The Issue The issue presented in DOAH Case No. 93-3290RX is whether Rule 46-3.028, Florida Administrative Code, is an invalid exercise of delegated legislative authority, and the issue presented in DOAH Case No. 93-5549RP is whether the proposed amendment to that Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Menhaden are a species of herring. They are tightly-schooling fish which travel at the water surface. Menhaden are generally harvested as bait or for industrial products. Menhaden are planktivorous, or plankton-eating, fish which thrive in highly eutrophic aquatic environments. Portions of the inside waters of Escambia and Santa Rosa Counties become highly eutrophic during the summer months. Each summer menhaden congregate in the highly eutrophic areas of the inside waters of Escambia and Santa Rosa Counties, resulting in overcrowding and consequent suffocation of large numbers of fish. These summer fish kill in certain regions of Escambia and Santa Rosa Counties are considered a nuisance and a public health problem. To alleviate the problem, the Department of Environmental Protection has issued Special Activities Licenses to permit purse seining of menhaden in these regions during the summer months. Petitioner Blanchard is a commercial fisherman and owner of a fish net business. He has fished in the local waters of Escambia and Santa Rosa Counties for many years. In 1978, the Legislature enacted Chapter 78-501 and Chapter 78-502, Laws of Florida, which prohibited fishing in the salt-waters of Escambia or Santa Rosa Counties with a net having a mesh of less than 2 5/8 inches stretched. After the effective date of those special laws, Petitioner Blanchard continued his fishing operations by using a purse seine net with a mesh of 2 5/8 inches. After the creation of the Marine Fisheries Commission in 1983, the Commission held hearings in various locations in the State of Florida where citizens could come and discuss local laws which they wanted changed or not. Such generic local public hearings were held in Escambia County and in Santa Rosa County in August of 1987 and in November of 1989. No evidence was offered that changes to Chapters 78-501 and 78-502 were discussed at those meetings or that any notice that such changes would be discussed was published. During 1991, the Commission engaged in rulemaking to promulgate a statewide rule regulating net sizes and meshes and types of fishing gear. During the final public hearing in August of 1992 held in St. Augustine, Florida, the Commission changed its proposed statewide gear rule which had proposed to ban all seine nets, determining instead that it would prohibit purse seining but would allow haul seining and beach seining. The statewide gear rule, which went into effect, prohibited the use of purse seine nets in the waters of Escambia and Santa Rosa Counties. No evidence was offered as to the notices issued or the steps engaged in during that rulemaking process. At the time that the Commission passed its statewide gear rule prohibiting the use of purse seine nets in Escambia and Santa Rosa Counties, it was aware that it was repealing Chapters 78-501 and 78-502, Laws of Florida, which had become rules of the Department of Natural Resources pursuant to Chapters 83-134 and 84-121, Laws of Florida. At the time that it adopted the statewide rule, however, the Commission believed that purse seine netting was already banned in the waters of Escambia and Santa Rosa Counties and believed, therefore, that it was making no change to the local fishing regulations in those counties. At the time, the Commission did not know that a small scale menhaden purse seining fishery existed in the waters of Escambia and Santa Rosa Counties. The Commission's reading of the unambiguous language of Chapters 78- 501 and 78-502 was clearly erroneous. The Commission had not intended to ban an existing menhaden purse seine fishery in those waters. Petitioner Blanchard filed a lawsuit in the Circuit Court in Escambia County over the repeal of the allowance of purse seine nets with a minimum mesh of 2 5/8 inches and the ban on purse seine nets in those local waters. That litigation was dismissed due to his failure to exhaust administrative remedies. Petitioner Blanchard then filed the challenge to the existing rule which is the subject of this proceeding. In an attempt to resolve the issues raised in Petitioner Blanchard's rule challenge, the Commission proposed to amend Section (3) of Rule 46-3.028, Florida Administrative Code, to correct its unintended ban of an ongoing menhaden purse seine fishery by permitting instead a limited harvest of menhaden using purse seines in the inside waters of Escambia and Santa Rosa Counties. Under the proposed rule, which is also the subject of this proceeding, menhaden may be harvested in specified areas of the inside waters of Escambia and Santa Rosa Counties landward of the Colregs Demarcation Line with the use of a purse seine net only from a vessel with a documented length of less than 40 feet and with a purse seine net no longer than 400 yards. The proposed rule further