The Issue Whether Respondent's wholesale and retail dealer's licenses should be revoked or otherwise disciplined for two convictions of Possession of Undersized Crawfish Tails, as alleged.
Findings Of Fact I. MGB Corporation, a corporation organized under the laws of Florida, owns and operates a seafood dealership known as Gulfstream Seafood at 5300 Georgia Avenue West Palm Beach, Florida. It holds Retail Seafood Dealer's License No. RC-W3246 and wholesale Seafood Dealer's License No. WD2239 issued by DNR for the 1985-86 license year. (DNR Ex. 1,2) George M. Michael is the president and chief executive officer of MGB. In connection with MGB's application for issuance or renewal of its current seafood dealer's licenses, Mr. Michael executed a required affidavit from the individual responsible for the day-to-day management of the business. By the terms of the affidavit, he pledged himself "to the faithful observance of all . . . laws . . . regulating the . . . possession of fish, seafood, and other saltwater products (DNR Ex.2) On October 21, 1985, following a plea of no contest, the County Court of Palm Beach County, Florida, adjudicated MGB d/b/a Gulfstream Seafood guilty of two counts of Possession of Undersized Crawfish Tails, a violation of Section 370.14, Florida Statutes. MGB was fined $500, in addition to a $20 surcharge and a $25 fine for contempt of court. (DNR Ex.3; Tr.21-22) II. One of these counts alleged that on March 29, 1985, MGB d/b/a Gulfstream Seafood, unlawfully possessed crawfish tails which measured less than five and a half inches lengthwise from the point of separation along the center of the entire tail until the rearmost extremity is reached, contrary to Section 370.14(2), Florida Statutes. Facts Underlying this Violation. On March 29, 1985, Officer Francis Crowley accompanied by another officer of the Florida Marine Patrol entered the premises of Gulfstream Seafood and observed undersized crawfish on pallets in the production area. They were not refrigerated and had not yet been processed. Mr. Michael, who was present, tried to divert Officer Crowley's attention while another individual attempted to wheel the crawfish out the back door. The two officers separated the legal-sized crawfish from the undersized crawfish and weighed each category. There were 254 pounds of undersized crawfish, i.e., crawfish with tails measuring less than five and a half inches lengthwise from the point of separation along the center of the entire tail to the foremost extremity. The number of undersized crawfish involved is unknown. Officer Crowley issued a citation to Mr. Micheal and donated the undersized crawfish to a children's home in Fort Pierce. III. The other count of which MGB was found guilty alleged that on May 17, 1985, MGB again unlawfully possessed 3undersized crawfish in violation of Section 370.14(2), Florida Statutes. The circumstances surrounding this violation including the weight or number of undersized crawfish involved, have not been shown. IV. MGB has 165 employees, a payroll of $127,000 a month, and processes between 10,000 and 15,000 crawfish per month. A suspension of its seafood dealers' license for a month or more would adversely impact its operations. Customers would most likely obtain seafood from other dealers and it would be difficult for MGB to recoup the lost business.
Recommendation Based on the foregoing; it is RECOMMENDED: That the charges, and administrative complaint filed against MGB; be DISMISSED. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1986.
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.
Findings Of Fact Petitioner is the owner and developer of real property in Brevard County, Florida. Petitioner applied to DER for a development permit to construct three wooden docks and retain an existing wooden dock on its property. The docks were designed to provide a total of 58 mooring slips. On March 13, 1983, the Department issued an Intent to Deny the requested permit, On March 10, 1983, Petitioner filed a petition for a formal 120.57(1), Florida Statutes, hearing on DER's intent to deny the permit application. DER's Intent to Deny asserted DER jurisdiction under Chapters 403 and 253, Florida Statutes and Rule 17-4.28 and 17- 4.29, Florida Administrative Code. DER contends that the construction of the proposed docks was to be conducted in areas within DER jurisdiction under Rules 17-4.28(2) and 17- 4.29(1). Additionally, DER asserted that the proposed project was located in Class II waters approved for shellfish harvesting, and that dredging in those areas was prohibited by Rule 17-4.28(8)(a), Florida Administrative Code, which provides, in pertinent part, as follows: The Department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits for certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. . . . The parties have stipulated, and the record otherwise established, that Petitioner is substantially affected by Rule 17-4.28(8)(a), which is challenged in this proceeding, by virtue of the fact that DER asserts that rule as a grounds for denying the requested permit. Both Petitioner and Respondent have submitted proposed findings of fact concerning whether the driving of pilings for the construction of the dock constitutes "dredging", so as to invoke the prohibition against such activities contained in Rule 17-4.28(8)(a). It is specifically determined that these facts are irrelevant to the issue to be determined in this cause, as will more fully hereinafter appear.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the Administrative Complaint which demands relief against Respondent's Monroe County license (WD 000938), and, if so, what penalty should be imposed. The secondary issue is whether Respondent's Dade County license (WD 000008) should be denied renewal. A companion case, Didi's Seafood Corporation Department of Natural Resources (Case No. 86-4512), addresses the third issue of whether Didi's Monroe license is entitled to renewal. The Recommended Order in that case is being issued concurrent with this Order.
Findings Of Fact Based upon the Prehearing Stipulation, I make the following findings of fact: Roland Suarez was Vice-President of Respondent when the described offenses were committed. Ofelia Suarez was Treasurer of Respondent when the described offenses were committed. Respondent held, and applied for renewal of, WD license nos. 000008 (Dade County) and WD 000988 (Monroe County). The described Federal offenses were committed between November 30, 1982 and December 14, 1982. The described offenses, as pled guilty to, were violations of the Federal Lacy Act [16 U.S.C. s.3372(a)(2)(A) and s.3373(d)(1)(B) and (d)(2)]. The Federal Lacy Act violations were predicated upon violation of Section 370.14(2)(a)(1), Florida Statutes (1983); which prohibits possession of undersized lobster tails. The charges against Respondent and Rolando Suarez involved knowingly transporting with intent to sell, offer for sale, and sale of approximately 400 pounds of undersized lobster tails. Four hundred twenty pounds of undersized lobster tails constitutes more than 100 individual tails. Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following additional Findings of Fact: On January 9, 1986, Didi's Seafood Corporation pled guilty to a crime constituting a violation of Section 370.14(2)(a)(1), Florida Statutes and Title 16, U.S. Code Sections 3372(a)(2)(A) and 3373(d)(1)(B). Respondent was then convicted as charged for the offense of knowingly transporting with the intent to sell, offering for sale, and knowingly selling, in interstate commerce approximately 400 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of the law. Respondent was ordered to pay a fine of $1000.00. On January 9, 1986, Rolando Suarez pled guilty to a crime constituting a violation of Title 16, USC, 3372(A) and 3373(d)(2). Rolando Suarez was then convicted of the offense of transporting with intent to sell and offering for sale undersized spiny lobster tails. Roland Suarez was ordered to pay a fine of $1000.00. Didi's Seafood Corporation has been in business since 1973. Each year prior to January, 1986, Respondent had successfully renewed its wholesale dealer's licenses for Dade County (WD 000008) and Monroe County (WD 000988). The licenses did not run on the calendar year, but expired on June 30 of each year. The Monroe license (WD 000988) therefore expired on June 30, 1986. The Dade license (WD 000008) was denied renewal on April 7, 1986. On June 29, 1986, Ernesto Pichardo, the plant manager for Respondent's Monroe County business, executed an affidavit as to the wholesale dealer's law abiding reputation and attempted to renew the Monroe license. The renewal was denied based upon the conviction described in Finding of Fact paragraph 8. Any criminal acts which may have occurred took place in connection with the Dade County license (WD 000008). There is no evidence to suggest that either Ernesto Pichardo or any other person connected with Respondent's Monroe County business has been arrested or convicted of any crime. On January 13, 1986, Roland Suarez executed an affidavit as to wholesale dealer's law abiding reputation. On January 27, 1986, Roland Suarez executed another affidavit as to wholesale dealer's law-abiding reputation. Both of these affidavits were in connection with the Dade County license and required Roland Suarez to answer the following question: Excluding traffic offenses, I have either been arrested for or convicted of the following offenses. List each offense and the year arrested or convicted. If you have never been arrested or convicted, write "None." In both cases the answer given was "none." Roland Suarez' affidavit was false since he had been convicted of the charges described in Finding of Fact, paragraph 9. On June 25, 1984, Roland Suarez, Jr., was issued a citation which alleged a violation of Section 370.07(1) Florida Statutes, for operating as a seafood dealer without a wholesale license. This citation was issued in Dade County, Florida. On April 2, 1984, Ofelia Dopica Suarez received a citation alleging a violation of Section 370.07(1) Florida Statutes for operating as a seafood dealer without a wholesale license. Roland Suarez, Jr. and Didi's Seafood Corporation pled guilty to the federal charges described in Finding of Fact paragraphs 8 and 9 to avoid the time and cost of continuing the defense of the violations. Mr. Suarez denied knowingly receiving undersized lobster tails. The lobster tails were from Nicaragua and were in transit when seized. Because about 10,000 pounds of lobster tails were seized and mixed, frozen, it was impossible to determine if any of the tails seized at Didi's plant were undersized. Respondent received payment for a portion of the alleged undersized lobsters tails since some percentage, still unknown to the parties, was legal. The exact number, if any, of undersized lobsters tails was not determined. The federal identification number for Respondent's Monroe County business and Dade County business is the same, ID #59-1465901.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Lawn it is RECOMMENDED: That the Department of Natural Resources enter a Final Order finding Respondent guilty of the violation alleged in Count I of the Administrative Complaint, but granting the renewal of its licenses and placing them on probation for a period of two years. DONE and ORDERED this 1st day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1470 Rulings of the Proposed Findings of Fact submitted by Respondent. 1. Accepted in Findings of Fact paragraphs 1-8. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Roberts Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues are whether Respondent committed food service violations, and, if so, whether disciplinary action should be taken. For the reasons set forth below, Respondent did commit violations and should be subject to the fine described herein.
