The Issue Whether Respondent violated Section 370.142(2)(c), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact The terms of the settlement agreement between the parties are set forth in the following paragraphs. The parties stipulated to the factual basis alleged in Case No. 97-4209. As set forth in the citation dated August 7, 1997, Respondent Jorge Cabrera (Cabrera) was fishing 130 untagged crawfish traps. This was the second time within a 24-month period that Cabrera was in violation of Section 370.142(2)(c), Florida Statutes. Petitioner, Department of Environmental Protection (Department), agrees to abate the notices that form the basis for Case Nos. 97-4416, 97-4485, and 97-5005 on the following terms and conditions: Cabrera shall immediately pay a fine of $5,000 to the Department. Cabrera shall have his Saltwater Products License (SPL-44525) and all endorsements thereto, C-9049, X-1615, V-7859, ML-887 and RS (current RS expiring June 30, 1999), suspended for five years beginning July 1, 1998, and continuing through the end of the 2002/2003 license year. It is specifically recognized by the parties that the SPL and endorsements currently held by Cabrera remain active until and through the close of business hours (5:00 p.m.) June 30, 1998. The parties agree that the license is suspended for five years, but that at the end of the five-year period, Cabrera is otherwise eligible to reapply for an SPL and the endorsements currently held on the 1997/1998 SPL license, which are the Restricted Species (one-year eligibility remaining), Crawfish, Blue Crab, Stone Crab, and Marine Life endorsements. In this case only, as part of the parties' settlement agreement, the Department agrees that the statutory requirements for renewal of the Crawfish and Stone Crab endorsements and specifically the currently mandatory every September 30-renewal-application deadline for the Stone Crab renewal are tolled during the suspension period. The qualifying period for the RS endorsement is tolled only as to the time currently remaining for requalification on the existing license, which would be one year remaining eligibility. Upon renewal of the SPL with endorsements application for the 2002/2003 license year, eligibility and time remaining will resume from what Cabrera had at the time the suspension became effective. The time periods tolled begin to run again on July 1, 2002, whether the SPL holder has applied for reactivation of his SPL with endorsements or not. Specifically, if there is no application for an SPL with RS endorsement within one year of July 1, 2002, the one year's eligibility remaining from the 1997/1998 license expires. Any time that has expired after July 1, 2002, counts, and the time remaining to requalify for the RS will be whatever time remains from the one-year eligibility which begins to run on July 1, 2002, and expires on June 30, 2003. For example, if the application is received by the Department in September 2002, the applicant would have only nine months of RS eligibility remaining. Under current license application procedures, the earliest reapplication that may be submitted will be in April 2002 for the 2002/2003 license year. Cabrera shall have only until the close of the current year transfer-period to transfer his lobster-trap certificates. Any certificates not transferred are subject to forfeiture if they are not maintained pursuant to Section 370.142, Florida Statutes, during the license suspension period. All fines and fees must be paid to the Department before the transfers can be made. The Department will expedite the providing of forms, processing, and record activity, and Cabrera will expedite submittal of completed application(s) to allow reasonable time to accomplish any transfers or other record activity prior to the close of the transfer period. All traps (lobster and stone crab) must be removed from the water by the end of the fishing season. Any of Cabrera's traps that may become subject to disposition under the trap retrieval program (Section 370.143, Florida Statutes) must be handled as appropriate, even if the circumstances occur after the time the license suspension becomes effective. The parties agree to bear their own costs and attorney's fees associated with these proceedings. The parties agree that breach of the settlement agreement between the parties will revive all rights and remedies available to the non-breaching party that the party had against the other prior to entering into the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which incorporates the provisions of the Settlement Agreement between the parties. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 M. B. Adelson, IV, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 John A. Jabro, Esquire 90811 Overseas Highway, Suite B Tavernier, Florida 33070
The Issue The issue presented for decision herein is whether or not the Respondent, J & M Seafoods, Inc., processed, sold and delivered food (seafood) where the net weight of the containers were less than that stated on the containers. If so, what, if any, disciplinary sanction should be imposed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. J & M Seafoods, Inc., Respondent herein, is a processor and packer of seafoods in Hialeah Gardens, Florida. On August 11, 1983, frozen lobster tails processed and packed by J & M Seafoods, Inc. were sold to Florida fish distributors in Jacksonville, Florida. Those lobster tails were inspected by a representative of the Petitioner, Robert Bailey, inspector. Inspector Bailey visited the warehouses of Florida fish distributors and inspected approximately 72 boxes of lobster tails which were labeled for ten pounds (160 ounces each) . Inspector Bailey weighed each ten pound box with ice glaze on the product. Inspector Bailey thawed the product and the net weight found for the individual boxes averaged 96 ounces or 64 ounces less than the claimed weight of 160 ounces. (Petitioner's Exhibit 1) Inspector Bailey thereafter resealed the boxes and placed a Stop Sale Order after the boxes were retaped with Petitioner's Stop Sale Order attached thereto. Inspector Bailey subsequently authorized the movement of the goods under the Stop Sale Order and the product was transferred back to the Respondent's warehouse in Hialeah Gardens, Florida. (Petitioner's Exhibit 3) Armando Esceto, an agriculture and produce specialist (food inspector) employed by Petitioner, inspected the Stop Sale product at the Respondent's warehouse in Hialeah Gardens. One of Respondent's agents, a Mr. Miranda, identified the boxes and advised that he sold the product to a processor in the Jacksonville area. (Petitioner's Exhibits 4 and 5) Inspector Esceto rechecked the Stop Sale product and noted that the actual weight was 94 ounces versus the claimed weight of 160 ounces. Sometime thereafter, Inspector Esceto again was summoned to the Respondent's warehouse to recheck the product and found that it fell within