provides that no harvesting of menhaden with a purse seine shall occur during any weekend or on any state holiday, limits any incidental bycatch to 2 percent by weight of all fish in possession of the harvester, and requires that any fish for which the Commission has established a bag limit shall be released free, alive, and unharmed. The proposed rule also includes a two-stage quota and an established fishing season for the commercial harvest of menhaden in the inside waters of Escambia and Santa Rosa Counties which opens on June 1st of each year and closes on May 31st of the following year unless it is closed earlier in accordance with quota limits. The summer quota allows a commercial harvest of menhaden in those Counties' waters of 1,000,000 pounds during the period from June 1st to October 31st of each year. If that quantity is not netted, the season is closed on November 1st by the Secretary of the Department of Environmental Protection and not reopened until the following June 1st. The winter season offers a quota of an additional 2,000,000 pounds. If the total commercial harvest of menhaden in those counties reaches 3,000,000 pounds (the 1,000,000 pounds during the summer plus the 2,000,000 pounds during the winter) before May 31st, the menhaden season for the inside waters of Escambia and Santa Rosa Counties shall be closed on the date that the harvest is projected to reach that amount and shall not reopen until the following June 1st. The Commission began the rulemaking procedures for the proposed amendment to Section (3) of Rule 46-3.028, Florida Administrative Code. Petitioner Florida Conservation Association (hereinafter "FCA") filed its challenge to the proposed rule. In the proposed rule, the Commission makes a specific finding that the harvest of menhaden through the use of purse seine nets in the inside waters of Escambia and Santa Rosa Counties during the summer months serves the public purpose of avoiding the nuisance and public health problems associated with the menhaden die-offs. The Commission also specifically finds that harvesting menhaden with purse seines will not adversely affect the long-term abundance of menhaden in the area so long as appropriate restrictions on seasonal and total annual harvest are adopted. Menhaden bring a low economic return in the marketplace. During the summer months when demand is low, commercial fishermen are paid approximately $.05 per pound for menhaden. The price increases slightly during the winter months when there is a demand for menhaden, for example, in Louisiana where it is used as bait for crawfish traps and crab traps. That demand is primarily served by large commercial operations using large vessels and long nets to harvest menhaden in the Gulf of Mexico, not in the inside waters of Escambia and Santa Rosa Counties. Similarly, the fish reduction industry (the processing of fish such as menhaden to make fish meal and to extract fish oils for industrial purposes) is primarily served by large commercial operations harvesting menhaden in the Gulf of Mexico. There is a Marine Fisheries Information System maintained by the Florida Marine Research Institute of the Department of Environmental Protection. Licensed wholesale seafood dealers fill out trip tickets reporting the type of fish, amount of fish caught, and the county where the fish are landed, whenever those dealers purchase fish from licensed fishermen. The Department receives approximately 30,000 trip tickets per month from its approximately 700 licensed wholesale seafood dealers in the State of Florida. The data from those trip tickets is entered into a computer, and the resulting statistics are relied upon by the State of Florida and by the federal government to make fishery management decisions. It can take as long as six months for the data to become part of the computer data base and as long as two years for all of the data to be edited and considered to be in final form. Because of that time lag, the Florida Marine Research Institute has implemented procedures for fish which are subject to quotas. For those fish, employees of the Institute do not wait to receive trip tickets from the dealers; rather, they commence telephone contact with the dealers who historically deal in that type of fish, maintaining telephone contact on a daily basis if necessary when it is projected that the harvest quota may be reached. Although menhaden are both a bait fish and an industrial fish, they are required to be coded on the trip tickets specifically as menhaden and not under the general category of industrial fish. Reporting on the trip tickets the name of the county where the fish were landed is mandatory although reporting the area fished, i.e., where the fish are actually caught, is optional. Although there is some evidence that menhaden caught in Tampa Bay were sometimes landed there and then transported by truck along the interstate highway system to fish houses and processing plants in Alabama, Louisiana, and Mississippi, there is no evidence that menhaden caught in the inside waters of Escambia and Santa Rosa Counties have been