Findings Of Fact Petitioner is a Swiss national, who resides in Jamaica. His business in Jamaica involves water sports and vacation tours, primarily for European tourists. Petitioner attended a boat show in Fort Lauderdale, Florida, in order to locate a suitable boat for entertainment and tour purposes for use by his business in Jamaica. There, he saw The Lady, a vessel being brokered by Anchorline Yacht and Ship Brokerage, Inc., of St. Petersburg, Florida. On February 28, 1980, Petitioner purchased The Lady from Anchorline for $120,000. Prior to that date, a survey was conducted by Wilkinson Company, marine surveyors, and repairs indicated by that survey were completed at South Pasadena Marina, Inc. At the time that Petitioner purchased The Lady from Anchorline, he advised the broker that he was taking the vessel out of the country. Accordingly, the broker required Petitioner to sign an affidavit that Petitioner had read the provisions of Section 212.05, Florida Statutes, and no tax was collected on the sale and purchase of The Lady. As The Lady was journeying from St. Petersburg across the State of Florida to West Palm Beach in order to reach Jamaica, she started taking on water. She was taken to Lantana Boatyard, where another marine survey was conducted. That survey concluded that The Lady was not seaworthy and, therefore, could not be taken to Jamaica at that time. As one of the required repairs, her engines needed to be overhauled by Cummins in Miami. Accordingly, after the repairs to be made at the Lantana Boatyard were completed, The Lady was taken to the Keystone Point Marina in North Miami, Florida, so that the work on her Cummins engines could be undertaken. During this time, Petitioner attempted to register The Lady in Jamaica; however, the Jamaican Government refused to license or register the vessel since she was not in Jamaica but was still physically located within the State of Florida. As a result of discussion between Petitioner and a Mr. Mathews at Anchorline, on September 18, 1980, the Petitioner made application for a Florida boat Certificate of Title at a tag agency. He reported the purchase price as ten dollars and, accordingly, paid forty cents tax on the transaction. Cummins started the repair work necessary on The Lady's engines while she had been docked at the Keystone Point Marina. On occasion, Petitioner has stayed overnight on The Lady for security purposes. He has had a telephone attached to the vessel for his personal use while on board. On January 7, 1981, Respondent Department of Revenue issued a Warrant for Collection of Delinquent Sales and Use Tax against the Petitioner in the total amount of $9,967.37, representing the follows: Tax $4,799.60 Penalty 4,799.60 Interest 350.17 Filing Fee 18.00 $9,967.37 On January 19, 1981, Petitioner made payment to Respondent Department of Revenue in the amount of $5,167.77, which payment was made under protest and which payment represents the amount of tax, interest, and filing fees, but does not include the amount of penalty. Pursuant to its warrant, the Department of Revenue has chained The Lady to the dock at the Keystone Point Marina. Accordingly, the work being performed by Cummins on her engines has not been completed, and no sea trial can be conducted. As stipulated by the parties, since the Petitioner purchased The Lady, she has been under repair and has never left Florida waters.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is therefore, RECOMMENDED THAT: A final order be entered denying Petitioner's claim for a refund, finding the Petitioner liable for a sales tax equal to four percent of the purchase price, together with interest and filing fees, but finding the penalty assessed against Petitioner to be erroneous and therefore invalid. DONE AND ENTERED this 8th day of October 1981 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October 1981. COPIES FURNISHED: Michael Lechtman, Esquire 801 N.E. 167th Street, Suite 301 North Miami Beach, Florida 33162 John Browdy, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. Randy Miller Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32301 The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following relevant facts are found: Petitioner, Southeastern Fisheries Association, Inc., is a not-for- profit incorporated association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, employing approximately 14,000 employees, and including 450 corporate and individual members. The executive offices of Southeastern Fisheries Association, Inc. are located at 312 East Georgia Street, Tallahassee, Florida 32301-1791. The members of Southeastern Fisheries Association, Inc., either catch, process, transport or sell Spanish mackerel and Spanish mackerel constitutes a major part of their business and livelihood. Petitioner, Organized Fishermen of Florida, Inc., is a not-for-profit incorporated association of 2,000 commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, with its headquarters at P. O. Box 740, Melbourne, Florida 32901. Petitioner, Harry H. Bell & Sons, Inc., is a fish processor and sales company employing about 210 employees, located at 756-28th Street South, St. Petersburg, Florida 33712. A large percentage of the fish processed by Harry H. Bell & Sons, Inc., are Spanish mackerel. Petitioner, Bayside Shellfish, Inc., is a fish processor and fish seller, located at P.O. Box 176, Apalachicola, Florida 32320. This petitioner also obtains a substantial amount of its business through the processing and sale of Spanish mackerel. Petitioner, Inlet Fisheries, Inc., is a corporation with its headquarters at P. O. Box 3604, Ft. Pierce, Florida 33450, which unloads and ships fish, and, in particular, Spanish mackerel. Petitioner, J. O. Guthrie, Inc., is a fish processor located at P.O. Box 895, Ruskin, Florida 33570. This petitioner processes fish, including Spanish mackerel, which makes up a high percentage of its fish processing. Petitioner, C. & W. Fish Co., Inc., is a company which unloads and ships fresh fish, located at P.O. Box 1356, Port Salerno, Florida 33492. This petitioner