the allowable weight discrepancy. He therefore issued a release notice for the product to be sold. (Petitioner's Exhibits 9, 10, and 11) John Rychener, Petitioner's Bureau Chief for the Food Grades and Standards Division, was in charge of the overall investigation of the subject case by the Petitioner. Frozen lobster tails, on the average, sell for approximately $6.10 to $6.20 per pound. The product in question, as originally packed, processed and sold, contained approximately 40 percent ice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Florida Department of Agriculture and Consumer Services, impose an administrative fine of $1,500 on Respondent for violations as set forth herein above. RECOMMENDED this 16th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 16th day of May, 1984. COPIES FURNISHED: Frank A. Graham, Jr., Esquire Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32301 Michael I. Rose, Esquire Roberts Building Suite 303 and 330 28 W. Flagler Street Miami, Florida 33130 John Rychener Bureau Chief Food Grades and Standards Division Department of Agriculture Mayo Building Tallahassee, Florida 32301
Findings Of Fact Petitioner is the owner and developer of real property in Brevard County, Florida. Petitioner applied to DER for a development permit to construct three wooden docks and retain an existing wooden dock on its property. The docks were designed to provide a total of 58 mooring slips. On March 13, 1983, the Department issued an Intent to Deny the requested permit, On March 10, 1983, Petitioner filed a petition for a formal 120.57(1), Florida Statutes, hearing on DER's intent to deny the permit application. DER's Intent to Deny asserted DER jurisdiction under Chapters 403 and 253, Florida Statutes and Rule 17-4.28 and 17- 4.29, Florida Administrative Code. DER contends that the construction of the proposed docks was to be conducted in areas within DER jurisdiction under Rules 17-4.28(2) and 17- 4.29(1). Additionally, DER asserted that the proposed project was located in Class II waters approved for shellfish harvesting, and that dredging in those areas was prohibited by Rule 17-4.28(8)(a), Florida Administrative Code, which provides, in pertinent part, as follows: The Department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits for certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. . . . The parties have stipulated, and the record otherwise established, that Petitioner is substantially affected by Rule 17-4.28(8)(a), which is challenged in this proceeding, by virtue of the fact that DER asserts that rule as a grounds for denying the requested permit. Both Petitioner and Respondent have submitted proposed findings of fact concerning whether the driving of pilings for the construction of the dock constitutes "dredging", so as to invoke the prohibition against such activities contained in Rule 17-4.28(8)(a). It is specifically determined that these facts are irrelevant to the issue to be determined in this cause, as will more fully hereinafter appear.
The Issue Whether the application of Respondent Bradley Development's agent, James M. Stilwell, for a Gopher Tortoise Relocation Permit should be granted if the survey markers identifying the tortoise burrows are no longer present.
Findings Of Fact At all times material to these proceedings, James M. Stilwell was the agent of Respondent Bradley during the application process for successive Gopher Tortoise Relocation Permits from FGFWFC. Respondent Bradley currently seeks the permit because it plans to develop the site in North Fort Myers that the gopher tortoises currently inhabit. Site development plans preclude the creation of an on-site gopher tortoise habitat. The proposed project is a low income, federally supported housing development known as the Barrett Park Development. The permit originally issued for the proposed gopher tortoise relocation expired on August 31, 1991. Respondent FGFWFC is the regulatory agency with permitting jurisdiction over the proposed gopher tortoise relocation activity. The gopher tortoise is classified as "a species of special concern" in Florida. FGFWFC issues permits regarding this species upon its reasonable conclusion that the permitted activity will not be detrimental to the survival of this wildlife species in Florida. Petitioner Homeowners is a Florida corporation. It intervened in this permitting proceeding to protect the Barrett Park Development gopher tortoises as these tortoises are a natural resource of this state. The Motion for Administrative Hearing filed by Petitioner disputes the appropriateness of the Intent to Issue filed by FGFWFC on November 13, 1991. There is one area of controversy identified by Petitioner in its request for a formal hearing which the original Hearing Officer allowed to be heard in this 120.57 proceeding. This dispute involves the current condition of the survey markers placed at the site to identify the location of the various tortoise burrows. Petitioner contends a new survey should be required by FGFWFC before the tortoises are excavated from burrows by non-harmful means. The guidelines for gopher tortoise relocations established by FGFWFC provide as follows, in pertinent part: No more than four weeks prior to relocation, all potential gopher tortoise habitat ... on a given development site should be thoroughly and systematically surveyed using appropriate, biologically sound methodology. Permit applications are encouraged to submit preliminary survey methodology proposals for evaluation, which should include estimates of the total number of tortoises on a subject site, ... and a general characterization of the habitat. The Notice of Intent to Issue Permit does not specifically provide that Respondent Bradley has to adhere to FGFWFC's "Gopher Tortoise Relocation Guidelines" as one of the permit conditions. Petitioner has a bona fide and direct interest in the result of this administrative hearing which concerns permitting activity that could be detrimental to the survival of a wildlife species in Florida designated as a "species of special concern" pursuant to Rule 39-27.005, Florida Administrative Code. The pleadings filed by Petitioner together with the evidence it presented at hearing demonstrate that its involvement in this permit review was for a legitimate purpose. The number of gopher tortoises to be relocated was not set forth in the Notice of Intent to Issue Permit. The application, however, utilized the FGFWFC's formula and conversion factor of 0.614 in relation to the 56 burrows considered to be active in the most recent survey conducted between September 3- 7, 1990. This converts to a determination that 35 gopher tortoises will be relocated. The computation was completed as follows: Conversion factor x number of active burrows = number of gopher tortoises relocated. Mathematically, the computation arrives at the conclusion that 35 gopher tortoises will be relocated [0.614 x 56 = 34.384 or 35].