transported by boat and landed outside of those counties. Further, there is no likelihood that such will be done under the limited boat and net size required under the proposed rule. There is no evidence that it is economically feasible for such small boats to travel through Escambia Bay and into the Gulf of Mexico to other counties or states to avoid reporting their menhaden harvest. Although it would be better for the Department's trip tickets to report the area where the fish were caught, it is likely that menhaden harvested by boats under 40 feet in the inside waters of Escambia and Santa Rosa Counties will be landed in those counties and, therefore, captured by the Department's information gathering system, as it is currently operated. The menhaden team of the National Marine Fisheries Service, in cooperation with the Gulf States Marine Fisheries Commission, has calculated the maximum sustainable yield for Gulf of Mexico menhaden at 1.75 billion pounds. The maximum sustainable yield is the amount of fish that can be harvested annually without depleting the population of that fish. The 1993 menhaden harvest from the entire Gulf of Mexico was 1.19 billion pounds. The National Marine Fisheries Service performs annual stock assessments of Gulf menhaden. Its current assessment is that menhaden are not being overfished in the Gulf of Mexico. The federal government considers Gulf of Mexico menhaden as a single stock for management purposes. There are no indications that there is a biological problem in the Gulf-wide menhaden fishery. The Gulf stock of menhaden has been increasing in numbers since 1960. The proposed rule provides for a managed fishery for menhaden in Escambia and Santa Rosa Counties by allowing a limited harvest. The 1,000,000 pound quota for the summer portion of the fishing season is consistent with the volume of menhaden harvested in the inside waters of those Counties at the behest of those local governments and pursuant to the Department's Special Activities Licenses issued to reduce the fish die-offs in those areas, plus the volume of dead menhaden which the local governments haul to the landfill yearly. The overall 3,000,000 pound annual harvest quota was determined by calculating the peak landings for that area which had been approximately 2.1 to 2.2 million pounds yearly, plus the approximate 640,000 pounds of dead menhaden hauled away. Therefore, the summer quota of 1,000,000 pounds, plus the winter quota of 2,000,000 pounds, comprising the annual quota of 3,000,000 pounds, is a reasonable sustainable harvest. The proposed rule will serve a public purpose by helping to alleviate the summer menhaden kills in the upper bayous in Escambia and Santa Rosa Counties and will not adversely affect the menhaden population for the Gulf of Mexico. Until 1988, there was an active menhaden fishery in Tampa Bay. Suddenly, there was a dramatic decline or collapse of the Tampa Bay menhaden fishery. There still exists a lively debate on whether the disappearance of menhaden from Tampa Bay was caused by over-fishing and/or the 1988 massive acid spill into the Alafia River by the Gardinier Corporation and/or improved water quality in Tampa Bay and/or whether the disappearance of menhaden in Tampa Bay was caused by a shift in the range of where menhaden are found. There are dissimilarities between Tampa Bay and Escambia Bay. Tampa Bay was on the edge of the range for menhaden, while Escambia Bay is in the middle of the range of the menhaden population. Spotter planes were used in Tampa Bay to locate the schools of menhaden, but spotter planes have not been used to locate menhaden in Escambia Bay. Moreover, there were no regulations in place for the menhaden fishery in Tampa Bay. The proposed rule would limit and control the menhaden harvest in Escambia Bay at a time when the population is plentiful and a decline is not expected. The proposed rule with its two-phase quota has been developed by the Commission in a conscious attempt to avoid what happened in Tampa Bay. The quota prevents the dramatic increase in menhaden harvests which occurred in Tampa Bay and provides that if the summer quota is not met, which would signal a decline in the population, the fishery is automatically closed. Although menhaden have been harvested by large "motherships" in the Gulf of Mexico, mothership operations have not been conducted in Escambia Bay or the other waters in Escambia and Santa Rosa Counties. Even with mothership operations, fish are removed from the nets and loaded directly onto the mothership. They are not caught by small boats, loaded onto those small boats, then off loaded from the small boats onto the mothership. Motherships would also be prohibited in those waters since the proposed rule limits the size of vessels to under 40 feet. The Commission does not have a mandate to ban commercial fishing in the State of Florida. Rather, its mandate is to allow reasonable means and quantities of harvest, which the proposed rule does but which the total ban under the existing regulation does not. The proposed rule also allows for a reasonable management of resources, while the existing rule does not. The proposed rule is based upon the best information available to the Commission at this time. On the other hand, the ban contained in the existing rule was enacted in the absence of data showing the need for a ban. Prior to passage of the existing ban, no studies were done, no data was gathered, and there was no finding as to any problem with the menhaden fishery in the waters of Escambia and Santa Rosa Counties.