Findings Of Fact At all times material to this matter, Respondent was licensed as a public food establishment in the State of Florida by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department). Respondent's business address is 8084 North Davis Highway, No. A1, Pensacola, Florida. Petitioner's witness, Inspector Crowley, is employed by the Department as a senior sanitation safety specialist in Panama City Beach, Florida. He has worked for the Department for 12 years and has prior experience in the United States Air Force for 26 years, during which he also preformed public health inspections at food and lodging facilities. Inspector Crowley engages in continuing education on a regular basis and performs approximately 800 inspections a year. "Critical violations" are those that are likely to result in food-borne illness or environmental degradation. "Non-critical violations" are minor issues that are not classified as critical violations. Inspection reports are electronically prepared on a Personal Data Assistant by the inspector. On July 14, 2009, Inspector Crowley performed a routine food service inspection of Respondent at its location on North Davis Highway in Pensacola. During the inspection, Inspector Crowley prepared and signed an inspection report setting forth the violations he encountered during the inspection. On that same date, Inspector Crowley notified Respondent about the violations. Respondent's owner signed the inspection report. Also, Inspector Crowley made the owner aware that each violation noted during the inspection must be corrected by the next unannounced inspection. On December 14, 2009, Inspector Crowley performed a routine food service inspection of Respondent. During the inspection, Inspector Crowley prepared and signed an inspection report indicating that some of the violations noted on the July 14, 2009, inspection report had not been corrected. On that date, Inspector Crowley notified Respondent of the violations and the fact that he was recommending an administrative complaint. Respondent's owner signed the inspection report. The most serious violation was observed at both the July 14 and December 14 inspections. Inspector Crowley observed the handwash sink being used for purposes other than handwashing. This is a critical violation because handwashing is the best way to prevent food-borne illness within a public food service establishment. Mr. Wong testified that during both inspections a brush used for cleaning the sink had been left inside the handwash sink. Inspector Crowley observed the next most serious violation during the December 14 inspection, misrepresentation of food products. Imitation crab was advertised as genuine crab meat, and escolar was advertised as white tuna. This constitutes a critical violation because patrons could unknowingly ingest foods causing an allergic reaction or illness. The misrepresentation of food items had been corrected at the time of hearing. Mr. Wong admitted that the escolar labeling had been incorrect, but that the crab labeling was only a handwritten note to the chefs in the area where they work both with soft-shelled crabs (real crab) and imitation crab used in sushi products. The patrons are not served imitation crab when the dish calls for real crab or real crab when the dish calls for imitation crab. Regardless of the corrective actions taken, the Department's policy is to immediately issue an administrative complaint when a misrepresentation violation is noted. The next most serious violation noted by Inspector Crowley occurred during both the July 14 and December 14 inspections. He observed the use of a grooved and pitted cutting board that was no longer cleanable. This constitutes a violation because dirt and food remain in the grooves even after the cutting board has been washed, allowing bacteria to grow, which can lead to future contamination of food products. Respondent was unable to remove the cutting board after the July 14 inspection because it was part of the counter where food preparation occurs. Mr. Wong testified that it is used only as a table since the July 14 inspection, not as a cutting board. He admitted that bacteria on the board could be transferred to the underside of food-bearing plates placed on it. The next most serious violation was observed by Inspector Crowley at both the July 14 and December 14 inspections. He observed a buildup of grease on the surface of equipment that does not come into contact with food. This constitutes a violation of cleanliness standards which can ultimately lead to food-borne illness. Inattention while cleaning led to the buildup of grease on equipment surfaces.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty in the amount of $500 for the critical violation concerning the mislabeling of the escolar; $500 for the critical violation of using the handwashing sink for purposes other than handwashing; $150 for the non-critical violation of continuing to use the grooved and pitted cutting board; and $150 for the non-critical violation of allowing grease to accumulate on non- food contact surfaces. The total fine in the amount of $1,300 shall be paid to the Division of Hotels and Restaurants within 30 days of the entry of its final order. DONE AND ENTERED this 18th day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of January, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Christopher Wong Teriyaki Cafe Sushi and Grill 8084 North Davis Highway, Suite A1 Pensacola, Florida 32514 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the amendments respondent proposes to Rules 46- 22.001, 46-22.002 and 46-22.003, Florida Administrative Code, and the new rules it proposes, 46- through 46-22.007, or any of them, constitute an invalid exercise of delegated legislative authority, within the meaning of Section 120.54(4), Florida Statutes, (1985)?
Findings Of Fact Comprised largely of commercial fishermen, the petitioners are organizations which represent commercial fishing interests, including not only commercial fishermen, but also fish houses, fish processors, and at least one restaurateur. The parties have stipulated that petitioners have standing to bring this rule challenge. The intervenor, Florida Conservation Association (FCA), is an organization to which recreational fishermen and "a number of people ... involved in the sports fishing industry" (T VIII. 7), including fishing guides, marina owners, bait and tackle dealers, tackle manufacturers, and "motels that ... cater to a fishing clientele," (T.VIII. 8) belong. According to the intervenor's executive director, "one of the primary goals of the organization ... has been to work towards gamefish status for redfish, which would be basically what we have been trying to do with the rule, for game fish status." (T.VIII 6.) Respondent Marine Fisheries Commission (MFC) is charged by statute with regulating fishing in the salt waters of the state, which extend nine nautical miles from shore. (T.I.29) The rules and rule amendments the MFC has proposed for redfish were published on July 11, 1986, in Volume 12, No. 28 of the Florida Administrative Weekly on pages 2595, 2596 and 2597. They read, as follows: * 46-22.001 Purpose, Intent and Repeal of Other Laws. The purpose and intent of this chapter are to protect, manage, conserve and replenish Florida's depleted red drum (redfish) resource, species <<Sciaenops ocellata,>> which has suffered extreme declines in abundance in recent years and which is now overfished throughout the state. This chapter will <<implement measures designed to reduce fishing pressure on this species; including>> [[initially impose]] minimum and maximum size limits, <<bag limits, closed season, and prohibition of sale,>> for [[harvestable]] redfish <<harvested from state waters,>> [[to provide interim protection for the resource while a comprehensive management scheme is being formulated for later promulgation in this chapter.]] Accordingly, it is the intent of this chapter to repeal and replace those portions of section 370.11(2)(a)4., Florida Statutes dealing with redfish. This chapter is not intended, and shall not be construed, to repeal any other portion of section 370.11(2)(a)4., Florida Statutes; any other subdivision of section 370.11, Florida Statutes; or any other general or local law directly or indirectly relating to or providing protection for the redfish resource. * * * 46-22.002 Definitions "Harvest" means the catching or taking of a fish by any means whatsoever, followed by a reduction of such fish to possession. <<"Harvest" also includes the intentional killing of a fish, whether or not it is subsequently reduced to possession.>> Fish that are caught but immediately returned to the water free, alive and unharmed are not harvested. In addition, temporary possession of a fish for the purpose of measuring it to determine compliance with the minimum or maximum size requirements of this chapter shall not constitute harvesting such fish, provided that it is measured immediately after taking, and immediately returned to the water free, alive and unharmed if undersize or oversize. <<"Land," when used in connection with the harvest of a fish, means the physical act of bringing the harvested fish ashore.>> (3)(2) "Person" means any natural person, firm, entity or corporation. (4)(3) "Red drum" or "redfish" means any fish of the species <<Sciaenops Ocellata,>> or any part thereof. <<"Native redfish" means any redfish harvested from the territorial waters of the State of Florida.>> (5)(4) "Total length" means the length of a fish as measured from the tip of the snout to the tip of the tail. (6) <<"Vessel" means and includes every description of water craft used or capable of being used as a means of transportation on water, including nondisplacement craft and any aircraft designed to maneuver on water.>> 46-22.003 Size Limits. No person shall harvest in or from the [[following designated]] waters of the State of Florida at any time, or unnecessarily destroy, any redfish of total length less than <<18 inches.>> [[that set forth as follows:]] [[(a) In the Northwest region as hereinafter defined, redfish of total length less than 16 inches. In the remainder of the state, redfish of total length less than 18 inches.]] [[For purposes of this subsection, the tern "Northwest region" shall mean and include all state waters along the Gulf of Mexico north and west of a straight line drawn from Bowlegs Point in Dixie County, southwesterly through marker 16, and continuing to the outer limit of state waters.]] [[No person shall harvest in or from the waters of the state of Florida at any time, or unnecessarily destroy, any redfish of total length greater than 32 inches, except that one (1) redfish larger than this maximum size limit may be harvested per person per day. No person shall possess at any time more than one redfish larger than 32 inches in total length, harvested from state waters.]] <<(2)(a) No person shall harvest in or from the waters of the State of Florida at any time, or unnecessarily destroy, more than one (1) redfish per day of total length greater than 32 inches.>> (b) <<No person shall possess more than one (1) redfish of total length greater than 32 inches, harvested from waters of the State of Florida.>> [[(3) It is unlawful for any person to possess, transport, buy, sell, exchange or attempt to buy, sell or exchange any redfish harvested in violation of this chapter.]] * * * <<46-22.004 Prohibition on Sale and Commercial Harvest of Native Redfish. It is unlawful for any person to: Buy, sell exchange or attempt to buy, sell or exchange any native redfish. Harvest, possess or transport, for purposes of sale or with intent to sell, any native redfish. The prohibitions contained in subsection (1) of this section do not apply to non-native redfish that have entered the State of Florida in interstate commerce. However, the burden shall be upon the person possessing such redfish for sale or exchange to show, by appropriate receipt(s), bill(s) of sale, or bill(s) of lading, that such redfish originated from a point outside the waters of the State of Florida, and entered the state in interstate commerce. It is unlawful for any wholesale or retail seafood dealer or restaurant to possess, buy, sell, or store any native redfish, or permit any native redfish to be possessed, bought, sold or stored on, in, or about the premises or vehicles where such wholesale or retail seafood business or restaurant is carried on or conducted; provided, however, that native red fish which have been lawfully harvested may be kept on the premises of a restaurant for the limited purpose of preparing such red fish for consumption by the person who harvested them, so long as such redfish are packaged or on strings with tags bearing the name and address of the owner clearly written thereon. When any person buys, sells, possesses or transports non-native redfish under circumstances requiring documentation under this section, failure to maintain such documentation, or to promptly produce same at the request of any duly authorized law enforcement or conservation officer, shall constitute a separate offense under this chapter and shall also constitute prima facie evidence that such red fish were harvested from Florida waters and are being transported and/or possessed for purposes of sale.