earns its living from the loading and shipping of fresh fish including Spanish mackerel. Petitioner, City Fish Company, Inc., also unloads and ships fish and is located at 3880 Gulf View Avenue, Marathon, Florida 33050. Intervenor, Florida Conservation Association, located at 402 West College Avenue, Tallahassee, Florida 32301, is an affiliate of the Coastal Conservation Association, a non-profit corporation incorporated under the laws of Texas. Effective November 28, 1985, the Marine Fisheries Commission (MFC) adopted rules relating to the commercial harvesting of Spanish mackerel on the East Coast of Florida. As pertinent to this proceeding, those rules prohibited the harvesting of Spanish mackerel by power-assisted gill netting in Dade and Palm Beach Counties, and imposed a 3 and one half-inch mesh size minimum for the monofilament portion of gill nets used to take Spanish mackerel from the remainder of the East Coast of Florida until March 15, 1990. After that date, the entire net was to have a minimum mesh size of 3 and one half inch stretched mesh. These net size requirements were applicable to all gill nets used on the East Coast to harvest Spanish mackerel during the period from November 15th to March 15th. The existing rule allows the harvest of Spanish mackerel as an incidental by-catch of other lawfully targeted species, so long as the combined weight does not exceed 15 percent of the total weight of the lawfully harvested species. The challenged proposed amendments to the MFC's Spanish mackerel rules continue the Palm Beach and Dade Counties gill net closures; establish gill net minimum sizes for three different regions of Florida; closes the weekend harvesting of Spanish mackerel by use of any nets; establishes set seasons for operators of vessels greater than 40 feet in length using power- assisted gill nets, said seasons subject to being shortened if the total regional commercial catch is projected to reach a specified poundage; and imposes a limit on the number of Spanish mackerel which recreational fishermen may possess per day. More specifically, the challenged proposed rules impose the following net size requirements on the harvesting of Spanish mackerel for the three regions of Florida. For the East Coast, defined as those state waters north of the Dade-Monroe County line, the period of the 3 and one half inch mesh size for the monofilament portion of gill nets is shortened to October 1, 1988, with the required minimum size being increased to 3 5/8- inches thereafter until October 1, 1990, whereupon all portions of gill nets are to be 3 5/5 inches stretched mesh. For the Southwest Coast, defined as state waters between the Taylor-Dixie County line and the Dade-Monroe County line, the minimum monofilament portion mesh size is 3 3/8 inches until October 1, 1988, increasing to 3 5/8 thereafter until October 1, 1990, whereupon the entire net is to have a minimum mesh size of 3 5/8 inches stretched mesh. The corresponding requirement for the Northwest Coast, defined as state waters west of the Taylor-Dixie County line, is 3 inches until October 1, 1988, increasing to 3 5/8 inches thereafter. Except for the 15 percent by-catch allowance provided in the existing rule, harvesting Spanish mackerel by use of any net is prohibited in all three regions on weekends, defined as commencing at sunset on Friday and ending at sunset on the following Sunday. Identical commercial fishing seasons for the use of power-assisted gill net gear by vessels greater than 40 feet in length are set for all three regions of Florida. That season opens on December 15 of each year and closes on November 1 of the following year. For other forms of commercial harvesting of Spanish mackerel, the season is year-round, or defined as from December 15 through December 14 of the following year. However, the proposed rule, Rule 46- 23.004, provides a mechanism for shortening the seasons in each region for all forms of commercial fishing (except for the various by-catch allowances) when the total harvest for each region reaches a specified number of pounds. For the larger vessels using power-assisted gill nets, the seasons for the East Coast, Southwest Coast and Northwest Coast close prior to November 1st if the total regional commercial harvest is projected to reach, respectively, 1,670,400 pounds, 1,350,900 pounds and 354,600 pounds. For commercial fishermen using other types of gear, the year-round season will close when the total regional commercial harvest in the season reaches, before December 14, 1,856,000 pounds (East Coast), 1,501,000 pounds (Southwest Coast) and 394,000 pounds (Northwest Coast). In addition to the 15 percent by-catch allowance previously mentioned, the proposed rule also excepts from the required season closures Spanish mackerel harvested as an incidental by-catch of other lawfully targeted species so long as the total weight of mackerel does not exceed 500 pounds, as well as those harvested with a net size greater than 4 inches stretched mesh used to lawfully harvest another target species. When the specified poundages which trigger the closing of the seasons are projected to be reached, the proposed rule provides for the giving of notice by the Executive Director of the Department of Natural Resources in the manner provided in Section 120.52(15)(d), Florida Statutes. Proposed Rule 46-23.005 sets forth a bag limit for recreational fishermen which applies during all times of the year. That limit is four Spanish mackerel per person per day. Because of evidence indicating that the abundance of Spanish mackerel in Florida is declining, the MFC began considering that fishery as a subject of possible regulation in March of 1984. Stock assessments were performed and updated, federal studies and mackerel fishery management plans were considered, various workshops and meetings were held, and numerous management option papers and alternatives were considered. Many of the witnesses in the instant rule- challenge proceeding appeared before, testified or otherwise provided input to the MFC during the rule promulgation