Findings Of Fact The parties stipulated to the following facts: Petitioner is an employee of the Boromei-Mirabella Seafood Company, a licensed fish dealer located in Tampa, Florida. The scope of Petitioner's employment included the vehicular transport of fish for sale or purchase. While engaged in his employment, Petitioner was apprehended and arrested by officers of the Commission, and charged with violation of Rules 39-10.02(4) and 39- 10.02(5), Florida Administrative Code. Petitioner's arrest occurred in Highlands County, Florida, on or about December 11, 1980. Petitioner, for purposes of this proceeding, admits to the factual behavior alleged in the arrest citation issued by Respondent's offices. The rules challenged in this proceeding were promulgated by Respondent in accordance with the procedures set forth in Chapter 120, Florida Statutes, also known as the Administrative Procedure Act. The challenged rules became effective on August 11, 1979. Both rules cite Article IV, Section 9, of the Florida Constitution and Section 372.021, Florida Statutes, as "specific authority" for promulgation of the rules. In addition, Section 372.65, Florida Statutes, is listed in the Florida Administrative Code, as the "law implemented" by the two challenged rules.
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 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 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 fishers 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 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, one for an individual and one for a vessel. 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 800 yards of shallow-water gill nets, 4600 yards of deepwater gill nets, two trawls, and 600 yards of trammel nets. After checking a data base maintained by the Department of Environmental Protection, Respondent found only one of Petitioner's two listed saltwater-product licenses. Respondent thus processed Petitioner's application as though he had only one license. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 8 nets" and set an appointment for him to turn in the nets on September 6, 1995. On September 6, 1995, Petitioner appeared at the appointed site with nets to sell to the State of Florida. He delivered 4800 yards of seine nets, for which he received a voucher for $27,998.40. Prior to paying the voucher, Respondent 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 dishonored Petitioner's voucher, as well as the vouchers held by numerous other fishers, 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 fishers 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 951 fishers who filed applications. This was a large majority of the 1104 fishers who would eventually sell their nets to the State under the Net Buy-Back Program. 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 only about five percent 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 of $1000 per net. Applications contained few seine nets because commercial fishers initially resisted selling their best nets to the State of Florida. The Net Buy-Back Program provided for payment of only $3500 per seine net, even though many seine nets were worth $10,000. And commercial fishers were optimistic at first that their legal challenges to the constitutional amendment would succeed. 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 be $1000. Respondent began receiving nets on August 3, 1995. Through the first three weeks of August, Respondent purchased seine nets in roughly the same five-percent mix that it had used in calculating the potential encumbrances on the Account. After this point, however, 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 would pay a fishers entitled to sell eight 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 3.5 times greater than the figures that Respondent had used in calculating the potential encumbrance on the Account. From the fishers's 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, less sanguine about their litigation prospects (as the fishers suggest) and more inventive in recasting old gill nets as seine nets (as Respondent suggests), began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Eventually, the cumulative effect of this trend raised the total mix of seines purchased from five percent, during the first three weeks, to sixty percent. 