>> <<46-22.005 Season, Bag and Possession Limits. (1) During the months of March and April, the harvest of redfish in or from state waters or possession of native redfish is prohibited. Possession of redfish by any person aboard a vessel fishing in state waters during such months constitutes prima facie evidence that such redfish were harvested out-of-season in state waters. (2)(a) Except as provided in subsection (1), all persons are subject to a bag limit of five (5) native redfish per person, per day, and a possession limit of five (5) native redfish per person. Only one (1) native red fish larger than 32 inches total length may be harvested per person, per day, and no more than one (1) such redfish may be possessed by any person at any time. Possession of redfish in excess of the applicable bag or possession limit by any person aboard a vessel fishing in state waters constitutes prima facie evidence that such red fish were harvested from state waters. (3) Nothing in this section shall be construed to permit the harvest of native red fish from any area during any time, or the use of any gear where same is otherwise prohibited by law.>> * * * <<46-22.006 Other Prohibitions. The harvest of any redfish in or from state waters by or with the use of any treble hook in conjunction with live or dead natural bait is prohibited. Gigging, spearing or snagging (snatch hooking) of redfish in or from state waters is prohibited. It is unlawful for any person to possess, transport, buy, sell, exchange or attempt to buy, sell or exchange any redfish harvested in violation of this chapter. When any provision of this chapter is violated by a person aboard a vessel, the operator of that vessel, if different from such person, shall be deemed to have assisted and participated in the violation and such assistance and participation shall constitute a separate offense under this chapter. All redfish harvested from Florida waters shall be landed in a whole condition. The possession, while on state waters, of redfish that have been deheaded, sliced, divided, filleted, ground, skinned, scaled or deboned is prohibited. Mere evisceration or "gutting" of redfish, or mere removal of gills from redfish, before landing is not prohibited. Preparation of red fish for immediate consumption on board the vessel from which the fish were caught is not prohibited.>> <<46-22.007 Severability. If any provision of this rule chapter, or its application to any person or circumstances is held invalid; the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this rule chapter are declared severable.>> Petitioners' Exhibit No. 1 (Added language underscored, de- leted language struck through) * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The proposed rules and rule amendments under challenge are designed to replace the initial redfish rules, which took effect September 12, 1985, and remain in force. Since before the current rules' adoption, statutory provisions have imposed a statewide 12-inch minimum size limit for redfish, Section 370.11(2)(a)4, Florida Statutes (1985), and forbidden the use of purse seines. Section 370.08(3), Florida Statutes (1985). Youth and Age The redfish, also known as red drum and, to ichthyologists, as Sciaenops ocellatus, has a life span of 25 to 35 years. The adult redfish or "bull reds" swim offshore in deep water ordinarily, but not always, in schools. They are commonly found with schools of blue runner and little tunny. Respondent's Exhibit No. 29, 2-1. Schools of adult redfish are not found in inshore waters. But adults do approach the mouths of estuaries to spawn in the fall, mostly in September. Eggs borne by incoming tides and newly hatched, microscopic redfish larvae swimming inland make their way through the passes and well up into the bays and bayous along Florida's coasts, often all the way into fresh water, where rivers empty into the estuaries. By April of the following year, some redfish spawned in September have attained a length of 12 inches. By the following September, all redfish spawned a year earlier have reached 12 inches in length. A redfish gains one to five pounds a year. (T.I.31) When they are 18 to 26 inches long, they weigh from 3 to 6 pounds. On average, an 18 inch redfish is about a year and a half old. Juvenile redfish also swim in schools, often with sea trout, mullet and catfish. Once a redfish reaches three or four pounds, man is one of the few creatures in the estuaries big enough to eat it. (T. I. 45) But scientists put the mortality rate for juvenile redfish at 30 percent. (T.58) Only when they are about 4 1/2 years old do redfish leave the juvenile population's estuarine habitat for the blue waters the adult population inhabits. On average they then weigh 12 to 14 pounds and have obtained a length of 29 to 30 inches. Tagging studies and age frequency data suggest that as few as two percent of redfish recruits, or perhaps only a tenth of that number, survive long enough to escape the estuary. (T.I.63) For at least the last ten years, the escapement rate has been on this order of magnitude, and the escapement rate may have been dropping during this period. (T.I.67) The size distribution of redfish taken offshore reflects significantly lower numbers of spawners escaping during the last 20-some years than previously. Spawning redfish tend to return to the point on the coast where they themselves were spawned, but this is by no means a hard and fast rule: "Drift", also called diffusion or filtration, is known to occur. Redfish range throughout the Gulf of Mexico and are found in the Atlantic Ocean as far north as New Jersey. Because redfish caught offshore are taken with purse seines, they cannot legally be landed in Florida. They are mostly brought ashore in Louisiana and mostly caught in that part of the Gulf. Juvenile redfish in the Florida Keys are not believed to swim back and forth between the Gulf and the Atlantic, but adult redfish may. Blackened Redfish Commercial fishing offshore requires a six-figure investment in boat and equipment and a crew of several men. Until relatively recently, the big offshore operations largely ignored redfish, in favor of fish that could be sold at higher prices. But a dramatic increase in the demand for redfish has provided the economic incentive to make redfish an important target of the offshore fishery since 1982 or 1983. (The redfish's new-found popularity has been attributed to a New Orleans chef, who made famous a dish called "blackened redfish.") For whatever reason, massive catches of red fish offshore have depleted the adult stock of redfish in the last four or five years by as much as half, by some estimates. Before 1983, catches averaged less than 100,000 pounds a year. In the first half of 1986, some 7,000,000 pounds of redfish were taken in federal waters in the Gulf of Mexico. In other species, declines in the number of spawners have precipitated collapses of fisheries. The pattern has been, however, that declines in spawning populations have initially caused increases, rather than decreases, in juvenile populations. In the case of the yellow croaker, for example, the juvenile population initially increased ashe adult population dwindled. Only after 80 percent or more of the spawning stock was wiped out did a dramatic drop in the juvenile population ensue, spelling the end of the fishery. Whether the juvenile redfish stock has diminished in consequence of the decline of the spawner population is not clear. According to anecdotal evidence from Steinhatchee, the redfish catch there has increased over the last five years. The evidence did not establish whether fishermen's efforts to catch juvenile redfish at Steinhatchee or elsewhere in shallow state waters have changed significantly in recent years. Steinhatchee fishermen report large schools of two to four pound redfish beginning in October. Such reports are often unreliable evidence of general conditions, however. Trends in catch data are evidence of population trends, but they require careful interpretation. For one thing, experts generally believe the commercial catch to be under-reported and the recreational catch to be overestimated. (T.I.48-9) Constant catches in response to increasing effort may reflect a decline in population. Even increasing catches are not incompatible with population decline, considered in conjunction with other factors. The most recent catch data from Charlotte Harbor suggest smaller catches last year and the year before than in immediately prior years, during which the trend was generally up. But last year's statistics particularly are subject to revision and should be treated as preliminary only. To some extent, moreover, last year's change from a 12-inch to an 18-inch minimum size limit in Charlotte Harbor would account for any decrease in catch. The Charlotte Harbor redfish catch reported for 1984 is comparable to catches reported in the mid 1950s, 1964, and 1969, and exceeds the redfish catches reported in 1967, 1966, and certain earlier years. In short, the Charlotte Harbor data since 1983 neither confirm the previous upward trend nor establish any change in trend. Catch statistics with regard to the state as a whole are similarly inconclusive. In 1979, fishermen caught 3,177,590 pounds of redfish in Florida waiters. The total catch fell by more than a third to 1,917,005 pounds in 1980, and climbed to 3,160,122 pounds in 1981, about the level of two years before, even excluding recreational catches in January and February. In 1982, the total catch increased some two and a half times to 8,977,274 pounds, although MFC's executive director suspects that the recreational catch estimates, and, therefore, the totals for 1982 are inflated. The total redfish catch fell to 5,738,260 pounds in 1983, then rose to 6,375,250 pounds in 1984. Table 5, Petitioner's Exhibit No. 4. These catches do not include adult redfish in any significant numbers. (T. I.33) Fish Scaling MFC staff used a computer model developed by one of the commissioners, William W. Fox, Jr., to predict the effects regulatory changes would have on the escapement rate. This computer model, the generalized exploited population simulator (GXPOPS), has been used to predict the population dynamics of such diverse species as pandalic shrimp, with its "protandric hermaphroditic life history strategy," Petitioner's Exhibit No. 8, p. 38, and grouper, a "protogynic hermaphroditic population." Id. Redfish have distinct genders and differ from grouper and shrimp in other important attributes. Computer models are the only tools available for predicting population changes in response to regulatory changes, however; and, as far as the evidence showed, no other computer model has been more closely tailored to redfish or would be any more likely to predict the effects of regulatory changes on redfish populations more accurately than GXPOPS. Various GXPOPS generated tables are in evidence displaying data stated in millions of pounds of redfish, or in millions of fish, but nobody knows how many redfish are in the sea, so that a principal use of the numbers is as ratios; more than one scale has been used, and not all the tables are directly comparable. The MFC considered what biological or resource objective to set in terms of a proportional increase in the rate of escapement. The greater the fraction of juvenile recruits that survive long enough to escape the estuaries, the more rapidly the diminished spawning stock could be replenished offshore. Although there is some confusion on the point, it is not an unfair characterization to say that the MFC adopted a 50-fold increase in the escapement rate as its biological goal for redfish. If, as may be the case, the present escapement rate is only 0.2 percent, a 50-fold increase would only bring the escapement rate to half the level advocated by the Gulf of Mexico Fisheries Management