process. In considering the proposed regulations, the MFC had before it evidence that commercial and recreational landings of Spanish mackerel had substantially decreased since the 1970's and that seasonal and areal compression had occurred in this fishery. While it could not be concluded with certainty whether the resource was experiencing recruitment overfishing or growth overfishing, the MFC determined that the resource was being overfished to the extent that a reduction in effort and an increase in the size of the fish caught was necessary to protect, conserve and recover the resource. While single year or seasonal commercial and recreational landing statistics may not be entirely accurate due to under-reporting, they are reliable indicators of trends and can be utilized to indicate abundance. Likewise, declining commercial landing statistics can be indicative of a decline in the effort directed toward harvesting and/or market conditions. In approximately 1977, there were over 120 large roller rig boats in the Spanish mackerel fishery. At the present time, there are approximately 41 large roller rig vessels utilized to commercially harvest Spanish mackerel. The size of fish desired in the market has changed somewhat, with a declining demand for the smaller fish. While the price of Spanish mackerel per pound has remained relatively stable over the past ten or more years, its price in relationship to other species of fish and shellfish has declined. The above factors, as well as the voluntary use of larger mesh size nets and the recent closure of Palm Beach and Dade Counties, may provide some rationale for the decline in commercial landing statistics since the 1970's. However, given the evidence concerning a decline in recreational landings, seasonal and areal compressions, and the increased capacity of large power-assisted gill netting vessels, it was not unreasonable for the MFC to conclude that the decline in commercial landings is indicative of a decline in abundance resulting from overfishing. The conceptual goal of the proposed rules is to return the Spanish mackerel fishery to the condition in which it was in the early 1970's. In order to accomplish this goal, the MFC determined to effect an approximate 45 percent reduction in efforts devoted to harvesting and to effect an increase in the size of the fish harvested for commercial purposes. The minimum gear size proposed is directed toward the desired fish size, and the reduction in effort goal is to be accomplished through continued closures of certain areas, weekend closures, and the establishment of commercial seasons, commercial season catch limits and recreational bag limits. Gill mesh nets are highly selective for a specific size of fish. A 1/8 inch difference in gill net mesh size makes a significant amount of difference in the size of the fish caught. The large nets utilized for Spanish mackerel harvesting can cost up to $20,000.00, with the monofilament portion of the net costing between $3,000.00 and $4,000.00. Due to destruction by sharks and normal wear and tear, the life expectancy of the monofilament portion of a gill net is between 1/2 to 3 seasons. The initial minimum mesh sizes proposed in the challenged rules for the monofilament portion of gill nets are reflective of the sizes currently being utilized in the industry in each of the three regions specified in the rule. No conclusive scientific data exists on a statewide basis as to the size of fish that will be captured using a 3 5/8 inch gill net mesh size. The MFC does intend to gather more data concerning gill net mesh size selectivity, and that is one of the reasons the proposed rule delays imposition of the 3 5/8 inch requirement until October of 1988. The evidence does demonstrate that Spanish mackerel in the Northwest Coast region or Panhandle area tend to be longer and thinner with less yield per fish than those found in the East Coast or Southwest Coast areas. There is insufficient evidence to conclude, however, that the Gulf Spanish mackerel stock and the Atlantic Spanish mackerel stock constitute two separate populations. Due to the seasonal migration of the Spanish mackerel in a southerly and northerly direction along the East Coast of Florida, it is impossible to determine the precise impact on effort reduction of the closure of Palm Beach and Dade Counties. The MFC heard evidence from commercial fishermen that the impact from closing those areas could result in a reduction in catch of at least 30 percent. The MFC's calculation of a lower percentage was not unreasonable given the large capacity of the power-assisted gill net industry and the potential for harvesting Spanish mackerel while en route to or from these closed counties. The proposed season catch limits for commercial fishermen are intended to provide a backup to the other effort reduction measures in the proposed rules. It is intended that if the commercial seasons for larger power-assisted rigs, the weekend closures, the increased net sizes, and the areal closures do not significantly reduce the actual landings of Spanish mackerel in Florida, then the season for all commercial fishing can be shortened to effectuate such a result. The quota for each region constitutes a fixed cap on commercial landings per season. Consequently, if abundance does increase, there is no automatic mechanism in the proposed rule for increasing season catch limits. This, of course, will result in the unreliability of landing statistics alone as an indicator of stock abundance. Because the proposed rule contains no restrictions upon the number of recreational fishermen who may enter the fishery, no season for recreational fishing and no limit upon the number of fish caught, as opposed to possessed, by recreational fishermen, the rule could cause some reallocation of the Spanish mackerel fishery from the commercial sector to the recreational sector. In recent years, the commercial sector has maintained at least a 75 percent share of the Spanish mackerel resource. Within the commercial sector, there is no domestic substitute for Spanish mackerel.
