amount were distributed as $7,000 to Pamela Cerami and $33,000 to Armand Cerami. These distributions were placed as time certificates of deposit with the Pan American Bank of West Dade, copies of which are found as Petitioner's composite exhibit #8. The amount of interest returnable on the time certificate of deposit held by Armand Cerami is shown in his 1975 federal income tax return. Tony's Fish Market, Inc. t/a Tony's Fish Market, made application with the State of Florida, Division of Beverage, to change Armand Cerami as Secretary-Treasurer of Tony's Fish Market Inc. and substitute Pamela Cerami as Secretary-Treasurer of that corporation and to transfer the stock for ownership in the licensee corporation from Armand Cerami to Pamela Cerami. This change of officer and transfer of stock ownership involves the license no. 23-1624-SRX, Series 4-COP. This application was denied by letter of June 16, 1975, from the Director of the Division of Beverage. Subsequent to the sale of the stock and the removal of Armand Cerami and the substitution of Pamela Cerami as the Secretary-Treasurer of the aforementioned corporations, an application was made with the State of Florida, Division of Beverage to transfer the ownership of the license of Tony's Fish Market, Inc. to Tony's Fish Market, Inc. and Tony's Sweet Enterprises, Inc. In addition application was made to chance the trade name of the restaurant from Tony's Fish Market to Tony's Fish Market Restaurant. This application involved the same license no. 23-1624-SRX, series 4-COP. This latter application for transfer of the license and the change of the trade name was denied by a letter of the Director of the Division of Beverage dated August 21, 1975. In fact, Armand Cerami had been convicted of a felony, and is interested in an indirect way in the licensed premises.
Recommendation It is recommended that the applications to change the officer, transfer the stock ownership, transfer the license, and change the trade name, in license no, 23-1624-SRX, series 4-COP, set forth in this hearing be denied. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Division of Beverage The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Tobias Simon, Esquire 1492 S. Miami Avenue Suite 208 Miami, Florida 33130 Sy Chadroff, Esquire Suite 2806 120 Biscayne Boulevard North Miami, Florida 33132
The Issue As provided in the notice of hearing, the issues for disposition in this proceeding are whether agency statements within a memorandum and notice of Final Executive Order issued by the Department of Environmental Protection on July 5, 1996 are rules subject to sections 120.535 and 120.54, Florida Statutes, and if so whether the statements violate those sections. 1/ Petitioners pled only a violation of section 120.54, Florida Statutes, and contend that the remedy they seek, a determination of the invalidity of the agency statements, is available without recourse to section 120.535, Florida Statutes. At hearing, the parties, including Petitioners, availed themselves of the opportunity to elicit evidence related to section 120.535, Florida Statutes.
Findings Of Fact Petitioners are shellfishers who harvest and relay in the affected areas in Brevard County, Florida. Intervenor is a resident of Indian River County who utilizes the areas affected by the Department of Environmental Protection (agency, or DEP) statements at issue in this proceeding. The standing of these parties is uncontroverted. Respondent, DEP, is the state agency charged with the administration, supervision, development and conservation of the natural resources of the state, as provided in section 370.013, Florida Statutes. "Saltwater fish" includes shellfish, among others. Section 370.01(2), Florida Statutes. DEP is given the authority in section 370.021, Florida Statutes, to make, adopt, promulgate, amend and repeal all [rules and regulations] necessary or convenient for the carrying out of the duties, obligations, powers, and responsi- bilities conferred on the department or any of its divisions. [Emphasis added] Persons violating any of the rules and regulations adopted under the agency's authority are guilty of a misdemeanor. Section 370.021(2), Florida Statutes, describes penalties for various violations of Chapter 370 or the rules of the agency or any rule of the Marine Fisheries Commission. Section 370.021(3), Florida Statutes, provides that [[r] ules and regulations] shall be admitted as evidence in the courts of the state when accompanied by an affidavit from the secretary of the department certifying that the [rule or regulation has been law- fully adopted, promulgated, and published]; and such affidavit shall be prima facie evidence of proper adoption, promulgation and publication of the rule or regulation. [Emphasis added] Section 370.071(l), Florida Statutes, provides, in pertinent part, that DEP ... is authorized to adopt by rule regulations, specifications, and codes relating to sanitary practices for catching, handling, processing, packaging, preserving, canning, smoking, and storing of oysters, clams, mussels, and crabs. Consistent with its specific authority in sections 370.021 and 370.071, DEP has adopted Chapter 62R-7, Florida Administrative Code, "The Comprehensive Shellfish Control Code." Included in the comprehensive code is rule 62R-7.004, Florida Administrative Code, which defines various classifications of harvesting areas, adopts by reference Shellfish