Council. If, as may also be the case, a dramatic decrease in the number of recruits is either imminent or already in progress, even a 50-fold increase in the rate of escapement may not increase the number of spawners leaving the estuaries to the levels needed to preserve the redfishery. The evidence falls far short of showing that the MFC has set the escapement rate goal too high. On the contrary, the evidence established that the MFC set the escapement rate goal so low that attaining the goal will not guarantee the continued viability of the redfish fishery. If, as respondent's executive director testified, it is like driving toward a cliff in the fog, the wisest thing might be to stop the car till the fog clears. Means To An End Once a biological or resource goal has been set, the question becomes how to reach the goal. The MFC considered two options that the GXPOPS model predicted would meet its resource goal without closing down the commercial fishery: a five-month closed season together with a 17 inch minimum size limit; and a six-month closed season together with a 16-inch minimum size limit, There are numerous other approaches that would not involve conferring gamefish status on the redfish. Exhibit 1 to Dr. Fox's deposition; Dr. Austin's testimony. It may be that prohibiting redfishing for three, instead of only for two months would have permitted continuation of the commercial fishery. (T.XI. 52-4) In regulated fisheries throughout the world "there is a fairly clear hierarchy," (T.X. 72), among types of regulations. Minimum-size limits, then closed seasons, then catch restrictions (bag limits for recreational fishermen and quotas for commercial fishermen) are preferred, in that order, both because within each category the magnitude of change necessary to accomplish the same result increases in descending order; and because the complexity of assumptions that must be made to predict the effect of the regulation increases for each category in descending order. In the present case, for example, an increase of three inches in the minimum size limit applicable in peninsular territorial waters, from 18 to 21 inches, would be a less drastic change than leaving the minimum size limit at 18 inches and closing state waters to the taking of redfish for five months, although either change would accomplish approximately the same increase in the escapement rate. The only assumptions that underlie minimum size restrictions concern age size correlations and the "mortality that occurs when fish have to be released [because they are too small], which is relatively well known in this fishery." (T.X. 74) Predicting the effect of closed seasons requires more complex assumptions about seasonal abundance of the fish, the likelihood that fishermen's efforts A to catch the species will drift into the open season, and the chances that scofflaws will shorten the closed season de facto. In general, a prohibition against possession is more readily enforcible than a prohibition against disposition. It is a simple matter to count the number or to measure the size of fish a person has in his possession. Proving an intent to sell is more difficult. Other Management Plans On July 20, 1986, the United States Secretary of Commerce closed the federal conservation zone, which is the area more than nine and less than 200 nautical miles out from shore, to the taking of redfish. The Gulf of Mexico Fisheries Management Council (GMFMC) has recommended that the original ban, which was to have been effective only through September 23, 1986, be extended for another 90 days pending adoption of regulations prescribing a permanent ban. The GMFMC has also recommended that the Gulf states adopt regulations that would allow at least a fifth of redfish recruits to escape the estuaries. As of January 1984, Alabama prohibited the taking of red fish smaller than 14 inches and the taking of more than two redfish larger than 36 inches, placed geographic and temporal restrictions on the use of nets, limited recreational catch to 25 fish per day and imposed a possession limit of 50 on recreational fishermen. Respondent's Exhibit No. 29, 7-16 and 17. Alabama forbids the sale of native redfish. Alabama Administrative Code Section 220-3- 12. As of January 1984, Mississippi placed gear restrictions on fishermen taking redfish, prohibited the taking of redfish in certain places (including Redfish Bayou!) and of a size less than 14 inches, limited to two per day the number of redfish exceeding 30 inches in length, limited recreational catch to 10 redfish per day, imposed a possession limit of 30 redfish, closed state waters to commercial fishing from September 15th to November 15th, and authorized closing of the commercial fishery for the remainder of any year in which landing reports indicate 200,000 pounds have been taken. Respondent's Exhibit 29,7-14,15. As of January 1984, Louisiana closed certain areas to commercial fishing, disallowed the use of certain gear by commercial fishermen in certain other areas, and imposed gear restrictions on all fishermen. Recreational fishermen were limited to two redfish per day more than 36 inches in length but were subject to no minimum size limit. Recreational fishermen were entitled to take no more than 50 spotted sea trout and redfish combined per day, and subject to a 100-fish possession limit. Commercial fishermen were subject to a 16-inch minimum size limit but to no maximum size limit. Effective August 30, 1986, counsel advise, recreational fishermen are permitted to keep no more than two red fish greater than 30 inches in length and possession of redfish on board a vessel carrying a purse seine is illegal, citing Act. No. 613, 387, 611, 660. As of July 1984, commercial fishing for redfish had been outlawed in Texas, although licensed fish importers may, and do, sell redfish from Mexico and other states. No redfish less than 16 inches long or greater than 30 inches in length could be taken. The weekend use (1:00 p.m. Friday to 1:00 p.m. Sunday) of nets and trot lines was forbidden. As of September 4, 1986, the minimum size limit was 18 inches, and hook and line was the only lawful way to take redfish. Respondent's Exhibit No. 2, pp. 78A. At the time Texas dilettantized its redfishery, commercial fishermen were taking most of the catch. Fishermen must use either fishing poles or a single "sail line" which is a "special trotline[] with one end on shore, pier or jetty, and with the other end attached to a wind-powered device or sail and attended at all times." Respondent's Exhibit No. 29, 7-7. Florida Fisheries Fishing gear and methods in Charlotte Harbor, the principal site for commercial redfishing in Florida, have been constant for some time. Since the 1950s fishermen have used synthetic, instead of natural, fibers for their nets. In December, January and February, cold fronts in Charlotte Harbor seem to "concentrate the fish" into schools that experienced fishermen can spot. There is also a "night fishery" in the summer months, when redfish are taken at first light or "dawn pink." Petitioner's Exhibit No. 9, p 31. Ninety percent of the red fish commercial fishermen catch in Charlotte Harbor are taken with trammel nets, deployed from flat-bottomed shallow draft boats 19 to 24 feet long, with beams of five to eight feet. Although "pole skiffs" are sometimes used in very shallow water (four inches or less), the boats are mostly powered by outboard motors, mounted forward in wells. In Steinhatchee, the fishermen call these boats "bird dogs." Even the largest of them can be handled by a single fisherman, and can be built with materials that cost less than $3,000. None could be safely taken very far off shore. Undersize or other undesirable fish taken in trammel nets can be returned to the water alive. Ordinarily trammel nets consist of two outer "walls" of larger mesh flanking a central, finer mesh curtain or "bunt." When the fishermen encircle the fish, the three components of the net stand vertically in the water; the lines along the upper edges of each bunt are kept on the surface by floats, while the weighted lines along the bottom edges fall to the bottom. Fish swimming through an opening in one wall and into the small- mesh bunt push the finer netting through openings in the other wall, which creates a pouch or pocket in which the fish remains ensnared, when the fisherman hauls in the trammel net. Gill nets, which are also sometimes used, consist of a single swatch with mesh calibrated to stop fish of a certain size. Smaller fish swim through while larger fish are repelled. Fish taken by gill nets die from injuries they sustain when they become lodged in an opening in the net. In Steinhatchee almost half the red fish sold to the fish houses are caught by hook and line fishermen who have salt water products licenses, which can be bought for $25 and authorize the holder to sell his catch. In Charlotte Harbor, the "bucket brigade" as they are there called makes a contribution, although a less significant one, to the commercial catch. Hook and line fishermen have the advantage, an important one in the Steinhatchee fishery, of being able to take their boats up the river into fresh water. Eighty percent of redfish are caught from boats. Making a Payday Commercial fishermen take only an eighth to a quarter of the redfish caught in Florida state waters. As far as the evidence showed, not a single commercial fisherman in Florida depends exclusively on the sale of juvenile redfish for his income. Redfish comprise less than one percent of the food fin fish commercial fishermen catch in Florida waters. Almost all of the approximately 1800 commercial fishermen in Florida who catch redfish in state waters depend on the sale of other fish for most of their income. At a given time, certain species are available and certain species are not; and the prices they fetch vary. Mullet may bring as little as $.25 a pound while pompano can go for as much as $3.10 per pound. Commercial fishermen in Charlotte Harbor, whose annual income averages $11,334 after expenses, take mullet, sea trout, pompano, mackerel, jacks and sand bream as well as redfish. Not every fisherman targets each of these fish, but the overwhelming majority do seek mullet, which they call their "bread and butter" fish. Even for those fishermen whose equipment and skills enable them to pursue several species, the different species are not readily interchangeable. Rather than offering each load of fish they catch to the highest bidder, commercial fishermen like the individual petitioners who testified in the present case, ordinarily sell their catch to a single fish house, year after year. This practice offers some protection against seasonal market fluctuations. When roe mullet begin to run in the fall, demand for these and other fish exceeds the supply. But, during the summer months, the fish house operators will not buy mullet from fishermen with whom they have not already established a relationship. Because supply greatly exceeds demand in summertime and because freezer space is limited, fish house operators impose quotas even on fishermen with whom they have longstanding relationships. The fish houses do not sell all of the catch locally. About half leaves Florida. Exporters drive refrigerated semi-trailers to the fish houses where they buy fish by the 100-pound box for resale out of state. Georgia, their nearest destination, is several hundred miles from Charlotte Harbor, the principal site of redfishing in Florida waters. Except during the roe mullet run, these drivers call ahead to inquire of the fish houses how many "fancy fish" they have, "fancy fish" meaning redfish or sea trout. If a fish house has no redfish or sea trout on hand, the drivers may pass it by altogether or, at best, buy only a few boxes of mullet. Explicitly or otherwise, fish houses with redfish to sell may condition their sale on the buyer's taking, along with each box of redfish, four to ten boxes of mullet, depending on market conditions. Fishing For Fun According to those who have studied the question most carefully, including Dr. Holland, who testified at hearing, the attractiveness of recreational fishing trips depends less than might be expected on the hope of catching any fish at all, much less one of a particular species, when several are available. Very few recreational fishermen "limit the goals of their fishing experience to catching fish. The majority are more interested in perceiving freedom, escaping from responsibilities, and enjoying an outdoor natural environment." Petitioner's Exhibit No. 17, p. 137. Things like "being exposed