Findings Of Fact Appellant, Nostimo, Inc. (Nostimo), owns lots 8, 9, 10 and 11, Block 8, revised plat, in a Clearwater Beach subdivision located at 32 Bay Esplanade, Clearwater, Florida. Appellant, Pick Kwik Food Stores, Inc. (Pick Kwik), operates a Pick Kwik convenience store at the location. The subject Pick Kwik store is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City of Clearwater and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. Mandalay narrows from four to two lanes just south of the subject location. From the point at which it narrows to two lanes, Mandalay furnishes the only access to the primarily residential neighborhoods to the north. Bay Esplanade is a much shorter street that runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. Before the Pick Kwik store began to do business at the location, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on- and off-premises consumption of alcohol. The lounge did not generate substantial numbers of customers and associated traffic. It was very small, and a congregation of four or five customers at any one time was a large crowd. In general terms, the location is surrounded by mixed uses, including a 7 rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. In addition to a number of commercial establishments within the immediate area, there are tennis courts, a parking area, community boat ramp, soccer field, playground and public park. In the area, there are apartments, rental units and condominiums, including some directly behind the subject location. There is a church a block away, and there is a playground next to the church that is used by area young people, many of whom use bicycles as their means of transportation. On April 25, 1989, Nostimo and Pick Kwik applied for a conditional use permit to sell beer and wine, for off-premises consumption, at the location. The application was heard at a meeting of the City of Clearwater Planning and Zoning Board (the Board) on June 14, 1989. The Board denied the application, and Nostimo and Pick Kwik appealed under Section 137.013 of the Clearwater Land Development Code (the Code). The appeal was heard by a Division of Administrative Hearings Hearing Officer, who entered a Final Order on October 9, 1989, upholding the denial. The Hearing Officer found in his Final Order in part: At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick [sic] convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick [sic] store and a former employee of the 7 when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). On November 7, 1989, Nostimo and Pick Kwik filed a two-count complaint in circuit court: Count I, a petition for common law certiorari review of the Hearing Officer's decision; and Count II, attacking the constitutionality of Section 137.011(d)(6) of the Code. On November 19, 1990, the circuit court entered orders (1) denying the petition for common law certiorari and (2) granting a motion to dismiss Count II. It was represented that a Final Judgment of Dismissal, addressed to Count II, was entered on March 22, 1991, and that Nostimo and Pick Kwik appealed the final judgment to the District Court of Appeal, Second District of Florida, where it remains pending. On April 16, 1991, Nostimo and Pick Kwik filed another application for a conditional use permit to sell beer and wine, for off-premises consumption, at the 32 Bay Esplanade location. The application is identical to the one filed on April 25, 1989, except in one respect: the second application provides that sales of alcoholic beverages at the location would not begin until 9:00 a.m., whereas the April 25, 1989, application was for a permit to begin sales of alcoholic beverages at the location at 8:00 a.m., as authorized by local ordinance. During the staff review of the April 16, 1991, application, the applicants also offered to agree to other conditions or restrictions in response to staff concerns: (1) the applicants would provide a security guard to patrol its three Clearwater Beach establishments between the hours of 8:00 p.m. and 2:00 a.m. on Friday and Saturday nights, with monitoring reports submitted to the City Planning and Development Department not less than quarterly; 2/ (2) the applicants would obtain the requisite alcoholic beverage separation distance variance from the City Commission; 3/ (3) the applicants would obtain the requisite occupational license within six months of the date of the public hearing on the application; and (4) the applicants would restrict the hours of operations for alcoholic beverage sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. until 12:00 midnight on Sunday. At the Board hearing, the human resources manager for Pick Kwik outlined Pick Kwik's procedures and guidelines for the sale of alcohol. There is a policy manual in each store as well as a handbook provided to each employee outlining the procedures to be followed regarding the sale of alcohol, including procedures to prevent sales to minors and disciplinary action if the procedures are not followed. All employees also attend an orientation which includes responsible vendor training. These policies are enforced by Pick Kwik through monthly inspections. There are 17 existing establishments fronting on Mandalay Avenue that sell alcoholic beverages. Just three are north of Bay Esplanade, including the 7 There are another three establishments selling alcoholic beverages south of Bay Esplanade fronting on streets other than Mandalay. There also is one fronting on Bay Esplanade. There is one restaurant on Mandalay north of Bay Esplanade that has a pending application for a permit to sell alcoholic beverages. At the Board hearing on the April 16, 1991, application, held on July 30, 1991, opponents of the application introduced in evidence the record of the hearing held on June 14, 1989, on the April 25, 1989, application filed by Nostimo and Pick Kwik. Included in the record of the prior hearing was the testimony of Lt. Palumbo, who expressed concerns about increased traffic, loitering and rowdy behavior if the conditional use permit were issued. Opponents of the application also introduced in evidence at the Board hearing the Final Order entered by the Hearing Officer in the prior proceeding. See Finding of Fact 6, above. The Board considered the record of the prior proceeding in evaluating the April 16, 1991, application. But the Final Order in the previous proceeding seemed to be based on a misapprehension that the Pick Kwik store would be open for the sale of beer and wine 24 hours a day. See Finding of Fact 6, above. In addition, given the existance of the 7 street, the evidence presented in the hearing on the April 16, 1991, application put in perspective Lt. Palumbo's testimony that allowing the sale of beer and wine at the Pick Kwik would "generate larger volumes of traffic and customers, particularly during the evening hours" and would "have a negative impact on 'community services' by placing a greater demand on police resources." At the Board hearing, the staff of the City Planning and Development Department recommended approval. 