Harvesting Area Atlas maps, and describes circumstances for opening or temporarily closing harvesting areas in the event of red tide outbreak or other emergencies or when other criteria are met. Rule 62R-7.005, Florida Administrative Code, also adopts by reference specific maps of growing areas and harvesting areas in the Shellfish Harvesting Area Atlas published by the agency. Rule 62R-7.005, Florida Administrative Code, describes boundaries of classified areas throughout Florida, county by county, and establishes operating procedures. Rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code, establishes conditionally approved, conditionally restricted and prohibited areas of Body D waters in Brevard County, Florida. The boundaries of each are described in explicit detail; further, temporary closing to shellfishing is provided for when ... five day cumulative rainfall as measured in the immediate vicinity meets or exceeds 2.68 inches. The area will be reopened when bacteriological levels meet standards as described in Rule 62R-7.004 and fecal coliform levels in shellfish return to normal background levels so that consumption of shellfish will not be a hazard to the public health. The history note to Rule 62R-7.005, Florida Administrative Code, reflects that the rule was new on January 4, 1987 and was amended May 21, 1987, August 26, 1987, August 10, 1988, August 31, 1988, October 27, 1977, July 18, 1989, August 30, 1989, November 11, 1990, January 9, 1991, November 5, 1992, May 6, 1993, May 31, 1994 and May l, 1995. Body D is a shellfish harvesting area located in the Indian River, south of the State Road 528 bridge and north of the State Road 518 bridge, in Brevard County. DEP conducted a sanitary survey of Body D pursuant to the National Shellfish Sanitation Program Manual and released its findings in a document dated June 13, 1996. The first sentence of the document, in a narrative introducing the detailed survey procedures and results, states: Reclassification of the Body D Shellfish Harvesting Area in Brevard County is proposed for the harvest of oysters, clams and mussels [through amendment to 62R-7.005 (29)], the Comprehensive Shellfish Control Code. [Respondent's exhibit no. 5, emphasis added] The narrative summarizes the proposed classification changes, by total acreage, and projects an adverse economic impact due to increased closures. The narrative further states that the current classification of Body D is based on a comprehensive survey conducted in 1988. The National Shellfish Sanitation Program, of which Florida is a voluntary member, requires that a complete survey be conducted at least every twelve years, with updates annually and triennially (every three years). On July 5, 1996, DEP issued a Notice of Final Executive Order with an attached detailed description of the boundaries of conditionally approved, conditionally restricted and prohibited areas within Body D, "Effective August l, 1996." The attachment to the notice describes the management procedures governing temporary closings. Also attached to the notice was a map of the new classifications boundaries. The notice states that "[t]he order will remain in effect until administrative procedures are completed to amend rule 62R-7.005, Florida Administrative Code." DEP also issued on July 5, 1996 a memorandum to "Interested Parties," describing the reclassification of Body D for harvest of shellfish as follows: Effective August l, 1996, the Department of Environmental Protection reclassified Body D for the harvest of oysters, clams, and mussels. Body D is located in the Indian River, south of State Road 528 Bridge and north of the State Road 518 Bridge. A public workshop was conducted March 22, 1996 in Melbourne to get input on the proposed reclassification. The reclassification will increase the Conditionally Approved area by 404 acres, increase the Conditionally Restricted area by 6,075 acres, and increase the Prohibited area by 1,979 acres. Also, 9,116 acres were classified that were Unclassified; portions of this area were used for relay activities. Currently, the Conditionally Approved and Conditionally Restricted areas close when five-day cumulative rainfall measured at the DEP Rockledge Gauge exceeds 2.68 inches. Beginning August 1, 1996, the Conditionally Approved management plan will temporarily close when two-day cumulative rainfall measured at the Rockledge Waste Water Treat- ment Plant exceeds 0.44 inches, and the Conditionally Restricted management plan will temporarily close when two-day cumulative rainfall measured at the Rock- ledge Waste Water Treatment Plant exceeds 1.29 inches. The estimated number of days per month that the Conditionally Approved area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 21 days and an average 8.2 days per month. The estimated number of days per month that the Conditionally Restricted area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 15 days and an average 2.9 days per month. Maps are available that illustrate the shellfish harvesting area classifications at the DEP shellfish office in Palm Bay. The mailing address of this office is 250 Grassland Road, SE, Room 149, Palm Bay, Florida 32909. You may call your local DEP Marine Patrol Office or the DEP Shellfish Office at 407/984-4890 to the open/closed status of the area for shellfishing. (Petitioners' exhibit no. 2) As described in the Notice of Final Executive Order and the memorandum, the