to polluted surroundings... ruin[] a fishing trip more than not catching a fish. These conclusions are based on answers given by a sample of fishing association members who actively fish (an average of 31 days a year)." Petitioner's Exhibit No. 17, p. 136. As Mr. Raulerson explained with reference to tourists who fish in Florida's salt waters, the prospect of catching a fish may be less significant than the prospect of being out on the water in weather much warmer than what the tourist has left behind; and sighting a porpoise can be the principal benefit tourists derive from a fishing trip. For most recreational anglers, keeping a fish to eat is even less important than catching it. The only one of the intervenor's witnesses who testified on the point, Richard A. Shapley, a Tallahassee resident and an IBM employee who goes fishing every weekend, characterized himself as "more of a sports fisherman than a fish eater," (T.VII p. 16) and candidly admitted that he would not be particularly bothered by having to release all the redfish he caught. Currently, only 7.6 percent of sports fishermen catch more than five redfish per trip. Their catch amounts to eleven percent of the recreational catch, which has accounted for three quarters to seven eighths of all the redfish harvested in Florida waters. Almost five percent (4.975 percent) of marine sport fishermen in Florida caught (but did not necessarily seek) or sought (but did not necessarily catch) redfish, according to the most reliable statistics available for the period 1979 to 1984. An economist employed by the Sport Fishing Institute (SFI), whose "programs serve the long-term interests of the sport fishing industry, which provides the base of ... [SFI's] financial support," Respondent's Exhibit No. 1, p. 1, offered the opinion that up "to $121,416,000 in [1985] retail marine sport fishing expenditures can be attributed to redfish." Respondent's Exhibit No. 1, p. 11. Marine sport fishing is without doubt an important source of income for many Floridians, and retail marine sport fishing expenditures figure significantly in the state's economy, but the SFI estimate of retail expenditures attributable to redfish is a very substantial overstatement. To obtain the figure of $121,416,000, SFI's economist used a study that attributed to fishing not only all sums expended on fishing trips, but also all food and lodging expenditures for the whole of each day on which a tourist did any fishing; then assumed that catching or seeking redfish was the sole motivation for 4.975 percent of the fishing trips sportsmen made in Florida's salt waters. Neither of these assumptions bears up under scrutiny. Even on the assumption, which the evidence showed to be contrary to fact, that all fishing trips arise wholly from a desire to catch fish, the use of the 4.975 percent factor was not justified. At least for purposes of the present case, retail expenditures made by fishermen who had no desire or intention to catch redfish can hardly be said to be attributable to the availability of redfish. In addition, the number of recreational fishing trips taken by anglers in pursuit of redfish should, at the very least, be reduced to allow for trips on which the hope of taking other species was the dominant purpose. End of An Era If the proposed rule changes take effect, commercial fishing for redfish in Florida waters will come to an end. The effects on commercial fishermen would be overwhelmingly adverse. The one possible silver lining is that the loss of redfish as a commercial species would make mullet so much harder to sell that marginal commercial fishermen would look for other work, leaving more fish for the more skilled full-time commercial fishermen. Red fish sell for about eighty cents per pound ex-vessel. At least one fish house has had recent offers of $1.45 or $1.50 per pound for redfish. The economic impact statement puts the secondary wholesale value of redfish at 2.8 times the ex-vessel price. Grocery stores, seafood markets and restaurants sell redfish at retail. On the assumption that the retailers could substitute imported redfish for native redfish, if commercial fishing is banned by the proposed rule, the economic impact statement ignores retail losses and predicts a "total annual longterm commercial loss ... [of] approximately $4.733 million in income [which] could force some fishermen and fish houses that rely primarily on redfish out of business." Petitioners' Exhibit No. 5, p. 2. The economic impact statement's analysis assumed a loss of commercial catch of only 961,646 pounds, the 1982-1984 average. On the same assumption, an economist analyzing the problem from the perspective of sport fishermen, predicted the total economic impact of closing the commercial fishery would be $6,494,629 annually, taking retail sales into account and using certain multipliers. Respondent's Exhibit No. 1, pp.9 and 10. Neither of these calculations takes into account the economic value of redfish as leverage in mullet sales, although the economic impact statement does mention that "having no redfish to sell will hurt the mullet sales." Petitioners' Exhibit No. 5, p. 21 Fewer, Fatter Fish for Frying If the proposed rules take effect and the fishery does not collapse, the escapement rate will increase by a factor of 58.43 and, except for the fish that escape, the recreational fishermen will have available not only the fish now caught by commercial fishermen, but also all of the predicted increase in the weight of the redfish catch. The present recreational catch, estimated at 2.1 million pounds, before the new minimum size regulations took effect on September 12, 1985, would grow to 5.65 million pounds at equilibrium three or four years out. Petitioners' Exhibit No. 4, p. 10, All of this increase would be attributable to an increase in the average size of the fish caught, because, over the same period, the number of fish caught by recreational anglers would fall from 1,190,000 to 1,030,000. Id. The precise effects these changes would have on the recreational fishing industry are not clear. The two-month closed season would have an adverse affect, since some 7.4 percent of recreational fishing trips on which redfish are caught or sought now occur in March or April. On the other hand, there would be more redfish, they would weigh more on average, and they would be more likely to be caught not only during the ten months they could lawfully be taken, but also during the two months when the law would require fishermen to release them, if caught. The proposed rule would make it more likely that unskilled fishermen who would not otherwise have caught a redfish will catch redfish, and that those who would otherwise have caught less than five will be more likely to catch as many as five. T.X. Skilled fishermen might be discouraged by the proposed five fish bag limit. Increased abundance would presumably be irrelevant to the 7.6 percent of recreational anglers now catching more than the proposed bag limit of five. They may, indeed, be lured to Alabama where the bag limit is 25, or to some other site. The effects a change in the availability of redfish might have on recreational fishing were the subject of much testimony at the hearing. The economic impact statement assumed a response elasticity for non-residents" of 0.1203, i.e., that an increase of eight percent in pounds of redfish available would cause an increase of approximately one percent of the number of fishing trips on which redfish were caught or sought. The 0.1203 figure is "Green's coefficient," and was used by Green to correlate changes in numbers of fishing trips taken by non-residents already in Florida with changes in multi-species catch (in pounds) per trip, not with changes in the total number of pounds of a particular species available to be caught. As far as the evidence showed, moreover, the weight of fish in Green's study was a good proxy for numbers of fish. In the present case, the increase in weight would occur despite a reduction in the number of fish caught and kept. Despite all the problems, however, Green's coefficient is a much more satisfactory measure of elasticity than any other offered at hearing. The economic impact statement summed up the situation fairly by saying with respect to recreational fishing, "little is known of the effects of being able to harvest less of one species of fish, especially in saltwater where a multitude of species are available as substitutes." Petitioner's Exhibit No. 5, p. 3. The converse is also true, although fishermen "tend to go to the spot where... [they] think... [they] can catch the most fish." But the proposed rules would decrease, not increase, the numbers of redfish that recreational fishermen could take. (T.V. 148) Studies in evidence show that increased availability of fish attract fishermen to the site of the increase. Even if it is assumed that bigger fish attract fishermen just as greater numbers of fish do, it does not follow that the total number of fishing trips occurring everywhere increases, rather than that fishing has fallen off at alternate sites within the fisherman's geographical range. (T.V. 147-148) For many tourists the geographical range will be determined by factors unrelated to fishing. Tourists, including tourists who eventually go fishing in salt water here, come to Florida for many different reasons. Perhaps the children want to go to Disneyworld. Whether a fishing trip is among their recreational pursuits once they arrive depends on how attractive a fishing trip seems in relation to other recreational possibilities. This depends, in turn, on a host of other factors, including, for example, relative cost. The cost of a fishing trip is five times more important than the availability of fish, as a variable determining whether the fishing trip will be taken. Even anglers choosing a Florida vacation in order to go fishing will not necessarily take the availability of redfish into account. Enforcement Considerations Size restrictions are more easily enforced against commercial fishermen than against recreational fishermen, because almost the entire commercial catch moves through licensed, frequently inspected fish houses, while the low numbers of marine patrol officers make enforcement of such regulations against recreational fishermen a haphazard affair. The so-called night fishery for redfish during summer months occurs at first light. Even if fish are taken while it is dark, they must, with few exceptions, move through easily monitored channels if they are to be distributed commercially. Closed seasons create the possibility of erosion when they begin, by fishermen jumping the gun, and when they end, by fishermen persisting unlawfully. Redfish can be frozen, which makes it difficult to determine just when they were caught. Under the proposed rule, however, frozen redfish can be imported, so the possibility of passing off native red fish as imports would exist, just as, in a mixed fishery with a closed season, the possibility of passing off redfish taken out of season as having been taken lawfully would exist. There is also the possibility, if bag limits apply to recreational, but not to commercial, fishermen that recreational fishermen will buy salt water products licenses to escape the bag limits. Such a strategy would appeal to recreational anglers who successfully fish for redfish now. Data from other, similar fisheries suggest that successful anglers' catch goes up proportionally much less than marginal or unsuccessful fishermen's catch in response to increased abundance. Recreational vs. Commercial Economic analyses of intergroup reallocations assume that the marginal utility of income is the same in each group. Since this is unlikely to be the case, such analyses are of limited importance. The accepted way to compare economic benefits attributable to commercially caught redfish and those attributable to redfish caught recreationally is to sum the producer's surplus and the consumer's surplus for the commercial catch and to do the same calculation for the recreational catch, and then compare the two. But there was virtual unanimity that adequate data do not exist to make these calculations. This makes the expenditures approach to valuation of red fish taken recreationally one of the few possibilities for quantifying their economic importance. But in a very real way, this approach is all wrong. Attributing fishermen's food and lodging costs to redfish they catch is analogous to allocating to each redfish sold in a restaurant the entire price of the meal, the babysitter's wages, and costs incurred