Recommendation Based on the foregoing, it is RECOMMENDED: A Final Order be entered approving Respondent Bradley's application for a Gopher Tortoise Relocation Permit made through Mr. Stilwell for the Barrett Park site. The "Gopher Tortoise Guidelines" should be attached to the permit and incorporated into the permit as a permit condition. The number of gopher tortoises to be live-captured by non-harmful means should be expanded if the final survey demonstrates the estimated number of gopher tortoises is above the current approximation of 35 when the number of active burrows is recounted in the final survey. The FGFWFC's formula conversion factor should be utilized in this final determination. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #2. Rejected. Contrary to fact. Rejected. Contrary to fact. Rejected. Contrary to fact. Rejected. The FGFWFC does not require the submission of FLUCCS maps as part of its evaluation procedure. Thus, the lack of such a map as part of the evaluation process does not fatally flaw the permit review. Improper legal and factual conclusion. Rejected. Contrary to fact. Rejected. Contrary to fact. Rejected. Speculative and argumentative. Rejected. Improper legal conclusion. Respondent Bradley's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. Accepted. Accepted. Accepted. Omitted from proposed findings of fact submitted. Omitted from proposed findings of fact submitted. Rejected. Contrary to fact. See HO #10 - #11. Accepted. Accepted as to application requirements only. Accepted. See Preliminary Statement and HO #5. Accepted. Accepted. Accepted. Accepted. See HO #6 - #7. Accepted. Accepted. Accepted, except for number of tortoises to be relocated. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Respondent FGFWFC's proposed findings of fact are addressed as follows: Accepted. See HO #4. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. Accepted. Accepted. See HO #1 and #5. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #10 - #11. Accepted. COPIES FURNISHED: STEVEN R MAXWELL/QUALIFIED REPRESENTATIVE 232 LAGOON DR FORT MYERS FL 33903 KENNETH McLAUGHLIN ESQ ASSISTANT GENERAL COUNSEL FLORIDA GAME & FRESH WATER FISH COMMISSION 620 S MERIDIAN ST TALLAHASSEE FL 32399 1600 GERI WALKER ESQ PEPER MARTIN JENSEN MAICHEL & HETLAGE 2000 MAIN ST - STE 600 FORT MYERS FL 33901 JAMES ANTISTA ESQ GENERAL COUNSEL FLORIDA GAME & FRESH WATER FISH COMMISSION 620 S MERIDIAN ST TALLAHASSEE FL 32399 1600 COLONEL ROBERT M BRANTLY EXECUTIVE DIRECTOR FLORIDA GAME & FRESH WATER FISH COMMISSION 620 S MERIDIAN ST TALLAHASSEE FL 32399 1600
The Issue Should Petitioner discipline Respondent's shellfish processing plant certification license (license) for a period of seven (7) working days based upon alleged violations of Chapter 62R-7, Florida Administrative Code?
Findings Of Fact In accordance with Section 370.071(1), Florida Statutes, and Chapter 62R-7, Florida Administrative Code, Petitioner has regulatory authority relating to the sanitary practices for catching, handling, relaying, depuration, packaging, preserving, and storing of shellfish products. Pursuant to that authority, Petitioner licenses shellfish processing plants that operate in Florida. In accordance with those provisions, Respondent has been licensed to operate a shellfish processing plant in Apalachicola, Florida. At times relevant to this inquiry, Respondent conducted its business pursuant to the license. Chapter 62R-7, Florida Administrative Code, grants Petitioner the authority to make unannounced inspections of Respondent's plant while the plant is being operated, as frequently as necessary, to assure that adequate operational and sanitary conditions are maintained. As a means to control Respondent's conduct observed during those inspections, Chapter 62R-7, Florida Administrative Code, grants authority to Petitioner, in certain instances, to suspend or revoke Respondent's license. Petitioner performed an inspection of Respondent's plant on December 5, 1996. The inspection was held by Robert William Jenkins. Mr. Jenkins is a Shellfish Processing Plant Inspector for Petitioner. He is also a Sanitation and Safety Specialist for Petitioner. He had been certified to conduct the inspection. To assist Mr. Jenkins in performing his inspection, Respondent has prepared DEP Forms 34-001 and 34-002. The latter form is a continuation of the former form. This compilation is referred to as the "DEP Processing Plant Inspection Form." In pertinent part, it identifies the nature of any alleged deficiencies found in the inspection under a column referred to as "Item Number." It has a column referred to as "Remarks." The "Remarks" part of the form contemplates that the inspector will record his or her observations in summary fashion. There is a third column entitled "Correction Date." This column refers to dates that have been identified for the plant owner to correct deficiencies found in the inspection. Use of the forms in the conduct of inspections has been incorporated by reference in Rule 62R-7.007(3), Florida Administrative Code. To further assist Mr. Jenkins in performing his inspection, Respondent provided him with DEP Form 34-003. This form is referred to as the "DEP Shellfish Processing Plant Inspection Form" as well. Its purpose is different from that related to DEP Forms 34-001 and 34-002. DEP Form 34-003 identifies the "Area" being inspected in one column. It has another column referred to as "Item Description". In general terms this column corresponds to more discrete places or activities that are observed during the inspection. There is a column on this form which is referred to as "Code". The code relates to alleged deficiencies of two types. One type is a "Key" item deficiency. The second code refers to an "Other" item deficiency. In the event that deficiencies are found DEP Form 34-003 contemplates that the area, item description, and code be identified by checking a box in the right column related to the finding. This form is also incorporated by reference in Rule 62-7.007(3), Florida Administrative Code. Finally, in performing his inspection Mr. Jenkins used a diary to record his observations. The sequence for using the materials available to him was to first place his observations in the diary. The diary served to assist Mr. Jenkins in preparing the "Remarks" section to DEP Forms 34-001 and 34-002. Preparation of