Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE 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 11th day of August, 1987.
The Issue The central issues in this case are whether the Respondent is guilty of the violations alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent was certified by the Petitioner as a law enforcement officer on April 1, 1997, and was issued certificate number 170935. At all times material to the issues raised in the Administrative Complaint, the Respondent was employed by the Martin County Sheriff’s Office as a deputy sheriff. On June 1, 2004, at approximately 11:30 a.m., the Respondent was on-duty and drove to an address in Martin County to respond to a trespassing complaint. The Respondent met with Jack Moore, the property manager for a parcel of land that included a lake. Mr. Moore complained that trespassers were fishing in the lake. The Respondent and Mr. Moore went to the area adjacent to the lake in Respondent’s assigned Martin County Sheriff’s Office vehicle, and made contact with Maxwell Boley and Frank Preston, who were fishing in the lake. The Respondent told Mr. Preston and Mr. Boley that they were trespassing on the property and if they wanted to “leave without handcuffs” they would have to give the Respondent some of their property. Mr. Preston understood the Respondent to mean that, if he and Mr. Boley did not give the Respondent some of their fishing equipment, they would be arrested and be taken to jail. Mr. Preston readily turned over his rod and reel. He estimated that it was valued at $50 to $60 dollars. Mr. Boley was hesitant to turn over his fishing equipment because it was more valuable than Mr. Preston’s. Mr. Boley estimated that his two rods and reels were worth $250 dollars each. The Respondent told Mr. Boley that he was “stupid” because giving up his fishing gear was a lot better than going to jail. The Respondent told Mr. Boley that, if he were arrested, his fines and court costs would likely exceed $1,000 dollars and Mr. Boley would have to serve a term of probation. The Respondent told Mr. Boley that he would be “better off” to simply give the Respondent half of his fishing gear and “be done with it.” When Mr. Boley still hesitated to comply, the Respondent told Mr. Boley he was going to jail, to give his car keys to his friend (Mr. Preston), and to turn around. The Respondent then reached for a set of handcuffs. When it became apparent to Mr. Boley that the Respondent meant to make good on his threat, Mr. Boley relented and gave the Respondent one of his rods and reels. Subsequent to the contact with the Respondent and Mr. Moore, Mr. Boley and Mr. Preston turned over a total of two fishing rods and reels. After both Mr. Boley and Mr. Preston turned over their fishing equipment to the Respondent, the Respondent did not arrest or charge either of them with an offense and permitted them to leave. A short time after meeting with Mr. Boley and Mr. Preston, the Respondent and Mr. Moore made contact with Melvin Oliver and Joseph Crawford. Mr. Oliver and Mr. Crawford were also fishing at the same lake. The Respondent told Mr. Oliver and Mr. Crawford that they were trespassing on the property. Mr. Oliver told the Respondent that he, Oliver, would take his stuff, leave, and never come back. The Respondent then suggested that perhaps Mr. Oliver could “work something out” with Mr. Moore in exchange for not being arrested. The Respondent stated that Mr. Moore wanted to “press charges.” The Respondent and Mr. Moore discussed, in Mr. Oliver’s presence, the comparative costs to Mr. Oliver if he were arrested in contrast to the value of his fishing equipment. When Mr. Oliver rejected the idea of such a trade, the Respondent persisted with the proposal of Mr. Oliver and Mr. Crawford giving up their property to avoid going to jail. While the Respondent continued to discuss the matter with Mr. Oliver and Mr. Crawford, Mr. Moore walked over to Mr. Oliver’s boat and retrieved the trolling motor and fishing poles from the boat. Seeing this, Mr. Oliver verbally protested and repeatedly pleaded with the Respondent not to take his property and to simply allow himself and Mr. Crawford to leave. Mr. Moore and the Respondent did not return the property and instead loaded the motor and the fishing poles into the Respondent’s patrol car. The Respondent then told Mr. Oliver never to return to the lake. Once the fishing gear was loaded in the patrol car, the Respondent and Mr. Moore got into the Respondent's patrol car and drove away. The Respondent did not arrest or charge Mr. Oliver or Mr. Crawford with an offense. Instead, he permitted them to leave. As a result of the contact with the Respondent and Mr. Moore, Mr. Oliver and Mr. Crawford turned over a total of four fishing rods and reels and one electric trolling motor. Three of these fishing rods and reels as well as the trolling motor belonged to Mr. Oliver. One fishing rod and reel belonged to Mr. Crawford. After returning Mr. Moore back to his residence, the Respondent set aside one fishing rod and reel and stated that he was keeping it for himself. The Respondent said he had been working a great deal of late and had not had the time to go and purchase a rod and reel. Although the Respondent had initially kept only one fishing rod and reel, Mr. Moore told him to take some more because he (Moore) had plenty. The Respondent agreed and took two more of the fishing rods and reels, remarking that he would give them to his buddies. The Respondent then left Mr. Moore at his residence and drove away. Of the total of six fishing rods and reels and one electric trolling motor turned over by the four fishermen on June 1, 2004, three of the fishing rods and reels were retained in the Respondent’s Martin County Sheriff’s Office vehicle, and Mr. Moore retained the other three fishing rods and reels and the electric trolling motor. Later, on the evening of June 1, 2004, Mr. Boley encountered a Palm Beach County deputy sheriff at a convenience store. Mr. Boley told the deputy about the incident with the Respondent earlier in the day and asked the deputy if it was “right." Based on his conversation with the Palm Beach County deputy, Mr. Boley reported the incident with the Respondent to the Martin County Sheriff’s Office the following day. On June 2, 2004, the Respondent’s supervisor, Lieutenant