for transportation to the restaurant. An increase in the price of gasoline results in an increase in the value assigned to redfish taken by recreational fishermen, although higher gasoline prices actually make fishing trips and the fish they might yield less attractive. Dr. Austin offered the most interesting approach, an approach which it is instructive to apply to the numbers Mr. Davis supplied on the last day of hearing. Dr. Austin's technique requires identifying the increase in recreational catch attributable to closing the commercial fishery. A close approximation is possible. The proposed rules would close down the commercial fishery by two overlapping devices: the bag limit and the ban on sale. Mr. Davis supplied the GXPOPS predictions of equilibrium effects for the "18 inch option," which differs from the proposed rules in that it has no bag limits does not forbid the sale of native redfish, and has no closed season. According to Mr. Davis, respondent's executive director, recreational fishermen would take 3,950,000 pounds and commercial fishermen would take 1,112,000 pounds of redfish at equilibrium, with the 18 inch option, assuming the fishery did not collapse. At equilibrium under the proposed rules, again assuming the fishery did not collapse, the total annual catch (which would all be recreational) is predicted to amount to 5,650,000 pounds. At equilibrium, the recreational catch with the proposed rules in place would exceed the recreational catch under the 18 inch option by 1,700,000 pounds 1/ (5,650,000 minus 3,950,000 equals 1,700,000). There would be no commercial catch under the proposed rules, but the 18 inch option would result in annual commercial catches of 1,112,000 pounds, at equilibrium. With the methodology developed at page four of the economic impact statement, Petitioners' Exhibit No. 5, it is possible to predict a 5.2 percent increase in recreational trips, or an increase of 14,641 fishing trips annually attributable to choosing the proposed rule over the 18 inch option. (283,078)(.1203)(1,700,000 divided by 3,950,000). If the proposed rules are adopted, the commercial sector's loss, at equilibrium, of 1,112,000 pounds a year may be said to have made possible the increase in recreational trips. Dividing the number of pounds lost by the number of trips gained yields the number of pounds of catch commercial fishermen would have to forego, in order to induce each additional recreational trip. Dividing 1,112,000 by 14,641 yields 76 pounds of commercial catch foregone for each recreational trip induced. The economic impact statement values each recreational trip at $53, citing Bell's study. Petitioner's Exhibit No. 5, p. 7. This compares with the retail price of 76 pounds of redfish - at $2.70 per pound - of $205.20. Another way to view the economic consequences of reallocation from the commercial to the recreational sector is to compare the relative costs of production, and efficiencies of distribution. Commercial fishermen produce redfish at an approximate cost of $.50 per pound, then introduce them into marketing channels, where they become available to all segments of the population. In contrast, SFI's economist acknowledged that it costs recreational fishermen somewhere between $19.94 and $31.37 per pound to harvest redfish, which is then available only to the sportsman and his circle of acquaintance. In short, the evidence did not establish an economic justification for closing down the commercial fishery and reallocating most of the fish that would have been taken commercially to the recreational sector. Neither the economic impact statement nor its author, who testified at hearing, claimed a net economic benefit would flow from a reallocation of redfish from the commercial to the recreational fishery. The issue of reallocation is, at bottom, a political question. Let Them Eat Mullet Although some people, like Mr. Shapley, may not be particularly interested in eating redfish, redfish is believed by many to be desirable as food. This includes people who do not own boats or go fishing. If native redfish becomes unavailable to Florida consumers, who would otherwise have eaten it, they will have to substitute frozen, imported redfish, or another species of fish or some other source of protein.
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 The central issue in this case is whether Petitioner's wholesale dealer's license should be approved for renewal.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: Henry's Seafood, Inc. was established and began doing business in 1978. From its inception Henry Torres has served as president of the company. Petitioner ceased doing business in May of 1986 when its application to renew its whole sale license to sell salt water products was denied by Respondent. On November 25, 1985, Henry Torres entered a negotiated plea of guilty to knowingly transporting with the intent to sell, offering for sale, and knowingly selling in interstate commerce approximately 120 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of law. As a result of the plea, a conviction was entered and Mr. Torres was required to pay a fine in the amount of $10,000. On November 25, 1985, Petitioner, Henry's Seafood, Inc., entered a negotiated plea of guilty to the same charge described in Finding of Fact, paragraph 2. Petitioner was then found guilty and was placed on probation for two years. The negotiated pleas entered by Petitioner were done in the interests of minimizing costs relating to the defense of the criminal actions. Moreover, said pleas were entered with the express understanding that Petitioner would be allowed to continue in business. Additionally, it was the intention of the trial judge in imposing sentence that Petitioner be allowed to continue in business. There was never a factual determination that Petitioner did possess undersized lobster tails. In fact, Petitioner received payment for some of the lobster tails which had been seized. Mr. Torres denied having violated either the Lacy Act or Florida Law. The lobster tails were not the product of Florida but had been caught in waters elsewhere. The lobster tails seized from Henri's were combined with all of the lobsters seized from other business. It was impossible to determine how many, if any, were undersized. When Petitioner applied for the renewal of its license, a disclosure was given as to the conviction described in Findings of Fact, paragraphs 1 and 2.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order approving Petitioner's renewal application and placing said license on probation for a period of two years. DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2394 Rulings of the Proposed Finding of Fact submitted by Respondent 1. Rejected, outside the scope of evidence Submitted at the final hearing. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Roberts Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact During the applicable time period, the Buccaneer held a current license to operate as a public food service establishment having been issued license number 46-01562R by the Division. The establishment is located at 2247 Fowler Street, Fort Myers, Florida. The current license is in effect until December 1, 1990. On August 16, 1989, the premises of the restaurant were inspected by Robin Terzagian, an Environmental Health Specialist. Ms. Terzagian is employed by the Lee County Health Unit, which is part of the Department of Health and Rehabilitative Services. During the inspection, Ms. Terzagian issued a written warning to the Buccaneer informing the establishment of various violations which needed to be corrected by August 30, 1989. The two major violations involved the preservation of food and food protection. On August 30, 1989, Ms. Terzagian returned to the premises to conduct a second inspection which is referred to as a "call-back" inspection. At this time, the Buccaneer had responded to a number of the violations previously noted by the inspector. The time period for compliance for the remaining violations was extended until September 8, 1989. On September 8, 1989, the partially torn gasket on the doors of the sandwich cooler had been repaired with a silicone rubber covering as opposed to "replaced", as instructed by Ms. Terzagian in her two prior inspection reports. The leaking faucet had not been repaired or replaced, as previously instructed, and the local exhaust ventilation had not yet been installed. However, the hole in the wall had been patched so this violation no longer existed. At the close of this second "call-back" inspection, Ms. Terzagian issued a Notice of Intent to File Administrative Charges for failing to correct three of the alleged violations pursuant to her instructions. The violations which were previously marked as "minor" violations were reclassified as "major" violations. Torn Gasket on the Sandwich Cooler Once the partially torn gasket on the sandwich cooler was repaired by Buccaneer, the sandwich cooler maintained the proper temperature required under the sanitary codes. Originally, the repair was made as a temporary measure by the establishment until a replacement gasket could be located by a local appliance company. Due to the age of the cooler, a replacement gasket was not located. The repair is the only measure the establishment can take to correct the problem and keep the same piece of equipment until such time as a new gasket is found. The repaired gasket has continued to successfully maintain the proper temperature in the cooler. Subsequent inspections by different inspectors have determined that the repair has not interfered with the cleaning of the cooler in the area of the repair, as originally hypothesized by Ms. Terzagian when she insisted on total replacement of the gasket. Leaking Faucet L.G. Rhodes Plumbing, Inc. was contacted to locate a replacement faucet for the sink prior to the September 8, 1989 inspection. During this inspection, the faucet had not been repaired. However, the manager of the establishment advised the inspector that a faucet was "on order" with Rhodes Plumbing. After several weeks of unsuccessful searching to find a replacement, the plumber repaired the faucet. This also occurred after September 8, 1989. Before and during the time period the Buccaneer sought to replace or repair the faucet, the restaurant changed its dishwashing procedure. The Buccaneer management argued that the revised procedure mitigated the problems the lack of maintenance of the faucet may have caused. The leaking faucet caused bacteria to accumulate around the leak. The repaired faucet has passed subsequent inspections made by inspectors who have replaced Ms. Terzagian in the review of this establishment prior to final hearing. Hole in Wall The hole in the wall in the back room was not indicated on the August 30, 1989 "call-back" inspection. The violation had been cured by the Buccaneer after the warning was issued to the establishment on August 16, 1989. The allegation in the Notice to Show Cause that the violation was in existence on September 8, 1989 was in error. Local Exhaust Over All Cooking Units On May 26, 1989, Ken Abler, an inspector with the Fire Prevention Bureau of the Fort Myers Fire Department, sent a follow up letter to the manager of the Buccaneer advising the food service establishment that cooking, other than by microwave, was not permitted on the premises until such time as a proper hood system with automatic fire suppression is installed. On August 16, 1989, Ms. Terzagian's inspection revealed that the Buccaneer was still cooking food on small, "plugged in" electric griddles without a fire suppression or hood system installed in the establishment. The practice was ongoing, and the griddles were still in use during the call-back report of August 30, 1989, the call-back inspection of September 8, 1989, and the reinspection report of October 12, 1989. The griddles were used to fry eggs and hamburger patties, and to heat sandwiches. In spite of the representations made by the Environmental Health Specialist who inspected the premises on February 28, 1990, that all violations had been corrected on these premises, the automatic hood suppression system which was installed after October 12, 1989, had not had a final inspection and trip test as of March 28, 1990. No reliable additional information was provided by Buccaneer to demonstrate that the system has since been approved. A search of the Fort Myers Fire Department records through May 23, 1990 did not reveal a final inspection approval by the Fort Myers Fire Department had occurred prior to final hearing.