reclassification substantially altered the classification descriptions and the management practices found in rule 62R-7.005(29), Florida Administrative Code. The reclassifications were not adopted as a rule amendment pursuant to section 120.54, Florida Statutes. Instead, on September 20, 1996 DEP published notice in the Florida Administrative Weekly, Volume 22, number 38, page 5397, that it proposed repealing rule 62R-7.005, Florida Administrative Code, in its entirety, and amending rules 62R-7.001 and 62-7.004, Florida Administrative Code: * * * PURPOSE, EFFECT AND SUMMARY: This amendment proposes to repeal a rule containing references to shellfish harvesting area maps, the detailed verbal descriptions of shellfish harvesting areas classification boundaries, and criteria for temporary closure, reopening, and monitoring of shellfish harvesting areas. The rule proposed for repeal is 62R-7.005 because it was identified as procedural. An address and telephone number were provided in 62R-7.004 where the information currently contained in 62R-7.005 will continue to be made available to the public. This approach provides for reclassifications through the Governor's delegation of authority to the Division of Marine Resources. Repeal of the rule is in accor- dance with Governor Chiles' rule reduction initiative. The Department will continue to conduct public workshops and hearings and incorporate pubic input that is consistent with maximizing the harvest of shellfish and protection of public health. Additionally, this amendment proposes to update a 1993 version with a 1995 version of the National Shellfish Sanitation Program Manual of Operations, Part I and Part II, that is incorporated by reference. SPECIFIC AUTHORITY: 370.021(l), 370.071(l) FS. LAW IMPLEMENTED: 370.071 FS. DEP has closed harvesting areas in the past without following the section 120.54, Florida Statutes, amendment procedures. The record in this proceeding does not reflect whether those changes or closures were on a temporary or emergency basis as provided within rules 62R-7.004 and 7.005, Florida Administrative Code. DEP has never opened up new, previously unclassified, areas for harvesting without a formal rule amendment and has not been challenged in the past. DEP concedes that the regulatory content of the Final Executive Order supersedes rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code: Q. I want to clarify one aspect of your testimony, Mr. Heil, because I think you suggested that if a hypothetical individual were to go into Body D today and to harvest shellfish pursuant to a classification contained in Rule 67R-7.005, that is to say his conduct would have been lawful under the standard contained in that administrative rule, but his conduct is in discord or isn't in compliance with the standard for Body Water D contained in the final executive order which is the subject of this dispute today. Am I correct that it was your view that that person would be subject to present criminal prosecution for that act? A. If the area in question from harvest was previously allowed in the classification effective August 1st by the July 5th memorandum was not now allowed for harvest, then that person would be subject to arrest by the Florida Marine Patrol. Q. And prosecution and conviction? A. Correct. (Transcript, pp. 131-2) The National Shellfish Sanitation Program (NSSP), of which Florida is a voluntary member, is a consortium of federal officials (including the Food and Drug Administration, Environmental Protection Agency and National Marine Fisheries), state officials from state shellfish control agencies, and members of the shellfish industry. DEP contends that its participation in the NSSP and obligation to comply with the National Shellfish Sanitation Program Manual of Operations (the manual) precludes compliance with section 120.54, Florida Statutes, rulemaking requirements. Florida has been criticized for moving too slowly in reclassifying areas, but the record in this proceeding does not establish that delay is because of rulemaking requirements. The manual is adopted as a rule by reference in rule 62R-7.001(5), Florida Administrative Code. The manual provides, in pertinent part: (Both the 1993 version currently adopted and the 1995 version proposed for adoption are precisely the same in this regard.) Public Health Explanation The NSSP gone [sic] beyond the original objective set forth in the 1925 Conference of insuring that shellfish shipped interstate would not be the cause of communicable disease. In the 1940's paralytic shellfish poison became a matter of public health concern and steps were taken to protect the public against this hazard. In 1957 it was recognized that shell- fish might concentrate certain radionuclides and that a radiation surveillance activity might become a necessary addition to the established procedures. In the 1960's and 1970's it became apparent that shellfish have the ability to concentrate poisons and deleterious substances such as metals, pesticides, hydrocarbons, etc. to potentially unsafe levels. To ensure the safety of shellfish, the State must supervise the growing, harvesting, relaying and transportation of shellfish. It is also important that shellfish be protected against contamination. [If State supervision is to be effective, the activity must be supported by legal authority. This authority may be either a specific law or a regulation]. The success with which