4/ The City's Planner, Scott Shuford, testified that traffic no longer was considered to be a substantial problem. The City Traffic Engineer did not anticipate a substantial increase in traffic as a result of granting the application. The traffic experts had difficulty differentiating between a convenience store selling beer and wine, and one that does not, primarily because they were unaware of any other convenience store that does not sell beer and wine. But the evidence was clear that, since the 7 and wine across the street from the Pick Kwik location, there would be only a slight increase in traffic resulting from selling beer and wine at the Pick Kwik location. Two convenience stores located across the street from one another generally share the available business in the market area. The addition of a store across the street from an existing store would be expected to generate perhaps 12 percent more aggregate revenue. (This approximates the new store's capture of the "leakage" that resulted when potential customers driving on the opposite side of the street chose to bypass the preexisting store.) Beer and wine sales make up approximately 7 to 8 percent of a convenience store's gross revenue. Assuming that two stores across the street from each other also would generate 12 percent more aggregate revenue from the sale of beer and wine than a single store, and also assuming that the percentage of additional gross revenue represents additional trips to one of the two stores, the impact of allowing the sale of beer and wine at the Pick Kwik location would be 7 to 8 percent (representing the beer and wine percentage of gross revenue) of 12 percent (representing the aggregate increase in gross revenue from adding a convenience store across the street from another one), or between 0.84 and 0.96 percent, at most. The staff's recommendation to grant the April 16, 1991, application was subject to the addition of a fifth condition or restriction prohibiting sales of single containers of alcoholic beverages (other than bottles of beer and wine containing less than 750 ml). The evidence was clear that this condition would present enforcement problems. In addition, imposition of this condition or restriction at Pick Kwik without imposing the same condition or restriction at the 7 contrary, it might increase traffic problems as a result of customers wanting to buy single containers at the Pick Kwik subsequently crossing the street to make the purchase at the 7 On the other hand, tying the duration of the conditional use benefitting the Pick Kwik location to the duration of the conditional use benefitting the 7 proceeding that implementation of Section 137.011 of the Code will result inexorably in an increase in the number of establishments selling beer and wine, for off-premises consumption, in Clearwater Beach and, particularly in the north end of the Beach. This would result, at an appropriate future date, in the simultaneous consideration of the compatibility of the sale of beer and wine at both the Pick Kwik and the 7 condition or restriction.
The Issue The issue is whether the City of Miami (City) should be issued Consolidated Environmental Resource Permit (ERP) and Letter of Consent to Use Sovereign Submerged Lands Permit No. 0217762-002-EI (Permit) for the Dinner Key Managed Mooring Field in the Biscayne Bay Aquatic Preserve in Miami, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner resides at the Dinner Key Anchorage, Coconut Grove, Florida. He has filed an Amended Petition challenging the issuance of the Permit. However, he presented no evidence at hearing to support the allegations in his Amended Petition or to demonstrate how his substantial environmental interests are affected by the Department's action. Therefore, he lacks standing to bring this action. The Department is the state agency with regulatory jurisdiction over the disputed activities. The Department has proposed to authorize the construction of a managed mooring field in, on, and over surface waters in the Biscayne Bay Aquatic Preserve in Miami. (A mooring field uses anchoring devices that are embedded into the bay bottom and used to secure boats in the subject area.) The City will operate and manage the mooring field in accordance with a management plan attached to and incorporated in the proposed Permit. The City is the applicant for the Permit. It owns and operates three municipal marinas including the Dinner Key Marina in Coconut Grove. The City proposes to create a managed mooring field in the waters off Dinner Key Marina. Those waters are part of the Biscayne Bay Aquatic Preserve, a legislatively- created aquatic preserve which is to "be preserved in an essentially natural condition." See § 258.397(1), Fla. Stat. (2006). Background In the waters off Dinner Key Marina, there is an unregulated, unmanaged anchorage area. (Unlike a mooring area, in an anchorage area vessel owners drop their own anchoring devices, such as I-beams, steel beams, cement blocks, engine blocks, and other similar devices down to the bay bottom to secure their vessels.) In 1994, the City sought the assistance of the Miami-Dade County Department of Environmental Resource Management (DERM) to examine the effects of the Dinner Key Anchorage on City waters and to determine the feasibility of creating a managed mooring field in the area. The historical use of the unregulated, unmanaged anchorage area by vessel owners created issues for the City. The City's concerns included diminished water quality from illegal vessel discharges of waste and a chronic problem with derelict vessels. Also, they included the improper use of anchors and ad hoc anchoring systems that damaged the seagrass and other submerged resources of the bay bottom. In addition, during Hurricane Wilma in 2005, there were two recorded deaths of anchorage vessel owners who elected to stay on their vessels