The Issue As provided in the notice of hearing, the issues for disposition in this proceeding are whether agency statements within a memorandum and notice of Final Executive Order issued by the Department of Environmental Protection on July 5, 1996 are rules subject to sections 120.535 and 120.54, Florida Statutes, and if so whether the statements violate those sections. 1/ Petitioners pled only a violation of section 120.54, Florida Statutes, and contend that the remedy they seek, a determination of the invalidity of the agency statements, is available without recourse to section 120.535, Florida Statutes. At hearing, the parties, including Petitioners, availed themselves of the opportunity to elicit evidence related to section 120.535, Florida Statutes.
Findings Of Fact Petitioners are shellfishers who harvest and relay in the affected areas in Brevard County, Florida. Intervenor is a resident of Indian River County who utilizes the areas affected by the Department of Environmental Protection (agency, or DEP) statements at issue in this proceeding. The standing of these parties is uncontroverted. Respondent, DEP, is the state agency charged with the administration, supervision, development and conservation of the natural resources of the state, as provided in section 370.013, Florida Statutes. "Saltwater fish" includes shellfish, among others. Section 370.01(2), Florida Statutes. DEP is given the authority in section 370.021, Florida Statutes, to make, adopt, promulgate, amend and repeal all [rules and regulations] necessary or convenient for the carrying out of the duties, obligations, powers, and responsi- bilities conferred on the department or any of its divisions. [Emphasis added] Persons violating any of the rules and regulations adopted under the agency's authority are guilty of a misdemeanor. Section 370.021(2), Florida Statutes, describes penalties for various violations of Chapter 370 or the rules of the agency or any rule of the Marine Fisheries Commission. Section 370.021(3), Florida Statutes, provides that [[r] ules and regulations] shall be admitted as evidence in the courts of the state when accompanied by an affidavit from the secretary of the department certifying that the [rule or regulation has been law- fully adopted, promulgated, and published]; and such affidavit shall be prima facie evidence of proper adoption, promulgation and publication of the rule or regulation. [Emphasis added] Section 370.071(l), Florida Statutes, provides, in pertinent part, that DEP ... is authorized to adopt by rule regulations, specifications, and codes relating to sanitary practices for catching, handling, processing, packaging, preserving, canning, smoking, and storing of oysters, clams, mussels, and crabs. Consistent with its specific authority in sections 370.021 and 370.071, DEP has adopted Chapter 62R-7, Florida Administrative Code, "The Comprehensive Shellfish Control Code." Included in the comprehensive code is rule 62R-7.004, Florida Administrative Code, which defines various classifications of harvesting areas, adopts by reference Shellfish Harvesting Area Atlas maps, and describes circumstances for opening or temporarily closing harvesting areas in the event of red tide outbreak or other emergencies or when other criteria are met. Rule 62R-7.005, Florida Administrative Code, also adopts by reference specific maps of growing areas and harvesting areas in the Shellfish Harvesting Area Atlas published by the agency. Rule 62R-7.005, Florida Administrative Code, describes boundaries of classified areas throughout Florida, county by county, and establishes operating procedures. Rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code, establishes conditionally approved, conditionally restricted and prohibited areas of Body D waters in Brevard County, Florida. The boundaries of each are described in explicit detail; further, temporary closing to shellfishing is provided for when ... five day cumulative rainfall as measured in the immediate vicinity meets or exceeds 2.68 inches. The area will be reopened when bacteriological levels meet standards as described in Rule 62R-7.004 and fecal coliform levels in shellfish return to normal background levels so that consumption of shellfish will not be a hazard to the public health. The history note to Rule 62R-7.005, Florida Administrative Code, reflects that the rule was new on January 4, 1987 and was amended May 21, 1987, August 26, 1987, August 10, 1988, August 31, 1988, October 27, 1977, July 18, 1989, August 30, 1989, November 11, 1990, January 9, 1991, November 5, 1992, May 6, 1993, May 31, 1994 and May l, 1995. Body D is a shellfish harvesting area located in the Indian River, south of the State Road 528 bridge and north of the State Road 518 bridge, in Brevard County. DEP conducted a sanitary survey of Body D pursuant to the National Shellfish Sanitation Program Manual and released its findings in a document dated June 13, 1996. The first sentence of the document, in a narrative introducing the detailed survey procedures and results, states: Reclassification of the Body D Shellfish Harvesting Area in Brevard County is proposed for the harvest of oysters, clams and mussels [through amendment to 62R-7.005 (29)], the Comprehensive Shellfish Control Code. [Respondent's exhibit no. 5, emphasis added] The narrative summarizes the proposed classification changes, by total acreage, and projects an adverse economic impact due to increased closures. The narrative further states that the current classification of Body D is based on a comprehensive survey conducted in 1988. The National Shellfish Sanitation Program, of which Florida is a voluntary member, requires that a complete survey be conducted at least every twelve years, with updates annually and triennially (every three years). On July 5, 1996, DEP issued a Notice of Final Executive Order with an attached detailed description of the boundaries of conditionally approved, conditionally restricted and prohibited areas within Body D, "Effective August l, 1996." The attachment to the notice describes the management procedures governing temporary closings. Also attached to the notice was a map of the new classifications boundaries. The notice states that "[t]he order will remain in effect until administrative procedures are completed to amend rule 62R-7.005, Florida Administrative Code." DEP also issued on July 5, 1996 a memorandum to "Interested Parties," describing the reclassification of Body D for harvest of shellfish as follows: Effective August l, 1996, the Department of Environmental Protection reclassified Body D for the harvest of oysters, clams, and mussels. Body D is located in the Indian River, south of State Road 528 Bridge and north of the State Road 518 Bridge. A public workshop was conducted March 22, 1996 in Melbourne to get input on the proposed reclassification. The reclassification will increase the Conditionally Approved area by 404 acres, increase the Conditionally Restricted area by 6,075 acres, and increase the Prohibited area by 1,979 acres. Also, 9,116 acres were classified that were Unclassified; portions of this area were used for relay activities. Currently, the Conditionally Approved and Conditionally Restricted areas close when five-day cumulative rainfall measured at the DEP Rockledge Gauge exceeds 2.68 inches. Beginning August 1, 1996, the Conditionally Approved management plan will temporarily close when two-day cumulative rainfall measured at the Rockledge Waste Water Treat- ment Plant exceeds 0.44 inches, and the Conditionally Restricted management plan will temporarily close when two-day cumulative rainfall measured at the Rock- ledge Waste Water Treatment Plant exceeds 1.29 inches. The estimated number of days per month that the Conditionally Approved area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 21 days and an average 8.2 days per month. The estimated number of days per month that the Conditionally Restricted area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 15 days and an average 2.9 days per month. Maps are available that illustrate the shellfish harvesting area classifications at the DEP shellfish office in Palm Bay. The mailing address of this office is 250 Grassland Road, SE, Room 149, Palm Bay, Florida 32909. You may call your local DEP Marine Patrol Office or the DEP Shellfish Office at 407/984-4890 to the open/closed status of the area for shellfishing. (Petitioners' exhibit no. 2) As described in the Notice of Final Executive Order and the memorandum, the reclassification substantially altered the classification descriptions and the management practices found in rule 62R-7.005(29), Florida Administrative Code. The reclassifications were not adopted as a rule amendment pursuant to section 120.54, Florida Statutes. Instead, on September 20, 1996 DEP published notice in the Florida Administrative Weekly, Volume 22, number 38, page 5397, that it proposed repealing rule 62R-7.005, Florida Administrative Code, in its entirety, and amending rules 62R-7.001 and 62-7.004, Florida Administrative Code: * * * PURPOSE, EFFECT AND SUMMARY: This amendment proposes to repeal a rule containing references to shellfish harvesting area maps, the detailed verbal descriptions of shellfish harvesting areas classification boundaries, and criteria for temporary closure, reopening, and monitoring of shellfish harvesting areas. The rule proposed for repeal is 62R-7.005 because it was identified as procedural. An address and telephone number were provided in 62R-7.004 where the information currently contained in 62R-7.005 will continue to be made available to the public. This approach provides for reclassifications through the Governor's delegation of authority to the Division of Marine Resources. Repeal of the rule is in accor- dance with Governor Chiles' rule reduction initiative. The Department will continue to conduct public workshops and hearings and incorporate pubic input that is consistent with maximizing the harvest of shellfish and protection of public health. Additionally, this amendment proposes to update a 1993 version with a 1995 version of the National Shellfish Sanitation Program Manual of Operations, Part I and Part II, that is incorporated by reference. SPECIFIC AUTHORITY: 370.021(l), 370.071(l) FS. LAW IMPLEMENTED: 370.071 FS. DEP has closed harvesting areas in the past without following the section 120.54, Florida Statutes, amendment procedures. The record in this proceeding does not reflect whether those changes or closures were on a temporary or emergency basis as provided within rules 62R-7.004 and 7.005, Florida Administrative Code. DEP has never opened up new, previously unclassified, areas for harvesting without a formal rule amendment and has not been challenged in the past. DEP concedes that the regulatory content of the Final Executive Order supersedes rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code: Q. I want to clarify one aspect of your testimony, Mr. Heil, because I think you suggested that if a hypothetical individual were to go into Body D today and to harvest shellfish pursuant to a classification contained in Rule 67R-7.005, that is to say his conduct would have been lawful under the standard contained in that administrative rule, but his conduct is in discord or isn't in compliance with the standard for Body Water D contained in the final executive order which is the subject of this dispute today. Am I correct that it was your view that that person would be subject to present criminal prosecution for that act? A. If the area in question from harvest was previously allowed in the classification effective August 1st by the July 5th memorandum was not now allowed for harvest, then that person would be subject to arrest by the Florida Marine Patrol. Q. And prosecution and conviction? A. Correct. (Transcript, pp. 131-2) The National Shellfish Sanitation Program (NSSP), of which Florida is a voluntary member, is a consortium of federal officials (including the Food and Drug Administration, Environmental Protection Agency and National Marine Fisheries), state officials from state shellfish control agencies, and members of the shellfish industry. DEP contends that its participation in the NSSP and obligation to comply with the National Shellfish Sanitation Program Manual of Operations (the manual) precludes compliance with section 120.54, Florida Statutes, rulemaking requirements. Florida has been criticized for moving too slowly in reclassifying areas, but the record in this proceeding does not establish that delay is because of rulemaking requirements. The manual is adopted as a rule by reference in rule 62R-7.001(5), Florida Administrative Code. The manual provides, in pertinent part: (Both the 1993 version currently adopted and the 1995 version proposed for adoption are precisely the same in this regard.) Public Health