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 further payments on issued vouchers and applied new criteria to persons holding unpaid vouchers, as well as to applicants who had not yet received vouchers. This action stopped payment on all vouchers issued from around August 28 through September 6. At the time that it stopped payment on outstanding vouchers, Respondent had approved the purchase of nets from about 750 fishers. About 450 of these applicants received their money prior to the suspension of payments, leaving about 300 applicants, including Petitioner, holding worthless vouchers. However, a large number of the 450 applicants who were actually paid for their nets prior to September 6 sold a relatively large percentage of gill nets rather than seine 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. The 300 fishers holding dishonored vouchers filed a class action suit. Petitioner's voucher for his first eight nets was covered in this legal action and is not the subject of this case. Petitioner received slightly more than $10,000 on his claim for about $28,000. In the meantime, Respondent discovered that Petitioner in fact held two licenses, as he had represented on his application. By letter dated October 5, 1995, Respondent advised Petitioner that it had reconsidered his application and determined that he had the right to sell 16 nets, not eight nets, but none could be a seine net. Respondent issued Petitioner a new voucher for these additional eight nets. This voucher is in the amount of $7996.80 for 4800 yards of deepwater gill net. On October 13, 1995, Petitioner turned in eight nets and received his money. Petitioner's application lists no seine nets. His application, as noted above, lists one and one-third shallow- water gill nets (i.e., 800 yards), eight deepwater gill nets, two trawls, and one trammel net. 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 it is Petitioner's unique fortune to have been intimately involved with all three phases of the Net Buy-Back Program. Evidently 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 fishers 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. At the time of the final hearing, Respondent estimates that the Account balance is about $300,000 with about 160 contested claims remaining to be resolved.
Recommendation It is RECOMMENDED that the Department of Labor and Employment Security enter a final order dismissing the petition for additional payment from the Account. ENTERED on October 3rd, 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 3rd, 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 John Wayde Campbell 1103 67th Street Northwest Bradenton, Florida 34209 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 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 Background On July 7, 1989, respondent, Florida Marine Fisheries Commission (Commission), duly noticed proposed rule 46-31.002 in volume 15, number 27, of the Florida Administrative Weekly. The notice also advised all interested persons that a public hearing would be held on August 3, 1989, before the Commission on the proposed rule. On August 3-4, 1989, the Commission held a public hearing at which time it considered the proposed rule. During the course of this hearing, the Commission approved the proposed rule with certain changes. These changes, as well as the complete rule text, were duly noticed in volume 15, number 35, of the Florida Administrative Weekly on September 1, 1989. Petitioner, Concerned Shrimpers of America, Inc., Florida Chapter, by petition filed with the Division of Administrative Hearings on July 28, 1989, timely challenged the proposed rule pursuant to Section 120.54, Florida Statutes, as an invalid exercise of delegated legislative authority. Petitioner and Intervenors Petitioner has, pursuant to stipulation of the parties, standing to contest the validity of the proposed rule. Intervenor, Center for Marine Conservation, Inc., is, pursuant to stipulation of the parties: ... a non profit environmental protection and education organization incorporated under the laws of the District of Columbia and authorized to do business in Florida. It has in excess of 7,000 members throughout the state. Its major purpose is the protection of marine wildlife for this and future generations, including sea turtles, for the benefit of the species, the corporation and its members... Members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Florida Audubon Society, is, pursuant to stipulation of the parties: ... a non profit Florida corporation with over 35,000 members within the state whose main purpose is to protect Florida's natural outdoor environment and wildlife, including the marine environment and sea turtles, for the benefit of the organization and its members. The members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Greenpeace-U.S.A., is, pursuant to stipulation of the parties: ...headquartered in Washington, D.C., [and] is the United States office of Greenpeace, an international environmental organization with offices in over twenty countries and approximately two and one-half million supporters worldwide. Greenpeace- U.S.A has more than one million supporters in this country, including over 60,000 who live in the State of Florida. Greenpeace- U.S.A. has two offices in Florida, located in Ft. Lauderdale and Jacksonville Beach.... On behalf of its