and which utilized unsafe anchoring systems. DERM conducted a biological assessment of the City- owned bay bottom adjacent to the Dinner Key Marina on December 7, 1994, and January 11, 1995. The assessment had three purposes: (1) to identify specific areas which are best suited for a designated mooring facility; (2) to identify environmentally sensitive areas where anchoring or mooring should be prohibited or discouraged; and (3) to identify the location of submerged and/or derelict vessels. DERM identified five main mooring areas and made recommendations as to future designation and use. Three of those areas are the subject of the City's Permit application. The "shallow south anchorage" (identified as the vessel exclusion area or Area 5 in the Permit) had a water depth ranging from one to four feet. Seagrass was dense throughout the area but anchor lines, chains, and debris had created some barren areas. The debris included vessel hulls, engine blocks, outboard motors, and other items comprising the ad hoc anchoring systems. Based on the shallow water depth and the presence of a diverse benthic community providing considerable habitat value, DERM recommended that no vessels moor or anchor in the "shallow south anchorage." The "deep south anchorage" (identified as Project Area 4 in the Permit) lay between the south channel leading into the Dinner Key Marina and vessel exclusion Area 5. Water depth ranged from eight to ten feet. Moderate to sparse seagrass beds were observed in this area. DERM recommended this area as a potential overflow mooring area if the "east anchorage" did not provide sufficient mooring space. The "east anchorage (identified as Project Area 3 in the Permit) was located between the main and south channels leading into the Dinner Key Marina. DERM recommended this area as the principal mooring facility based on the existing water depth and presence of minimal benthic resources. DERM's submerged and/or derelict vessels survey counted twenty to forty wrecked and derelict vessels sunk in the waters within the assessment area. DERM also observed that the existing debris and anchoring systems drag across the bay bottom and destroy existing seagrass beds. DERM warned the City that it was liable for adverse impacts to submerged resources of the City-owned bottom lands. In 2000, the City sought the assistance of the Department to help create a Technical Assistance Team (TAT). The purpose of the TAT was to examine the Dinner Key anchorage area, gather information from various experts, conduct public meetings, and make recommendations to the City concerning creating a managed mooring and anchoring facility. The TAT consisted of volunteers from the Department, the United States Coast Guard, the City's Marine Patrol, the Florida Fish and Wildlife Conservation Commission, assorted marine industry professionals, and the boating public, including several vessel owners from the Dinner Key anchorage. The TAT volunteer group studied the current and future anchorage situation. The group convened public meetings at City Hall located at Dinner Key Marina for one year beginning in June 2001. The TAT then submitted a Final Report to the City Manager and the City's Waterfront Advisory Board in June 2002. The Final Report consisted of extensive findings and recommendations regarding the creation of Managed Anchorage and Mooring Fields in the Dinner Key Marina area. That document has been received in evidence as City Exhibit 3 and Department Exhibit 29. The Final Report identified the physical features, shoreline activities, benthic resources, and historic and existing uses of the Dinner Key Marina harbor area. It also identified and described five potential mooring fields which were approximately the same five identified by DERM in 1995. In terms of physical characteristics, benthic resources, and existing uses, the areas were largely unchanged since the 1995 DERM assessment. The Final Report identified several management concerns for the Dinner Key study area that needed to be addressed by the City. These included lack of full-service boatyard facilities in the area; inadequate dinghy access to uplands; inadequate use by boaters in the area of available sewage pump out facilities at the Dinner Key Marina; unauthorized repair of vessels on site; and upland stormwater runoff. Other concerns included submerged debris and ad hoc anchor systems which caused adverse impacts to valuable benthic resources. Also, unsecured anchoring systems presented serious safety concerns even during mild storm events. Accordingly, the Final Report concluded that penetrating anchor systems would provide the highest vessel security and minimize benthic disturbances. The Final Report also concluded that approximately ten percent of the vessels surveyed were abandoned or neglected and presented a significant navigational and public safety concern. To remedy that situation, since 2003 the City has spent $345,000.00 removing over two hundred and forty damaged and derelict vessels from City waters. Approximately ninety percent were removed from the Dinner Key area. Based on the TAT's report and recommendations, the City proceeded with the design and permitting of managed mooring fields in the Dinner Key Marina area. The Proposed Permit In contrast to an area of random or voluntary mooring, a managed mooring field will have an engineered anchor and buoy system at each designated mooring. The City's proposed design is an auger anchor that is screwed into the bay bottom to a depth of fifteen feet or more. A synthetic line with shock absorbers vertically connects to a buoy so that there is no horizontal chain dragging across the submerged resources of the bay bottom. The City's application proposes a managed mooring field that will accommodate two hundred twenty-five vessels in Phase I identified as Areas 3 and 4 on sheet 1 of 27 of the Permit drawings. The mooring field will accommodate vessels ranging from twenty-five to one hundred and ten feet in length. Areas 1 and 2 are not proposed to be used for mooring as a part of this project and Area 5 is a vessel exclusion area due to the depths and resources that are present. Only Area 5 contains sovereign submerged lands owned by the Board. Sheet 1 of 7 of the Permit drawings shows that the southeast border of the City- owned submerged lands run through Area 5, such that only eighteen regulatory buoys will be installed on sovereign submerged lands. If Areas 3 and 4 reach capacity and future