DEP Form 34-003 assisted Mr. Jenkins in identifying the "Item Number" alleged to have constituted a deficiency in preparing DEP Forms 34-001 and 34-002. The item number reflected information translated from DEP Form 34-003 in the columns for "Item Description" and "Code." The "Correction Date" column within DEP Forms 34-001 and 34.002, as prepared, was the product of a discussion between Mr. Jenkins and Respondent's management, in which the management determined the date it committed to correct the alleged deficiencies found. During the inspection Mr. Jenkins recorded on DEP Form 34-001, in the "Remarks" section, "shellstock being shucked muddy." He identified this finding as an "Item Number" 27, "Key" deficiency. Item 27 from DEP Form 34-003 is in the "Area" described as "Shellfish handling and storage." Under the "Item Description" related to DEP Form 34-003, it states, "Shellstock clean." DEP Form 34-003 further refers to this Item 27 as a "Key" deficiency. There was no determination between Mr. Jenkins and Respondent's management concerning the date upon which this alleged deficiency was to be corrected. Mr. Jenkins observed persons shucking shellstock at Respondent's plant that he described in his hearing testimony as "extremely muddy." He found that the shellstock had excessive mud on it. Mr. Jenkins believes that you cannot shuck muddy shellstock in a sanitary manner. His opinion on that subject is credited. Mr. Jenkins' observations concerning the shucking operations were in association with the normal operation of Respondent's plant. The oysters being shucked were placed in one-gallon, stainless steel buckets. From there the oysters were delivered to the skimmer room. The product was then rinsed, packed in ice, and placed in reusable, properly labeled, five- gallon containers. Notwithstanding the fact that the oysters were rinsed after being shucked, while the oysters were being shucked, the shellstock was extremely muddy and, as Mr. Jenkins established, the oysters could not be shucked in a sanitary manner under those original conditions before rinsing and packing. During his inspection Mr. Jenkins recorded in the "Remarks" section of DEP Form 34-001 that "walls and ceiling in shucking room dirty with flaking paint." By resort to DEP Form 34-003, Mr. Jenkins labeled this condition as an "Other" Item 6 deficiency. DEP Form 34-003 under the "Area" column refers to the "Plant interior." Within that form under "Item Description" it is stated "Walls, Ceilings, attached equipment: Smooth, light colored, clean, good repair". The date upon which management agreed to correct the problem as reflected in the "Correction Date" column to DEP Form 34-001 was December 14, 1996. In the "Remarks" section of DEP Form 34-001, Mr. Jenkins recorded that he had observed in his inspection that "outside shellstock cooler had no grate over floor drain." By resort to DEP Form 34-003, Mr. Jenkins described the "Area" involved in this observation as "Vectors." By using that form, he referred to the "Item Description" as "Insects, Rodents, Vermin, Other Animals: excluded, controlled." The "Code" within that form referred to this "Item Description" as a "Key" item seven (7) deficiency. As reflected in DEP Form 34-001, management committed to correct this problem on December 5, 1996. In the "Remarks" section to DEP Form 34-001, Mr. Jenkins noted that "3-bags of shellstock with 8-mile harvest area." By resort to DEP Form 34-003, the "Area" in which this alleged deficiency was found was described "Shellfish handling and storage." The "Item Description" was referred to as "Shellstock properly identified." In accordance with the "Code" in DEP Form 34-003, this was described and recorded as a "Key" item 25 deficiency. Management committed to correct this condition on December 5, 1996.1 At the conclusion of the inspection, Mr. Jenkins provided Respondent's managers with copies of the completed DEP Forms 34-001, 34-002, and 34-003. At the conclusion of the inspection, Mr. Jenkins discussed the alleged deficiencies or violations with Annie Mae Wilson and Paul Wilson. He told them that he had shown "Little Paul" each violation and asked the other Wilsons if they desired to see those violations. They responded that it was not necessary. Later Mr. Jenkins prepared, and on December 9, 1996, signed, an "Establishment Inspection Report." This written report was not provided to Respondent but would have been provided if Respondent requested a copy. In a portion of the report referred to as "Objectionable Conditions or Practices," it is stated: Louisiana shellstock being shucked was extremely muddy. 62R-7.016(1). DEP form 34-003 Item 27 Key * * * 3. Areas of the walls and ceiling in the shucking room were observed dirty and flaking paint. 62R-7.013(1c). DEP form 34-003 Item 6 Other. * * * The outside shellstock cooler had no grate over the floor drain. 62R-7.013(1f). DEP form 34-003 Item 25 Key. Three bags of shellstock were not properly identified. Tag had 8 mile for harvest area, lacking the 4-digit location code. 62R-7.014(1). DEP form 34-003 Item 25 Key. At hearing Mr. Jenkins corrected the reference to the shellstock shucking citation from 62R-7.016(1) to 62R-7.016(3). On January 6, 1997, Petitioner reinspected Respondent's plant. That inspection was conducted by Nancy L. Horton who was employed in a position comparable to that occupied by Mr. Horton. In conducting her inspection, Ms. Horton followed procedures that were similar to those employed by Mr. Jenkins in his inspection. Mr. Horton completed DEP Forms 34-001, 34-002, and 34-003 and provided copies to Respondent's management on the date the inspection was conducted. Ms. Horton was familiar with Mr. Jenkins' findings made on December 5, 1996, during his inspection and the subsequent Establishment Inspection Report which he had rendered before conducting her own inspection. In the follow-up phase of her inspection, she intended to determine if the problems discovered by Mr. Jenkins on December 5, 1996, had been corrected. Ms. Horton observed and noted on DEP Form 34-001 in the "Remarks" section that: 2 bags of shellstock w/out legal area 12 bags " " " " " All bags listed as "drybar" for harvest area. 62R-7016(1). Under the "Item Number" column related to that form Ms. Horton stated "25-K Repeated Violation." That entry on the form was in reference to findings from DEP Form 34-003 in which the "Area" was listed as "Shellfish Handling and Storage" and the "Item Description" stated "Shellstock properly identified" with the "Code" being checked as a "Key" item 25 deficiency. The completed DEP Form 34-001 indicated that this problem would be corrected on January 6, 1997. Mr. Wilson blamed this problem on the harvesters. He told Ms. Horton the shellstock harvesters could not read. Ms. Horton responded that this was a "Repeated violation." She suggested that Mr. Wilson show the harvesters how to fill the tags out correctly. She also told Mr. Wilson that once the bags were in his cooler they became his responsibility. "Drybar" is a colloquial name for an oyster bar located near St. Vincent's Island. When Ms. Horton performed her inspection, she understood the meaning of the colloquial reference. During her inspection, Ms. Horton observed and noted under the "Remarks" section to DEP Form 34-002 "Muddy shellstock being shucked. 