the State is able to regulate the several components of the shellfish industry provides a measure of the adequacy of the statutory authority. [The unique nature of shellfish as a food also makes it necessary for the State shell- fish control agency to have authority to take immediate emergency action without recourse to lengthy administrative procedures, to halt harvesting and processing of shell- fish]. This authority should include placing restrictions on harvesting on the basis of a potential as well as an actual public health hazard. As examples, a State may find it necessary to close a shellfish growing area following a breakdown of a wastewater treat- ment plant or the unexpected finding of marine toxin(s), or when a growing area is implicated in confirmed illness. [Periodic revisions of State shellfish laws or regulations may be necessary to cope with new public health hazards and to reflect new knowledge]. Examples of changes or develop- ments which have called for revision of State laws include: (1) the increased used of pleasure boats with the resulting probability of contamination of shellfish growing areas with fresh untreated fecal material, (2) the conditionally approved area concept resulting from the construction of wastewater treatment facilities, (3) the effect of non-point source pollution, and (4) the ability of shellfish to concentrate certain radionuclides and hazardous chemicals. Experience has demonstrated that all actual and potential shellfish growing waters of the State must be classified by their sanitary suitability for shellfish harvesting. Harvesting should be permitted only from those areas which have been found by sanitary survey to meet the criteria of this Manual. Harvesting should accordingly be specifically prohibited from areas which do not meet the criteria, or which have not been surveyed, or which have outdated survey information. [Respondent's exhibit no. 4, pp. A2 and A3, emphasis added] CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to section 120.535, Florida Statutes. Standing of all parties has been established by stipulation. Petitioners allege that the Final Executive Order issued by the agency on July 5, 1996 is a rule that has not been promulgated by the procedures in section 120.54, Florida Statutes, and is therefore invalid. At the time that the Petitioners filed their challenge, the agency action was proposed to take effect on August 1st; thus, Petitioners invoked section 120.54(4), Florida Statutes, which provides: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Pursuant to section 120.52(8), Florida Statutes, a proposed rule is an invalid exercise of delegated legislative authority when the agency has materially failed to follow applicable rulemaking procedures set forth in section 120.54, Florida Statutes. The agency readily admits that it has not promulgated the material styled Final Executive Order as a rule. Nor has it commenced rulemaking proceedings to adopt the material. On the contrary, it has commenced proceedings to repeal all of rule 62R-7.005, Florida Administrative Code, including the portion which conflicts with the Final Executive Order. The agency claims foremost that the material in the Final Executive Order is not a rule; but that if it is a rule, the agency is entitled to the section 120.535, Florida Statutes, defense that rulemaking is simply not practicable. This latter argument is based, at least partially, on the insistence by federal members of the Interstate Shellfish Sanitation Conference that the agency improve its procedures. It is appropriate to consider this case under section 120.535, Florida Statutes. In Christo v. State Department of Banking and Finance, 649 So.2d 318 (Fla. 1st DCA 1995), the court determined that section 120.535, Florida Statutes, was the exclusive mechanism for challenging an agency's failure to promulgate rules. The case cited by Petitioners, Matthews v. Weinberg, 645 So.2d 487 (Fla. 2nd DCA 1994) Rev. denied (654 So.2d 919 (Fla. 1995), arose under substantially different procedural circumstances (an appeal from a circuit court decision in an injunctive proceeding) and does not establish authority for section 120.54 or 120.56 challenges to agency statements based on their non- promulgation as rules. Without citing section 120.535, Florida Statutes, Petitioners' petition still included the three allegations required by subsection 120.535(2)(a), Florida Statutes: that Petitioners are substantially affected by the statement; that the statement constitutes a rule under section 120.52(16); and that the agency has not adopted the statement by the rulemaking procedure provided in section 120.54. The parties had ample notice that the hearing was to be conducted pursuant to section 120.535, and testimony and evidence was presented with regard to the defenses available to an agency. Because section 120.535, Florida Statutes, in general, and more specifically in this proceeding, permits the consideration of factual matters presented by the agency, Petitioners' motion for summary final order is DENIED. Petitioners, however, still prevail in their challenge to the Final Executive Order. Section 120.535(1), Florida Statutes, provides: 120.535 Rulemaking required.- Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s. 120.54 as soon as feasible and practicable. Rulemaking shall be presumed feasible and practicable to the extent provided by this subsection unless one of the factors provided by this subsection is applicable. Rulemaking shall be presumed feasible unless the agency proves that: The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or The agency is currently using the rule- making procedure expeditiously and in good faith to adopt rules which address the statement. Rulemaking shall be presumed practi- cable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that: Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical out- side of an adjudication to determine the substantial interests of a party based on individual circumstances. The material contained in the Final Executive Order is a rule, defined in section 120.52(16), Florida Statutes, as follows: (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any require- ment or solicits any information not specifi- cally required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. It does not matter how the agency seeks to characterize its statement. Amos v. Department of HRS, 444 So.2d 43 (Fla. 1st DCA 1983). Proper characterization of a statement depends on the effect of the statement, not on the agency's appellation. Thus, the fact that DEP adopted similar statements as rules, then disavowed the necessity for such procedural refinements is immaterial. In twenty-plus years of experience under the Administrative Procedures Act, Chapter 120, Florida Statutes, the distinction between rule and order has been immutable. An agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. Balsam v. Dept. of HRS, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984) The agency statement contained in the Final Executive Order is generally applicable. Anyone intending to harvest shellfish within the many thousands of acres of water described in Body D is subject to the classifications. Anyone failing to comply is subject to criminal prosecution. The statement implements, interprets or prescribes law or policy: it establishes where, and under what conditions, shellfish may be taken; it establishes rainfall standards which affect temporary closings; it plainly, as stated in its counterpart rule 62R-7.005, implements section 370.071, Florida Statutes; it also implements rule 62R-7.004, Florida Administrative Code, and the National Shellfish Sanitation Program Manual of Operations, which is, itself, a rule. Significantly, the statement does not fall within one of the exceptions described in section 120.52(16)(a)-(g), Florida Statutes. It most closely resembles the specific exception provided in section 120.52(16)(d), Florida Statutes, for agency action which alters established annual harvest limits for saltwater fishing. This latter statutory exception underscores the notion that the legislature intended to otherwise include such statements within the definition of a rule. Since the statement at issue is found to be a rule, the agency is entitled to prove that rulemaking was not feasible and practicable. The circumstances surrounding the issuance of the Final Executive Order and the testimony of the agency's witness establish that rulemaking is both feasible and practicable. As provided in the document describing the comprehensive survey of Body D, Brevard County, Florida, the survey was conducted over many months and culminated in the survey report and in the reclassifications and changes in procedure described in the Final Executive Order. Prior to issuance of the Final Executive Order, the agency conducted a workshop. The agency had ample time to acquire knowledge and experience reasonably necessary to address its statement by rulemaking. The specificity of the text reflects that related matters have been sufficiently resolved to enable the agency to address the statement by rulemaking. Indeed, the agency has, in the past, addressed such statements by rulemaking and, for the present, still has such rules in effect. At the time of hearing, the agency had not proceeded with rulemaking procedures addressing the statement, although the text of the Final Executive Order disclosed an intention to so proceed. In the material filed post-hearing and officially recognized upon the request of the Intervenor and agency, the agency "addressed the statement" by announcing its intent to repeal the whole of rule 62R-7.005, Florida Administrative Code, including, of course, the subsection which is substantially amended in the Final Executive Order. The principles, criteria or standards for agency decision based on the Final Executive Order are detailed and precise and are established by agency fiat, rather than through an adjudicative process in which the substantial interests of a party are determined based on individual circumstances. Evidence in this proceeding establishes that the agency plainly intends to rely on the Final Executive Order as its basis for enforcement and prosecution and does not intend to develop on a case by case basis the standards it has already created. Nothing in the record of this proceeding supports the argument by the agency that its Final Executive Order is legally compelled by a higher federal authority or that the shellfish industry in Florida is jeopardized by rulemaking requirements. The National Shellfish Sanitation Program Manual of Operations supports, rather than discourages, the adoption of regulations. (See paragraph 17, above). Throughout Chapter 370, Florida Statutes, are references to regulations. (See, paragraphs 3 and 4, above.) Section 370.103, Florida