mooring is proposed in Area 6, then a new application must be submitted to the Department for permitting of Phase II. The Permit does not authorize mooring in Area 6. The project is located in Biscayne Bay, within the Biscayne Bay-Card Sound Aquatic Preserve, an Outstanding Florida Water, adjacent to Dinner Key Marina. The entire mooring field will be managed by the City in accordance with the management plan attached to the Permit. That plan has been received in evidence as Department Exhibit 21. The project consists of installing seventy regulatory buoys to identify the mooring field as well as vessel exclusion areas as shown in sheet 7 of 7, and installing two hundred twenty-five mooring buoys to be used by all of the vessels within the managed mooring field. Both the mooring buoys as well as the regulatory buoys will be installed using auger anchors as shown in sheet 7 of 7 of the permit drawings. Eighteen regulatory buoys will be installed on sovereign submerged lands as part of the vessel exclusion area (Area 5). Creation of the vessel exclusion area presents many benefits to seagrass and animal resources in this area. The shallow depth throughout Area 5 increases the potential for adverse impacts from propeller scarring, groundings, ad hoc anchoring systems, and derelict and abandoned vessels. Petitioner's Challenge The only disputed issue remaining for adjudication is whether the proposed project meets the public interest test in Florida Administrative Code Rule 18-18.006(3)(b)(ii). That rule is a part of Florida Administrative Code Rule Chapter 18-18, which governs the sale, lease, transfer, or use of Board-owned submerged lands within the Biscayne Bay Aquatic Preserve. The rule in question requires that in order to use these sovereign submerged lands, the City must demonstrate that the use, and the project planned in conjunction with the use, are in the public interest. The foregoing rule applies in this case because a portion of Area 5, the vessel exclusion area, is sovereign submerged lands on which eighteen regulatory buoys will be installed. Based upon the evidence found above, the record supports a finding that the use of those lands, and the project planned by the City with this use, are in the public interest and satisfy the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Consolidated Environmental Resource Permit and Letter of Consent to Use Sovereign Submerged Lands No. 0217762-002-EI to the City of Miami for the Dinner Key Managed Mooring Field in the Biscayne Bay Aquatic Preserve. DONE AND ENTERED this 26th day of July, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2007. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Andrew Marshall Post Office Box 330561 Miami, Florida 33233-0561 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kevin R. Jones, Esquire City Attorney's Office 444 Southwest Second Avenue Suite 945 Miami, Florida 33130-1910 Gregory M. Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 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
The Issue Whether proposed rules promulgated by the Florida Marine Fisheries Commission are an invalid exercise of delegated legislative authority.
Findings Of Fact The Florida Marine Fisheries Commission (MFC) has proposed rules requiring use of bycatch reduction devices (BRD.) The proposed rules are applicable where trawling for shrimp is permitted in specified Florida waters within the Gulf of Mexico. The notice of proposed rulemaking was published in Volume 23, Number 30, Florida Administrative Weekly, July 25, 1997. The Petitioners have challenged the proposed rules, specifically the provisions prohibiting possession of an otter trawl (a type of trawling net) that is rigged for fishing aboard any vessel without having a required BRD installed. All parties have standing to participate in this proceeding. The federal government requires BRDs in the Florida waters not impacted by the proposed rules at issue in this proceeding. The federal rules are intended to protect red snapper in the Gulf and weakfish and Spanish mackerel in the Atlantic Ocean. The MFC rules are intended to offer broader protection than federal rules, and are intended to protect the Gulf ecosystem rather than specific species of organisms. Shrimp trawls operating in the Gulf of Mexico harvest approximately 2.4 pounds of non-shrimp species for every pound of shrimp harvested. The MFC goal is to reduce the level of bycatch harvested by 50 percent. The proposed rules do not cover the “Big Bend grass beds” where trawling for shrimp is already prohibited. The proposed rules do not cover Florida’s northeast coast where other BRD rules are in effect. The Petitioners challenge the same provision in three separate rules. Proposed Rule 46-31.010(4), Florida Administrative Code, provides: In the Northwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.012(4), Florida Administrative Code, provides: In the Southwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.013(2), Florida Administrative Code, provides: In all waters of the Southeast Region outside nearshore and inshore Florida waters, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) On a shrimping boat, “otter trawl” nets are suspended from the ends of “outriggers” attached to the sides of the boat. When in use, the nets are dropped from the outriggers into the water. Once in the water, the nets are dragged along behind the boat, collecting shrimp and other marine species. The non-shrimp marine species collected are referred to as the “bycatch.” The phrase “rigged for fishing” means that the nets are shackled to the outriggers and are in a condition ready to fish, but are not yet in the water or being dragged along the bottom of the water. Nets attached to the outriggers of a shrimping boat and ready to be dropped into the water are rigged for fishing. Nets lying on the deck of the boat which are not attached to the outriggers are not rigged for fishing. It takes no more than a few minutes to attach the nets to the outriggers. The phrase being challenged in the proposed rules essentially prohibits a shrimp boat operator from suspending the nets above the water prior to dropping the nets into the water without having the BRD installed in the nets. Although there is no credible evidence indicating the reason shrimp boats leave the docks with nets in a position rigged for fishing, many apparently do so. There is no credible evidence suggesting any reason nets would be suspended from the outriggers other