62R-7.016(3)." Based upon the use of DEP Form 34- 003, Ms. Horton reported on DEP Form 34-002 that this was an "Item Number" 27-K. The reference to 27-K refers to information from DEP Form 34-003 in the "Area" for "Shellfish handling and storage." The "Item Description" was "Shellstock clean" and the "Code" was a "Key" item 27 deficiency. Again this was referred to as a "Repeated violation." A correction date under the column for establishing that date was not established. In her testimony related to her findings concerning the shellstock, she identified that the shellstock came from Texas. She said that she found a lot of mud had been splattered "everywhere" in the area of the shucking operation. She identified that a container of shucked product was sitting where she was inspecting. Specifically, she identified that mud that was being splashed covered the walls and the employees who where shucking the shellstock. There was also mud on the shellstock that had not been shucked. In relation to the problem with muddy shellstock being shucked, Mr. Wilson told Ms. Horton that he did not know how to correct this violation. Ms. Horton responded to Mr. Wilson that he might consider washing the oysters through his oyster washer before shucking them. Based upon her observations, Ms. Horton noted in the "Remarks" section to DEP Form 34-002 that "Outside cooler w/out floor cover 62R-7.015(5)." On that same form she noted that the "Item Number" was "7-Key." That reference was taken from the completion of DEP Form 34-003 in the "Area" described as "Vectors," the "Item Description" related to "Insects, Rodents, Vermin, Other Animals: Excluded, controlled." The "Code" on that form was for a "Key" Item 7 deficiency. This item was identified in the completed DEP Form 34-002 as a "Repeated violation." In association with this item, Mr. Wilson went into the shucking room and came out with a grate and covered the drain hole. Ms. Horton pointed out that the cover did not fit the drain hole and would get knocked off. Mr. Wilson told her that all covers get knocked off. Ms. Horton told Mr. Wilson that the cover was bigger than the drain hole and did not fit tight. Nonetheless, the completed DEP Form 34-002 indicates under the section for "Correction Date" that the problem was "corrected." In her inspection, Ms. Horton observed and noted in the "Remarks" section to DEP Form 34-002 that "walls & ceiling in shucking room dirty. 62R-7.013(1)(c)." On that form under "Item Number" she identified this as "6-0." That information was taken from the preparation of DEP Form 34-003 under "Area" as "Plant Interior." From DEP Form 34-003 the "Item Description" was "Walls, Ceilings, Attached Equipment; smooth, light colored, clean, good repair." The "Code" from DEP Form 34-003 was "Other" Item 6 deficiency. The "Correction Date" that was established on DEP Form 34-002 was January 9, 1997. This item was also identified on DEP Form 34-002 as a "Repeat violation." In response to the findings concerning the walls and ceiling, Mr. Wilson indicated that he would clean the walls and ceiling in the shucking room. In an Establishment Inspection Report rendered on January 8, 1997, Ms. Horton recorded "Objectionable Conditions or Practices," to the effect that: Ten bags of local shellstock were not properly identified. Dry Bar was listed as the legal harvest area. Repeated violation 62R-7.016(1) DEP 34-003 Item # 25-Key. 62R-7.010(3-c) Texas shellstock being shucked was extremely muddy. Repeated violation 62R-7.016(3) DEP 34-003 Item # 27-Key. The walls and ceiling in the shucking room was [sic] dirty with dried mud from previous operations. 62R-7.013(1-c) DEP 34-003 Item #6-Other. Repeated violation * * * 12. One floor drain in the shellstock cooler was not covered. 62R-7.015(e) DEP 34-003 Item #7-Key Repeated violation This report was not provided to Respondent. It was available upon request from Respondent. The hearing record does not reveal that a request was made, nor did the record reveal a request from Respondent to obtain Mr. Jenkins Establishment Inspection Report. Following Ms. Horton's inspection, Petitioner charged Respondent with license violations through a complaint letter dated January 13, 1997. In pertinent part that complaint letter stated: Inspection of your facility, Wilson & Son Seafood Inc., Fl 179-SP, was conducted on January 6, 1997. Observations revealed eight "key" item deficiencies and four "other" item deficiencies. Repeat "key" observations included ten bags of local shellstock not properly identified (62R-7.010 (3)c and 62R- 7.016(1)), Texas shellstock being shucked was extremely muddy (62R-7.016(3)), and one floor drain in the shellstock cooler was not covered (62R-7.015(5)c. In addition the "other" item deficiency of walls and ceiling in the shucking room dirty with dried mud from previous operations (62R-7.033(1)c), was also a repeated violation noted during the previous inspection of December 5, 1996. Due to the repeat nature of these violations, this is notification of the intent to suspend your firm's shellfish certification license for a period of seven working days beginning on February 15, 1997 at 8:00 AM EST. . . .
Recommendation Upon consideration of the fact found and the conclusions of law reached, it is, RECOMMENDED that a final order be entered which dismisses the complaint letter. DONE AND ENTERED this 2nd day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997.