members and threatened and endangered species, Greenpeace-U.S.A. places special emphasis on the preservation of marine species and the marine environment and has worked extensively for the protection of threatened and endangered marine animals. The sea turtle campaign is one of the principal campaigns of the organization.... For the past five years, Greenpeace-U.S.A. has operated the Beach Patrol Project. The Project seeks to maintain protected nesting areas for threatened and endangered sea turtles in the coastal areas of the southern United States. Based in the Jacksonville Beach office, the Project places approximately 250 Greenpeace-U.S.A. volunteers on Florida beaches every year. The Beach Patrol Project has also contributed to the conservation effort in its documentation and identification of species of sea turtles which have been stranded and washed ashore.... Intervenor, Florida League of Anglers, Inc., is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rule. The proposed rule The proposed rule at issue in this case prohibits the use of any trawl (net) in state waters that does not have a qualified turtle excluder device (TED) installed therein, as well as the possession aboard any vessel in state waters of a trawl rigged for fishing that does not have a qualified TED installed in it. Excepted from the rule, under specified conditions, are test nets, roller frame trawls, trawls used for experimentation purposes authorized by the National Marine Fisheries Service (NMFS), and trawls operated on the inside waters of the state. The purpose of the proposed rule is to protect sea turtles from extinction, primarily the endangered Kemp's ridley turtle, by reducing the incidental catch and mortality of sea turtles in shrimp trawls. 1/ Currently, five species of sea turtles occur in state waters. These species are the Atlantic green turtle (Chelonia mydas mydas); Atlantic hawksbill turtle (Erelmochelys imbricata imbricata); Atlanta ridley turtle (Lepidochelys kempi), also known as the Kemp's ridley; Leatherback turtle (Dermochelys coriacea); and Loggerhead sea turtle (Caretta caretta). Persuasive proof demonstrates that the incidental catch and drowning of sea turtles by shrimp trawls is a significant source of mortality for the species, and that absent the elimination of that mortality factor the green turtle, hawksbill turtle, Kemp's ridley turtle, leatherback turtle, and loggerhead turtle are threatened with extinction. 2/ Use of the TEDs mandated by the proposed rule will substantially reduce the incidental capture of sea turtles by shrimp trawls, and thereby eliminate shrimp trawls as a significant source of mortality for the species. Currently, the proposed rule permits the use of any one of six TEDs approved by the NMFS, which have demonstrated a turtle exclusion rate of at least 97 percent. The rule also permits the use of any TED that may subsequently be approved by the NMFS as demonstrating a turtle exclusion rate of at least 97 percent. 3/ The rule challenge In challenging the proposed rule, petitioner does not question the need for the rule to protect the sea turtles from extinction, nor the effectiveness of the TED to eliminate a significant threat to the survival of the species. Rather, petitioner contends that: (1) the Commission exceeded its grant of rulemaking authority, which will be discussed in the conclusions of law, infra; (2) that the Commission materially failed to follow the applicable rulemaking procedures set forth in section 120.54 by failing to notify the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce at least 21 days prior to the public hearing on the proposed rule, as well as by failing to prepare an adequate economic impact statement; and, (3) that the proposed rule contravenes the specific provisions of law implemented because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fisherman, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Notice regrading the impact of the proposed rule on small business Section 120.54(3)(b), Florida Statutes, mandates that where, as here, the proposed rule will affect small business, that "the agency shall send written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action." Here, the proof demonstrates that the Commission held its public hearing on the proposed rule, and approved it, on August 3-4, 1989, but that it did not provide written notice to the previously mentioned agencies until July 21, 1989, a date less than 21 days before the public hearing. While the Commission failed to accord the named agencies with the minimum 21-day notice mandated by section 120.54(3)(b), the proof fails to demonstrate that such failure constituted a material failure to follow the applicable rule making procedures. Here, the agencies never objected to the inadequacy of the notice; the agencies have never requested an opportunity to present evidence and argument or to offer alternatives regarding the impact of the proposed rule on small business; and there was no showing that the Commission's failure to accord the agencies the full 21-day notice impaired their ability to, or