Statutes, authorizes the agency to enter into cooperative agreements with the Federal Government, but also includes this manifest intent: When differences between state and federal laws occur, state laws shall take precedence. None contests the need for the agency to act promptly under certain circumstances to meet the exigencies of a reasonable enforcement program. According to the record in this proceeding, the Final Executive Order was not developed under such compulsion. Existing rules, the manual and even the Administrative Procedures Act provide for emergency responses to threats to public health, safety and welfare. Those are the procedures which the agency must employ. The "impressive arsenal" of remedies in the Administrative Procedures Act, acknowledged in State, ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) exists for the benefit of agencies as well as citizens at large.
The Issue The issue is whether Petitioner is entitled to additional compensation for fishing nets that he sold to the State of Florida under the Net Buy-Back Program.
Findings Of Fact Petitioner is a commercial fisher who is an affected person under the Florida Net Ban, which is set forth in the Florida Constitution, Article X, Section 16. Section 370.0805(5), Florida Statutes, which became effective on July 1, 1995, establishes the Net Buy-Back Program. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. The Legislature appropriated $20 million to the Seafood Workers Economic Assistance Account (the Account) to fund the payments authorized in Section 370.0805, as well as agency expenses in administering the program. Section 370.0805(3)(b) directs Respondent to purchase nets "according to the availability of funds on a first-come, first-served basis determined by the date of receipt of each completed application." By Net Buy-Back Application signed on July 5, 1995, and filed with Respondent at 7:39 am on the same day, Petitioner applied to sell nets to the State of Florida. His application form is completely filled out and shows two saltwater-product license numbers, both for vessels. The application form calls for the applicant to list the "TOTAL NUMBER OF YARDS OF EACH NET TYPE THAT YOU INTEND TO SELL." The form lists five categories of nets: gill (49 meshes or less); gill (50 meshes or more); beach, purse, seine; trawl; and trammel. The former gill net is a shallow-water gill net. The latter gill net is a deepwater gill net. Petitioner listed on his application "maximum allowed." He did not otherwise fill in the blanks as to types or yardage of nets. After checking a data base maintained by the Department of Environmental Protection, Respondent found that Petitioner held three saltwater- product licenses. Respondent thus processed Petitioner's application as though he had three licenses, not two. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 18 nets" and set an appointment for him to turn in the nets on September 14, 1995. A few days prior to September 14, a representative of Respondent telephoned Petitioner and told him that the net buy-back appointment was canceled and Respondent had shut down the program temporarily in order to make changes. The problem was that Respondent had discovered that the Account might be exhausted before Respondent had paid for all of the nets that fishers might lawfully seek to sell to the State. Respondent thus canceled Petitioner's appointment and suspended payment on outstanding vouchers while Respondent considered changes in its administration of the program. The purpose of the Net Buy-Back Program, as provided by Section 370.0805(5)(a), Florida Statutes, was to allow, "[a]ll commercial saltwater products licensees and persons holding a resident commercial fishing license" to apply to Respondent "to receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net fishing." The emphasis was on economic assistance. Section 370.0805(5)(a) authorizes Respondent to make payments only "in nonnegotiable amounts not intended to reflect the actual value of the nets." Section 370.0805(5)(a) assigns payment amounts of $3500 for beach, purse, or seine nets of at least 600 yards in length; $500 for trawls and shallow-water gill nets of at least 600 yards in length; and $1000 for trammel nets of at least 600 yards in length and deepwater gill nets of at least 600 yards in length. Section 370.0805(5)(a) states that, except for trawls, nets of less than 600 yards in length shall be "valued proportionately." Section 370.0805(5)(c) limits the number of nets that a commercial fisher could sell, based on his annual earnings from the sale of eligible saltwater products. The limits range from four nets, for licensees whose annual earnings average from $2500 to $4999 in earnings, to ten nets, for licensees whose annual earnings average more than $30,000. Respondent relied on another data base from the Department of Environmental Protection to determine the average yearly earnings of applicants. The Department of Environmental Protection maintains records of each licensee's trip tickets, which disclose earnings. The only other limit in the statute as to the type and number of nets to be purchased is that, under Section 370.0805(5)(d), "[n]o licensee may be paid for more than two ... trawls." Respondent reviewed the applications that it received from the initial fishers who filed applications. The purpose of the review was to determine whether the funds in the