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At all times pertinent to the issues herein, the Department of Environmental Protection was the state agency responsible for the regulation of certain activities conducted on and in the coastal waters of this state. Respondent was a commercial crab fisherman operating out of Tarpon Springs, Florida. In the operation of his business, Respondent, James Ikey House, places and maintains several thousand wooden crab traps in the waters off western- central Florida for the purpose of catching stone crabs. He, or someone in his employ, builds his traps on his premises. Late in the afternoon on September 2, 1993, Marine Patrol Officer Umberto Navarro, while on duty as a land patrol from Tarpon Springs to St. Petersburg Beach, on Roosevelt Boulevard in Tarpon Springs, saw a stack of greenish colored crab traps on a lot beside the street. The greenish color of the traps he saw that day made him wonder what they had been dipped into for preservation. Navarro's family has been in the commercial fishing business for years and some are competitors of the Respondent in the Tarpon Springs area. He contends this has nothing whatever to do with his investigation, however. He has worked with fishermen all his life and before becoming a Marine Patrol officer, he built thousands of crab traps similar to those he saw that day and dipped them in motor oil as a preservative. Navarro saw a young boy on Respondent's premises dipping bundles of slats into a vat containing a dark liquid. The slats were 2 to 3 feet long and were tied with string, and based on his experience in the business, and the fact that a lot of the prepared and stacked traps were the same color as the wood being dipped, Navarro concluded that they were going to be made into crab traps. He asked the lad to whom the traps belonged and subsequently found out they were owned by the Respondent. When Respondent came to the site where Navarro was talking to the boy and the boy's father, Respondent's grandson and son respectively, Navarro, after identifying himself as a Marine Patrol officer, asked Respondent if the traps were his. In response, Respondent asked, "What's it to you?" Navarro then asked Respondent what the substance being used was and explained why he asked. He advised Respondent that it was unlawful to dip crab traps, or the material to be made into traps, in any substance made from petroleum. Respondent asked to see where that was in the law and Navarro showed him the statutory provision included in a book of relevant laws and rules carried by all Marine Patrol officers. Even when this was shown to Respondent, he remained hostile and uncooperative, though he ultimately stated he was using mineral oil and copper as a dip. Only when Navarro said he would take a sample of the substance did Respondent admit the dip contained a petroleum product, and he said he guessed that he was in violation of the law along with the other million people who dipped traps. Officer Navarro went over to where the dip substance was being used and asked if Respondent had any cans from which it had come around for him to look at. Respondent refused to show Navarro any cans, so as a result, even though he did not have a search warrant to do so, Navarro started to take a sample for further identification. With that, Respondent told Navarro to get off his property. Nonetheless, Officer Navarro took two samples of the substance using a piece of what appeared to him to be abandoned water hose he saw lying on the ground. One was taken from the vat in which the slats were being dipped, and the other was taken from a 55 gallon drum of the substance nearby. He did so because he saw what he considered to be a crime being committed in front of him and he wanted to preserve a sample of the substance being used. Navarro gave Respondent a receipt for the samples and the hose. He did not take any of the traps. He also took photographs of the scene including the dip process, the stacked traps, and the surrounding locale. Respondent objected to the pictures being taken. The substance was subsequently released to Mr. Rossbach of the Department's Emergency Response office who had the samples analyzed by an independent accredited laboratory. In determining what tests to run on the substance, Mr. Rossbach and the laboratory official considered its appearance and its odor, and based on that, the laboratory personnel suggested what tests should be done. Mr. Rossbach got prices for those tests and, before approving their completion, took the samples back to his office, secured a purchase order for the tests, and then took the samples back to the lab for analysis. The report of the tests done on these samples indicated the substance contained a significant amount of copper and mineral spirits, a petroleum product. The total cost of the investigation into this incident by the Department, including the laboratory analysis which was priced at $855.00, came to $1156.26. This figure also includes the mileage for the patrol car, the cost of sample jars, a proration of the salaries of the Marine Patrol and Department personnel involved, photography costs, and clerical expenses. In addition, the Department proposes to assess a fine of $500.00. In this regard, the Department has authority to assess a fine of up to $10,000 per day for pollution violations proscribed by Chapter 376, Florida Statutes. In 1990, the Florida Legislature revised Chapter 376, Florida Statutes, to provide that after 1990, no traps may be impregnated with a petroleum based solution. After 1995, no traps which have been impregnated with a petroleum based solution may be used in the waters of this State. The statute was drafted this way to allow those fishermen who had traps already impregnated at the time the statute was passed to use them until they wore out or for a reasonable time prior to the effective date of the prohibition against their use. Captain House categorically denies having dipped any of the traps Navarro saw stacked, or any of the traps he has used since 1989, in mineral spirits though before the law was changed he used to do so. He has been a commercial fisherman for 50 years, and while he formerly dipped his traps to preserve the wood and keep worms out, he no longer does so because of the cost of the chemicals and the labor to do it. He now uses commercially treated lumber to fabricate the traps which, though more expensive to buy, is cheaper for his purposes than the cost of regular wood plus the treatment process. The vat which Mr. Navarro saw contains a green liquid which is made up of mineral spirits and a copper wood preservative. Respondent claims he uses the wood which is dipped into the vat for a variety of purposes and, on occasion, gives it to others. He also lets others use his vat to dip their wood. The dipping is done to protect the wood against rot and he uses it in boat building and in the construction and maintenance of two houses he owns in Tarpon Springs. He claims not to have used it for crab traps, however. Respondent claims Officer Navarro's inquiry into his operation is the result of commercial competition. There is no evidence of this however. Respondent also claims that from his inquiry of a Ms. Moegling of the same laboratory which conducted the analysis for the Department, he was advised that it would take between 5 and 7 days to test for suspected petroleum products, and that the test would cost $150.00. The report of analysis done by the lab reflects a comprehensive testing for numerous chemicals. Respondent took a sample of his dip to another laboratory, Personal Services Industries, Inc., in Clearwater on May 18, 1994, where he paid $115.00 for an analysis of the substance. There was no evidence as to what the result of this analysis was, however, or what tests were completed. In light of the fact that the statute and rule prohibit dipping in petroleum based products, a less comprehensive test than that run here would have