Explanation The NSSP gone [sic] beyond the original objective set forth in the 1925 Conference of insuring that shellfish shipped interstate would not be the cause of communicable disease. In the 1940's paralytic shellfish poison became a matter of public health concern and steps were taken to protect the public against this hazard. In 1957 it was recognized that shell- fish might concentrate certain radionuclides and that a radiation surveillance activity might become a necessary addition to the established procedures. In the 1960's and 1970's it became apparent that shellfish have the ability to concentrate poisons and deleterious substances such as metals, pesticides, hydrocarbons, etc. to potentially unsafe levels. To ensure the safety of shellfish, the State must supervise the growing, harvesting, relaying and transportation of shellfish. It is also important that shellfish be protected against contamination. [If State supervision is to be effective, the activity must be supported by legal authority. This authority may be either a specific law or a regulation]. The success with which the State is able to regulate the several components of the shellfish industry provides a measure of the adequacy of the statutory authority. [The unique nature of shellfish as a food also makes it necessary for the State shell- fish control agency to have authority to take immediate emergency action without recourse to lengthy administrative procedures, to halt harvesting and processing of shell- fish]. This authority should include placing restrictions on harvesting on the basis of a potential as well as an actual public health hazard. As examples, a State may find it necessary to close a shellfish growing area following a breakdown of a wastewater treat- ment plant or the unexpected finding of marine toxin(s), or when a growing area is implicated in confirmed illness. [Periodic revisions of State shellfish laws or regulations may be necessary to cope with new public health hazards and to reflect new knowledge]. Examples of changes or develop- ments which have called for revision of State laws include: (1) the increased used of pleasure boats with the resulting probability of contamination of shellfish growing areas with fresh untreated fecal material, (2) the conditionally approved area concept resulting from the construction of wastewater treatment facilities, (3) the effect of non-point source pollution, and (4) the ability of shellfish to concentrate certain radionuclides and hazardous chemicals. Experience has demonstrated that all actual and potential shellfish growing waters of the State must be classified by their sanitary suitability for shellfish harvesting. Harvesting should be permitted only from those areas which have been found by sanitary survey to meet the criteria of this Manual. Harvesting should accordingly be specifically prohibited from areas which do not meet the criteria, or which have not been surveyed, or which have outdated survey information. [Respondent's exhibit no. 4, pp. A2 and A3, emphasis added] CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to section 120.535, Florida Statutes. Standing of all parties has been established by stipulation. Petitioners allege that the Final Executive Order issued by the agency on July 5, 1996 is a rule that has not been promulgated by the procedures in section 120.54, Florida Statutes, and is therefore invalid. At the time that the Petitioners filed their challenge, the agency action was proposed to take effect on August 1st; thus, Petitioners invoked section 120.54(4), Florida Statutes, which provides: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Pursuant to section 120.52(8), Florida Statutes, a proposed rule is an invalid exercise of delegated legislative authority when the agency has materially failed to follow applicable rulemaking procedures set forth in section 120.54, Florida Statutes. The agency readily admits that it has not promulgated the material styled Final Executive Order as a rule. Nor has it commenced rulemaking proceedings to adopt the material. On the contrary, it has commenced proceedings to repeal all of rule 62R-7.005, Florida Administrative Code, including the portion which conflicts with the Final Executive Order. The agency claims foremost that the material in the Final Executive Order is not a rule; but that if it is a rule, the agency is entitled to the section 120.535, Florida Statutes, defense that rulemaking is simply not practicable. This latter argument is based, at least partially, on the insistence by federal members of the Interstate Shellfish Sanitation Conference that the agency improve its procedures. It is appropriate to consider this case under section 120.535, Florida Statutes. In Christo v. State Department of Banking and Finance, 649 So.2d 318 (Fla. 1st DCA 1995), the court determined that section 120.535, Florida Statutes, was the exclusive mechanism for challenging an agency's failure to promulgate rules. The case cited by Petitioners, Matthews v. Weinberg, 645 So.2d 487 (Fla. 2nd DCA 1994) Rev. denied (654 So.2d 919 (Fla. 1995), arose under substantially different procedural circumstances (an appeal from a circuit court decision in an injunctive proceeding) and does not establish authority for section 120.54 or 120.56 challenges to agency statements based on their non- promulgation as rules. Without citing section 120.535, Florida Statutes, Petitioners' petition still included the three allegations required by subsection 120.535(2)(a), Florida Statutes: that Petitioners are substantially affected by the statement; that the statement constitutes a rule under section 120.52(16); and that the agency has not adopted the statement by the rulemaking procedure provided in section 120.54. The parties had ample notice that the hearing was to be conducted pursuant to section 120.535, and testimony and evidence was presented with regard to the defenses available to an agency. Because section 120.535, Florida Statutes, in general, and more specifically in this proceeding, permits the consideration of factual matters presented by the agency, Petitioners' motion for summary final order is DENIED. Petitioners, however, still prevail in their challenge to the Final Executive Order. Section 120.535(1), Florida Statutes, provides: 120.535 Rulemaking required.- Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s. 120.54 as soon as feasible and practicable. Rulemaking shall be presumed feasible and practicable to the extent provided by this subsection unless one of the factors provided by this subsection is applicable. Rulemaking shall be presumed feasible unless the agency proves that: The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or The agency is currently using the rule- making procedure expeditiously and in good faith to adopt rules which address the statement. Rulemaking shall be presumed practi- cable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that: Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical out- side of an adjudication to determine the substantial interests of a party based on individual circumstances. The material contained in the Final Executive Order is a rule, defined in section 120.52(16), Florida Statutes, as follows: (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any require- ment or solicits any information not specifi- cally required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. It does not matter how the agency seeks to characterize its statement. Amos v. Department of HRS, 444 So.2d 43 (Fla. 1st DCA 1983). Proper characterization of a statement depends on the effect of the statement, not on the agency's appellation. Thus, the fact that DEP adopted similar statements as rules, then disavowed the necessity for such procedural refinements is immaterial. In twenty-plus years of experience under the Administrative Procedures Act, Chapter 120, Florida Statutes, the distinction between rule and order has been immutable. An agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. Balsam v. Dept. of HRS, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984) The agency statement contained in the Final Executive Order is generally applicable. Anyone intending to harvest shellfish within the many thousands of acres of water described in Body D is subject to the classifications. Anyone failing to comply is subject to criminal prosecution. The statement implements, interprets or prescribes law or policy: it establishes where, and under what conditions, shellfish may be taken; it establishes rainfall standards which affect temporary closings; it plainly, as stated in its counterpart rule 62R-7.005, implements section 370.071, Florida Statutes; it also implements rule 62R-7.004, Florida Administrative Code, and the National Shellfish Sanitation Program Manual of Operations, which is, itself, a rule. Significantly, the statement does not fall within one of the exceptions described in section 120.52(16)(a)-(g), Florida Statutes. It most closely resembles the specific exception provided in section 120.52(16)(d), Florida Statutes, for agency action which alters established annual harvest limits for saltwater fishing. This latter statutory exception underscores the notion that the legislature intended to otherwise include such statements within the definition of a rule. Since the statement at issue is found to be a rule, the agency is entitled to prove that rulemaking was not feasible and practicable. The circumstances surrounding the issuance of the Final Executive Order and the testimony of the agency's witness establish that rulemaking is both feasible and practicable. As provided in the document describing the comprehensive survey of Body D, Brevard County, Florida, the survey was conducted over many months and culminated in the survey report and in the reclassifications and changes in procedure described in the Final Executive Order. Prior to issuance of the Final Executive Order, the agency conducted a workshop. The agency had ample time to acquire knowledge and experience reasonably necessary to address its statement by rulemaking. The specificity of the text reflects that related matters have been sufficiently resolved to enable the agency to address the statement by rulemaking. Indeed, the agency has, in the past, addressed such statements by rulemaking and, for the present, still has such rules in effect. At the time of hearing, the agency had not proceeded with rulemaking procedures addressing the statement, although the text of the Final Executive Order disclosed an intention to so proceed. In the material filed post-hearing and officially recognized upon the request of the Intervenor and agency, the agency "addressed the statement" by announcing its intent to repeal the whole of rule 62R-7.005, Florida Administrative Code, including, of course, the subsection which is substantially amended in the Final Executive Order. The principles, criteria or standards for agency decision based on the Final Executive Order are detailed and precise and are established by agency fiat, rather than through an adjudicative process in which the substantial interests of a party are determined based on individual circumstances. Evidence in this proceeding establishes that the agency plainly intends to rely on the Final Executive Order as its basis for enforcement and prosecution and does not intend to develop on a case by case basis the standards it has already created. Nothing in the record of this proceeding supports the argument by the agency that its Final Executive Order is legally compelled by a higher federal authority or that the shellfish industry in Florida is jeopardized by rulemaking requirements. The National Shellfish Sanitation Program Manual of Operations supports, rather than discourages, the adoption of regulations. (See paragraph 17, above). Throughout Chapter 370, Florida Statutes, are references to regulations. (See, paragraphs 3 and 4, above.) Section 370.103, Florida Statutes, authorizes the agency to enter into cooperative agreements with the Federal Government, but also includes this manifest intent: When differences between state and federal laws occur, state laws shall take precedence. None contests the need for the agency to act promptly under certain circumstances to meet the exigencies of a reasonable enforcement program. According to the record in this proceeding, the Final Executive Order was not developed under such compulsion. Existing rules, the manual and even the Administrative Procedures Act provide for emergency responses to threats to public health, safety and welfare. Those are the procedures which the agency must employ. The "impressive arsenal" of remedies in the Administrative Procedures Act, acknowledged in State, ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) exists for the benefit of agencies as well as citizens at large.