Account would be sufficient to cover the nets that the State was to be purchasing. Respondent found from the applications that seine nets represented a small percentage of the nets that fishers intended to sell to the State. Relying on this information, Respondent calculated the potential encumbrance of $6.5 million on the Account, based on an average payment that reflected the absence of a significant number of the most expensive seine nets. Applying liberal eligibility criteria, such as calculating the number of nets that each applicant could sell based on the number of licenses that he held, Respondent raised its estimate of the potential encumbrance to $8.775 million. But in recalculating the potential encumbrance on the Account, Respondent still assumed that the average payment per net would not be affected by a significant number of seines. Respondent began receiving nets in early August, 1995. Through the first three weeks of August, Respondent purchased seine nets at the relatively low rate that it had anticipated. After this point, fishers started turning in much larger numbers of seine nets than they had listed in their applications. During this first phase of the program, Respondent paid fishers for whatever types of nets they presented at their net buy-back appointment. Respondent paid a fisher entitled to sell six nets for seine nets if he turned in seine nets, even though he had listed only gill nets on his application. This policy jeopardized the solvency of the Account because the payments to fishers turning in all seine nets were much greater than the figures that Respondent had used in calculating the potential encumbrance on the Account. From the fishers' perspective, the program acquired an element of chance, as applicants with earlier appointment times-which did not necessarily correspond with earlier-filed applications-netted fine catches of economic assistance at the expense of their counterparts, upon whom destiny had bestowed later appointment times. By late August, the applicants began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Before long, Respondent was purchasing nothing but seines. After a brief period of trying to stay the course, Respondent decided on September 6, 1995, that it had to take action or else the Account would be exhausted before the State had purchased all of the nets listed on the applications. Respondent immediately suspended the program and developed new criteria to apply to all persons not yet paid for their nets. As of September 6 (retroactive to August 28), Respondent began the second phase of the Net Buy-Back Program. In this phase, Respondent paid for seine nets, but only up to the greater of the number of seines shown on the application or the number of seines based on past use of seines. Respondent determined the latter figure from the trip tickets, which also contained information as to types of catch, from which Respondent could infer the type of net used. As in the first phase, Respondent continued to insist the fishers turn in seines if they were being paid for seines. Petitioner's application lists no seine nets. But his application put Respondent on notice that Petitioner sought to sell as many nets, as at high a value, as the law would permit. This would mean seine nets. And based on his possession of three licenses, this would mean 18 seine nets, given Petitioner's earnings during the relevant period. Petitioner claimed that he turned in seine nets. If turned in during the first or second phase of the program, Respondent would have treated these nets as seine nets. But these nets were turned in during what became the third phase of the Net Buy-Buyback Program. After canceling Petitioner's net buy-back appointment, Respondent sent Petitioner a letter, setting another net buy-back appointment for October 2. The letter states that Respondent would purchase a total of 18 nets, but none could be a seine net. Dissatisfied with the effects of the restrictions introduced by the second phase of the program, Respondent added a third phase by promulgating an emergency rule defining "seine nets," effective October 2, 1995. This third phase, which did not change Respondent's policy of paying for the greater number of seines as shown on the application or the trip tickets, restricted the kinds of nets that fishermen could turn in as seine nets. Rule 38BER95-1 provides that, for the purpose of "the implementation of the Net Buy-Back Program" described in Section 370.0805(5): "Gill net" means a wall of netting suspended vertically in the water, with floats across the upper margin and weights along the bottom margin which captures fish by entangling them in the meshes, usually by the gills. Any net offered for the net buy-back program that consists of at least fifty-one percent (51 percent) gill net, shall be considered a gill net. "Seine" means a small-meshed net suspended vertically in the water, with floats along the top margin and weights along the bottom margin, which encloses and concentrates fish, and does not entangle them in the meshes. No net offered for the net buy-back program shall be considered a seine if the wings are composed of entangling mesh. * * * THIS RULE SHALL TAKE EFFECT IMMEDIATELY UPON BEING FILED WITH THE DEPARTMENT OF STATE. Effective Date: October 2, 1995 Under the emergency rule, Respondent's nets were not seines, but were gill nets because they were at least 51 percent, by area, gill net.