sufficed. Though there is no direct evidence of the cost of such a test, other than theestimate by PSI, Inc. of $115.00, and the cite of a fee of $150.00 to Respondent by a representative of V.O.C. Analytical Laboratories, Inc., it would seem reasonable that such a test could be done for less than $855.00. Using the cited alternative costs as a guide, the sum of $150.00 appears reasonable. Respondent also presented several receipts for the purchase of lumber which he claims was pressure treated lumber to be used for the construction of his crab traps. Again, the documents do not indicate that the lumber is pressure treated, and as with the results of the independent analysis, the only evidence of Respondent's claims is his own testimony. Respondent also introduced three affidavits from individuals who claim to be aware of Respondent's activity from witnessing his conduct for anywhere from three to twelve years. Each of these individuals claims to have seen Respondent build many crab traps, but none has ever seen him dip the traps in or spray them with chemicals. The statements are hearsay and the similarity of the language of these affidavits leads to the conclusion they were prepared in advance by Respondent or his representative and submitted to the affiant for signature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioner pay a fine of $500.00 and reimbursement of expenses in the amount of $451.26. RECOMMENDED this 23rd day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted but not relevant to any issue of fact. Accepted and incorporated herein. - 11. Accepted and incorporated herein. Accepted and incorporated herein. & 14. Accepted and incorporated herein. Accepted and incorporated herein. - 20. Accepted and incorporated herein. Accepted. Not proven. & 24. Accepted. FOR THE RESPONDENT: Respondent's post hearing submittal did not constitute Proposed Findings of Fact, but more an analysis of and argument on the evidence. COPIES FURNISHED: Maureen M. Malvern, Esquire Department of Environmental Protection 2600 Blair Stone Road, MS 35 Tallahassee, Florida 32308 Brad D. Hicks Qualified Personal Representative percent House 514 Island Avenue Tarpon Springs, Florida 34689 James Ikey house 514 Island Avenue Tarpon Springs, Florida 34689 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact During the applicable time period, the Buccaneer held a current license to operate as a public food service establishment having been issued license number 46-01562R by the Division. The establishment is located at 2247 Fowler Street, Fort Myers, Florida. The current license is in effect until December 1, 1990. On August 16, 1989, the premises of the restaurant were inspected by Robin Terzagian, an Environmental Health Specialist. Ms. Terzagian is employed by the Lee County Health Unit, which is part of the Department of Health and Rehabilitative Services. During the inspection, Ms. Terzagian issued a written warning to the Buccaneer informing the establishment of various violations which needed to be corrected by August 30, 1989. The two major violations involved the preservation of food and food protection. On August 30, 1989, Ms. Terzagian returned to the premises to conduct a second inspection which is referred to as a "call-back" inspection. At this time, the Buccaneer had responded to a number of the violations previously noted by the inspector. The time period for compliance for the remaining violations was extended until September 8, 1989. On September 8, 1989, the partially torn gasket on the doors of the sandwich cooler had been repaired with a silicone rubber covering as opposed to "replaced", as instructed by Ms. Terzagian in her two prior inspection reports. The leaking faucet had not been repaired or replaced, as previously instructed, and the local exhaust ventilation had not yet been installed. However, the hole in the wall had been patched so this violation no longer existed. At the close of this second "call-back" inspection, Ms. Terzagian issued a Notice of Intent to File Administrative Charges for failing to correct three of the alleged violations pursuant to her instructions. The violations which were previously marked as "minor" violations were reclassified as "major" violations. Torn Gasket on the Sandwich Cooler Once the partially torn gasket on the sandwich cooler was repaired by Buccaneer, the sandwich cooler maintained the proper temperature required under the sanitary codes. Originally, the repair was made as a temporary measure by the establishment until a replacement gasket could be located by a local appliance company. Due to the age of the cooler, a replacement gasket was not located. The repair is the only measure the establishment can take to correct the problem and keep the same piece of equipment until such time as a new gasket is found. The repaired gasket has continued to successfully maintain the proper temperature in the cooler. Subsequent inspections by different inspectors have determined that the repair has not interfered with the cleaning of the cooler in the area of the repair, as originally hypothesized by Ms. Terzagian when she insisted on total replacement of the gasket. Leaking Faucet L.G. Rhodes Plumbing, Inc. was contacted to locate a replacement faucet for the sink prior to the September 8, 1989 inspection. During this inspection, the faucet had not been repaired. However, the manager of the establishment advised the inspector that a faucet was "on order" with Rhodes Plumbing. After several weeks of unsuccessful searching to find a replacement, the plumber repaired the faucet. This also occurred after September 8, 1989. Before and during the time period the Buccaneer sought to replace or repair the faucet, the restaurant changed its dishwashing procedure. The Buccaneer management argued that the revised procedure mitigated the problems the lack of maintenance of the faucet may have caused. The leaking faucet caused bacteria to accumulate around the leak. The repaired faucet has passed subsequent inspections made by inspectors who have replaced Ms. Terzagian in the review of this establishment prior to final hearing. Hole in Wall The hole in the wall in the back room was not indicated on the August 30, 1989 "call-back" inspection. The violation had been cured by the Buccaneer after the warning was issued to the establishment on August 16, 1989. The allegation in the Notice to Show Cause that the violation was in existence on September 8, 1989 was in error. Local Exhaust Over All Cooking Units On May 26, 1989, Ken Abler, an inspector with the Fire Prevention Bureau of the Fort Myers Fire Department, sent a follow up letter to the manager of the Buccaneer advising the food service establishment that cooking, other than by microwave, was not permitted on the premises until such time as a proper hood system with automatic fire suppression is installed. On August 16, 1989, Ms. Terzagian's inspection revealed that the Buccaneer was still cooking food on small, "plugged in" electric griddles without a fire suppression or hood system installed in the establishment. The practice was ongoing, and the griddles were still in use during the call-back report of August 30, 1989, the call-back inspection of September 8, 1989, and the reinspection report of October 12, 1989. The griddles were used to fry eggs and hamburger patties, and to heat sandwiches. In spite of the representations made by the Environmental Health Specialist who inspected the premises on February 28, 1990, that all violations had been corrected on these premises, the automatic hood suppression system which was installed after October 12, 1989, had not had a final inspection and trip test as of March 28, 1990. No reliable additional information was provided by Buccaneer to demonstrate that the system has since been approved. A search of the Fort Myers Fire Department records through May 23, 1990 did not reveal a final inspection approval by the Fort Myers Fire Department had occurred prior to final hearing.