than in anticipation of initiation of shrimp harvest activity. There is no credible evidence that any impact would result from requiring that non-BRD equipped nets remain unrigged for fishing until outside of waters affected by the proposed rule. Use of the BRDs results in a substantial reduction of bycatch. There is no evidence that use of the BRDs results in any reduction in shrimp harvest. The evidence establishes that the reduction in bycatch will contribute towards the preservation of renewable marine fishery resources and will benefit the continuing health of the resources. There is no evidence that the proposed rules are unfair or inequitable to any persons including shrimp boat operators. The Petitioners assert that because the penalty for violations of the rules may eventually result in incarceration, the cited phrase creates a criminal presumption that a shrimp boat operator with non-BRD equipped nets is presumed to be fishing without a BRD. The evidence fails to support the assertion. There is no presumption being created by the proposed rule. The challenged rules are gear specifications for shrimp trawls, and are clearly within the realm of the MFC's rulemaking authority. The cited phrase does not prohibit the mere possession of a net without a BRD installed. The cited phrase prohibits suspension of a net from an outrigger without having a BRD installed in the net. There is no reason, other than in anticipation of immediately dropping the net into the water, that a trawl net must be suspended from an outrigger. The Petitioners assert that the rule would impact shrimp boat operators who are passing through Florida waters traveling to waters outside the areas impacted by the proposed rules. There is no evidence that the proposed rules would interfere with fishing operations. In the example of boat operators fishing outside Florida waters and using non-BRD equipped nets, compliance with the rule requires only that the nets remain unrigged for fishing while passing through Florida waters. The Petitioners assert that there are instances due to emergency, weather or otherwise, that may result in a shrimp boat operator working waters outside those covered by the proposed rules, raising non-BRD equipped nets and moving through into Florida jurisdictional waters. In such an event, the Petitioners assert that an operator could be subject to application of the rule even though the non-BRD equipped nets, still rigged for fishing, were not used in Florida waters. The Florida Marine Patrol will be responsible for enforcement of the proposed rules. Obviously, a Marine Patrol officer’s judgment will be required to determine the existence of an emergency and whether any official action is appropriate. A shrimp boat officer cited for violation of the proposed rules is entitled to challenge the application of the rule.
Findings Of Fact Petitioner is the holder of Oyster Leases NO. 892 and 893. The annual rent for both leases was paid on December 16, 1988, and both leases are currently in full force and effect. No formal action has been brought by DNR to revoke these oyster leases. In July 1988, Petitioner filed a valid and adequate application for a special activity license to use mechanical harvesting implements on these leases. Petitioner furnished a bond payable to the Governor of the State of Florida and approved by DNR in the sum of $3,000.00 at the time he filed his special activity license application.
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 Harley L. Vause for a special activity license to use mechanical harvesting implements on Oyster Leases NO. 892 and 893. DONE and ENTERED this 13th day of March, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 13th day of March, 1989. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Lynn C. Higby Attorney at Law Bryant, Higby & Williams Post Office Drawer 860 Panama City, FL 32402-0860 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5988 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Harley L. Vause Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3) and 2(4). Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources The only finding of fact proposed by DNR is rejected as being irrelevant and unsupported by the competent evidence. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Lynn C. Higby Attorney at Law Bryant, Higby & Williams Post Office Drawer 860 Panama City, FL 32402-0860 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I hereby make the following findings of fact: On February 27, 1984, the premises operated by Tony's Sea, Inc., were inspected by two inspectors of the Department of Agriculture and Consumer Services. On that date the inspectors observed, among other things, four boxes of frozen lobster tails which had been processed and packed by Tony's Sea, Inc. The four boxes of frozen lobster tails which came to the attention of the inspectors were sealed and labeled. The label on each box stated that the net weight of the contents was ten pounds. None of the labels contained the name of a dealer or responsible firm, nor did the name of a dealer or responsible firm appear elsewhere on the boxes. The inspectors removed the ice from the frozen lobster tails in each of the four subject boxes and weighed the lobster tails without ice. The net weight of the frozen lobster tails was approximately six pounds per box. The Administrative Complaint served on the Respondent contained the following opening paragraph: You are hereby notified that the Florida Department of Agriculture and Consumer Services intends to take disciplinary sanction authorized by Section 500.121, F.S., and seeks to impose an administrative fine of $1,000 for violation of certain laws of the state applicable to food processors and certain rules of the department.
Recommendation On the basis of all of the foregoing it is recommended that the Department of Agriculture and Consumer Services enter a Final Order ordering the Respondent, Tony's Sea, Inc., to pay an administrative fine in the amount of $1,000.00, such fine to be paid within 15 days of the issuance of the Final Order. DONE and ORDERED this 10th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Mr. Antonio Martinez-Malo President, Tony's Sea, Inc., 7716 N.W. 76 Avenue Medley, Florida 33166 Frank A. Graham, Jr., Esquire Resident Counsel Department of Agriculture and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301 Honorable Doyle A. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