Recommendation It is RECOMMENDED that the Department of Labor and Employment Security enter a final order directing payment from the Account to Petitioner of the difference between the amount he has already received and the amount he would have received had all 18 of the nets that he delivered to Respondent been valued as seine nets. ENTERED on October 4, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 4, 1996. COPIES FURNISHED: Secretary Douglas L. Jamerson Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Charles L. Wilson, pro se 9210 West Robson Tampa, Florida 33615 Louise T. Sadler Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The Issue The central issue in this case is whether Petitioner's wholesale dealer's license should be approved for renewal.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: Henry's Seafood, Inc. was established and began doing business in 1978. From its inception Henry Torres has served as president of the company. Petitioner ceased doing business in May of 1986 when its application to renew its whole sale license to sell salt water products was denied by Respondent. On November 25, 1985, Henry Torres entered a negotiated plea of guilty to knowingly transporting with the intent to sell, offering for sale, and knowingly selling in interstate commerce approximately 120 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 law. As a result of the plea, a conviction was entered and Mr. Torres was required to pay a fine in the amount of $10,000. On November 25, 1985, Petitioner, Henry's Seafood, Inc., entered a negotiated plea of guilty to the same charge described in Finding of Fact, paragraph 2. Petitioner was then found guilty and was placed on probation for two years. The negotiated pleas entered by Petitioner were done in the interests of minimizing costs relating to the defense of the criminal actions. Moreover, said pleas were entered with the express understanding that Petitioner would be allowed to continue in business. Additionally, it was the intention of the trial judge in imposing sentence that Petitioner be allowed to continue in business. There was never a factual determination that Petitioner did possess undersized lobster tails. In fact, Petitioner received payment for some of the lobster tails which had been seized. Mr. Torres denied having violated either the Lacy Act or Florida Law. The lobster tails were not the product of Florida but had been caught in waters elsewhere. The lobster tails seized from Henri's were combined with all of the lobsters seized from other business. It was impossible to determine how many, if any, were undersized. When Petitioner applied for the renewal of its license, a disclosure was given as to the conviction described in Findings of Fact, paragraphs 1 and 2.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order approving Petitioner's renewal application and placing said license on probation for a period of two years. DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (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. 86-2394 Rulings of the Proposed Finding of Fact submitted by Respondent 1. Rejected, outside the scope of evidence Submitted at the final hearing. 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, The MG Herring Group, Inc. (MG Herring), was an employer of Petitioners.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as Manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as Manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group) operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager, and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order denying the Petitions of all Petitioners. DONE AND ENTERED this 11th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 11th day of May, 2018.
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but respondent filed a motion for continuance which was granted by the Hearing Officer and the hearing was rescheduled for January 18, 1978. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that respondent had adequately been placed on notice as to the nature of the offense charged and due to the fact that the Notice to Show Cause had been sent by certified mail to respondent and that the receipt thereof on August 13, 1977, by an authorized agent of respondent was not contested. Further, respondent's motion for continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.
Findings Of Fact Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle, 515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l) An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3) On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office. However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin. This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately 15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized 265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)
Recommendation That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley,. Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
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