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
Findings Of Fact The parties stipulated and agreed to the operative facts in their Pre- Hearing Stipulation and those agreed-on facts are adopted herein as Findings of Fact 1-26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute. Respondent denied Petitioner's requested permit in this case because the status of his leases was currently in question for possible failure to maintain the allegedly required level of cultivation. Respondent applied the provisions of Rule 46-27.0092 F.A.C. (1988) to Petitioner's request for a permit, which rule in fact was not adopted until October 1, 1986, and the pertinent provisions of which did not exist in fact until the rule was amended on July 7, 1988. Rule 46-27.0092 F.A.C. (1988) cites as its specific authority four provisions of Florida statute which did not exist when Petitioner's oyster leases were acquired by contract with the State of Florida. Rule 46-27.0092 F.A.C. (1988) implements laws which did not exist at the time Petitioner acquired his contract interest in these leases. The Department denied Petitioner's request for a permit in reliance on Section 370.06(4), Fla. Stat. (1987), a statute which did not exist at the time Petitioner acquired his interest in these oyster leases by contract. A report by Dr. Charles Rockwood and others commissioned by the Department of Natural Resources of F.S.U. found that "The local contention that dredging [for oysters in Apalachicola Bay] would be ecologically harmful to the Apalachicola oyster population given the relatively soft and muddy bottom, it would cause excess siltation and the oysters would smother and die, is a conclusion not supported by ecological information available to the project researchers." The Marine Fisheries Commission 15 years later arrived at the same conclusion stated in #7. "We do not believe there would be any environmental problem associated with the use of dredges." In Louisiana dredges are allowed to a maximum of 7 Ft. and up to 6 per vessel. Ron Ducas from Louisiana, one of the top shellfish biologist in the southeast, said that the use of dredges does not cause any environmental damage or [un]necessary [sic] damage to the oyster. The findings noted in #7, 8 and 9 were submitted by Mr. Nelson of the DNR and on behalf of Respondent to the governor and cabinet during the Marine Fisheries Commission agenda of the cabinet meeting on June 14, 1988. It was noted in a memorandum from the Office of the Governor to Sally Monroe from Billy Buzzett regarding Apalachicola Bay Oyster Dredging dated July 13, 1988, that the owner of lease numbers 525 and 609 appeared to be in compliance with the requirements of his leases and they were validly held leases from the State of Florida. Most of the currently leased [Apalachicola) bay bottom is not productive because of lack of oyster habitat. Annually, Apalachicola Bay is filled with oyster spawn (spat). The spat would naturally attach to oyster beds of oyster shell and culch if such beds were created where the bottom is now only mud. The owners of leases have the right to create oyster habitat on their leases and to hardest the oysters that may grow thereon. The cost of depositing oyster shell and culch materials on the mud bottom in adequate quantities to create a suitable habitat for spat is about $5,000.00 per acre. In recent years, approximately 90 percent of the oysters processed in Franklin County by shucking and canning have come from outside Florida, and only about 10 percent from Florida. The supply of oysters from outside of Florida is unstable largely due to water quality degradation in other states, as well as the loss of oyster habitat to development. The use of dredges could allow the holders of leases to harvest oysters from the leasehold more quickly and less expensively. The savings in money could then be used to create more oyster habitat. Except for potential illegal use of dredges [on public bars], misuse of dredges on lease holds (scooping of all oyster bar materials, without redeposit of the shell and culch), and fracture of thin shelled oysters on lease holds, there is no evidence that oyster dredges will cause biological or water quality problems in Apalachicola Bay. Those permitted to use dredges on private leases would have the economic incentive to use the dredges in a manner that does not destroy their financial investment in the leasehold. The foregoing facts represented by #l2 through 20, were all positions advanced by Respondent and the Florida Marine Fisheries Commission to defend the validity of Rule 46-27.0092 and were conclusively found by the State of Florida, Division of Administrative Hearings in Franklin County, Seafood Workers Association, Royce Watson and Leroy Hall, Petitioners v. Department of Natural Resources, and Florida Marine Fisheries Commission, Respondents, in the State of Florida, Division of Administrative Hearings, Case NO. 87-4438R, 10 FALR 2190 (March 31, 1988) An oyster lease is, among other things, an interest in land. Petitioner is the owner of Oyster Lease Nos. 525 and 609 which were issued pursuant to Chapter 370.16(16)(b), Fla. Stat. (1953). The terms of the leases in question are perpetual and convey interest in parcels located in Apalachicola Bay in Franklin County, Florida. Petitioner applied for a permit to use implements or appliances on his leases on June 30, 1988. Petitioner issued its final order of denial on September 28, 1988. Respondent has not commenced any proceeding to revoke Petitioner's oyster leases. Additionally, the parties stipulated to the facts set forth as Findings of Fact 27-29 in their Stipulation filed February 9, 1989. Petitioner is the lessee of Oyster Leases Nos. 525 and 609, which constitute leased bedding ground. Petitioner has agreed to furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as he may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law. The attached form of bond [attached to the Stipulation] is acceptable to and approved by the parties for the above-stated purpose. The only conditions precedent to the issuance of a permit to a lessee to use on leased bedding ground any implements or appliances as he may desire are: 1) that the applicant for the permit be a lessee of an oyster lease, and 2) that he furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as the lessee may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of Olan B. Ward for a special activity license to use mechanical harvesting implements on Oyster Leases No. 525 and 609. DONE and ENTERED this 20th day of April, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Frank J. Santry Attorney at Law Granger, Santry, Mitchell & Heath, P.A. Post Office Box 14129 (32317) Tallahassee, FL 32308 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