influenced their decision not to, participate in the rule making process. In sum, petitioner failed to demonstrate that the Commission's failure to accord 21 days notice to the named agencies resulted in any incorrectness or unfairness in the proposed adoption of the rule. The economic impact statement Pursuant to the provisions of Section 120.54(2)(b), Florida Statutes, the Commission prepared an economic impact statement for the proposed rule. The economic impact statement was prepared by Robert Palmer, the Commission's economic analyst, an expert in economics. Petitioner challenges the adequacy of the economic impact statement (EIS) prepared for the proposed rule by contesting its accuracy in some respects, its failure in other respects to address the costs to the agency for implementation of the proposed rule, and its failure to address the cost and economic benefit to persons directly affected by the proposed rule. Here, while it is arguable that the Commission's EIS could have been more thorough in some respects, the proof fails to demonstrate any material error that impaired the fairness of the rule making proceeding or the correctness of the Commission's decision to approve the proposed rule. Rather, the proof demonstrates that where errors or omissions occurred in the EIS that the Commission was supplied with the correct information at the public hearing, their impact was of de minimis import, or the costs and benefits were speculative or incapable of estimation. Compliance with statutory standards Pertinent to this case, Section 370.027(1), Florida Statutes, contemplates that the Commission will, in exercising its rule making authority, apply the policy and standards set forth in Section 370.025, Florida Statutes. In this regard, section 370.025 provides: The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as head of the department shall be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Inconsistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. (Emphasis added). Petitioner's final challenge to the validity of the proposed rule is its contention that the Commission's action in approving the proposed rule contravenes the provisions of section 370.025 because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fishermen, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Petitioner's contentions are not persuasive. First, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(h) because it is inconsistent with the federal regulation regarding the mandatory use of TEDs, the proof demonstrates that, due to the presence of sea turtles in state waters all year round, mandating the use of TEDs at only particular times of the year along certain areas of the coast, as the federal regulations do, would not achieve the Commission's preservation goal, and therefore would not be in the best interest of the sea turtles or residents of the state. Therefore, the Commission's action was not inconsistent with section 370.025(2)(h) Second, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(b) because it failed to consider the best sociological information available, section 370.025(2)(a) is informative since it mandates that any rule of the Commission be consistent, before all else, with the following standard: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Faced with persuasive proof that the incidental catch and drowning of sea turtles by shrimp trawls was a significant source of mortality for the species, and that absent the elimination of that mortality factor the species inhabiting state waters were threatened with extinction, the Commission reasonably concluded that it had two options to protect the sea turtles: to prohibit shrimp trawling in state waters or mandate the use of TEDs and permit shrimp trawling to continue. 4/ Such being the options, very little, if any, sociological information was necessary to support the Commission's conclusions that the mandatory use of TEDs, as opposed to a prohibition on shrimp trawling in state waters, would be the least disruptive management measure to the sociological structure of the shrimp fishing community. While almost irrelevant to the instant case, the proof does, however, demonstrate that the Commission had before it the pertinent sociological information it needed to appreciate the impact of the proposed rule on the shrimp fishery community. Such information included an appreciation of the fact that the shrimping community constitutes a societal segment, or self-contained entity, that is in large measure divorced from society in general; that unique familial relationships exist within the shrimp fishing community; that the mandatory use of TEDs had led to a feeling of uncertainty among shrimp fishermen concerning the continued survival of the industry; and that should shrimp fishermen experience significant losses as a consequence of the mandated use of TEDs that they may be forced from the shrimp fishing business, and their community and family relationships disrupted. Under the circumstances of this case, the Commission's action was consistent with section 370.025(2) (b).