Glenn Zirkle, contacted the Respondent and instructed him to bring the fishing equipment to Lieutenant Zirkle’s office at the Martin County Sheriff’s Office. In response to Lieutenant Zirkle’s question to the Respondent as to what had occurred, the Respondent told Lieutenant Zirkle that in lieu of arresting the trespassing fishermen, their fishing rods had been taken by the property owner. The Respondent told Lieutenant Zirkle that he had merely “stood by.” The Respondent also told Lieutenant Zirkle that he would go to Mr. Moore’s residence and retrieve the fishing equipment. The Respondent did not inform Lieutenant Zirkle that the Respondent had retained some of the fishing equipment himself. In response to Lieutenant Zirkle’s order, the Respondent went back to Mr. Moore’s residence and retrieved the other three fishing rods and reels and the electric trolling motor. The Respondent then delivered the six fishing rods and reels and the electric trolling motor to Lieutenant Zirkle’s office at the Martin County Sheriff’s Office on June 2, 2004. Approximately one week after his encounter with the Respondent and Mr. Moore, Mr. Oliver filed a complaint with the Martin County Sheriff’s Office. On August 26, 2004, the Respondent gave a sworn statement to Detective Gary Bach of the Martin County Sheriff’s Office concerning an internal investigation into complaints filed against the Respondent by Mr. Oliver and Mr. Boley concerning the fishing equipment. In his statement, the Respondent denied initiating any “deals” with the trespassing fishermen and stated that any arrangements regarding the fishermen giving up their property were between the fishermen and Mr. Moore. The Respondent also stated in his sworn statement that although he was reluctant to keep any of the fishermen’s property, Mr. Moore persuaded the Respondent to accept three of the rods and reels. The Respondent indicated that he relented and accepted the additional fishing gear from Mr. Moore in an effort to be “polite” to Mr. Moore. The Respondent said in his sworn statement that he took the three rods and reels home in his patrol car. The following day, he loaded them into the bed of Deputy Shawn Green’s personal pickup truck. The Respondent stated that he did so without Deputy Green’s knowledge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Respondent be found guilty of two violations of Subsection 943.13(7), Florida Statutes, and that Respondent’s certification be revoked. DONE AND ENTERED this 24th day of March, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2006.
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 Is an Agency that settles a challenge to its denial of a license by agreeing to issue the license a "non-prevailing adverse party," as defined by section 120.595(1)(e)3., Florida Statutes (2019)? 1
Findings Of Fact The Commission denied an application by Mr. Lightsey for issuance of a Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended Notice), signed by Major Rob Beaton, Division of Law Enforcement, advised Mr. Lightsey that the Commission intended to deny his application. The Amended Notice included this dispositive paragraph: "Due to the facts stated above, pursuant to 68-1.010, F.A.C, your application for a HPL has been denied. We are processing your application fee for a refund, and you should receive it within 21 days." The Amended Notice also advised Mr. Lightsey of his right to request a hearing to challenge the intended decision. Mr. Lightsey challenged the proposed denial and requested a formal administrative hearing. Mr. Lightsey brought his challenge under section 120.57(1), which creates a right to a formal hearing to dispute a proposed agency action. The Commission referred the matter to the Division for assignment of an Administrative Law Judge and conduct of the hearing. The parties settled the licensing dispute before the hearing. Their settlement agreement provided for the Commission issuing each of the denied licenses. The parties' agreement also provided for severing the attorney's fees and costs claim, leaving it pending for the Division to resolve if the parties could not agree. The order closing the file in this case severed the fees and costs claim and reserved jurisdiction over it. The parties could not agree. The division re-opened the fees case as DOAH Case No. 19-5210F. This proceeding followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that The Florida Fish and Wildlife Conservation Commission enter its Final Order denying Petitioner's Motion for Fees and Costs under section 120.595, Florida Statutes. DONE AND ENTERED this 31st day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2020. COPIES FURNISHED: Bert J. Harris, Esquire Swaine, Harris & Wohl, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Sharmin Royette Hibbert, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issue presented in DOAH Case No. 93-3290RX is whether Rule 46-3.028, Florida Administrative Code, is an invalid exercise of delegated legislative authority, and the issue presented in DOAH Case No. 93-5549RP is whether the proposed amendment to that Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Menhaden are a species of herring. They are tightly-schooling fish which travel at the water surface. Menhaden are generally harvested as bait or for industrial products. Menhaden are planktivorous, or plankton-eating, fish which thrive in highly eutrophic aquatic environments. Portions of the inside waters of Escambia and Santa Rosa Counties become highly eutrophic during the summer months. Each summer menhaden congregate in the highly eutrophic areas of the inside waters of Escambia and Santa Rosa Counties, resulting in overcrowding and consequent suffocation of large numbers of fish. These summer fish kill in certain regions of Escambia and Santa Rosa Counties are considered a nuisance and a public health problem. To alleviate the problem, the Department of Environmental Protection has issued Special Activities Licenses to permit purse seining of menhaden in these regions during the summer months. Petitioner Blanchard is a commercial fisherman and owner of a fish net business. He has fished in the local waters of Escambia and Santa Rosa Counties for many years. In 1978, the Legislature enacted Chapter 78-501 and Chapter 78-502, Laws of Florida, which prohibited fishing in the salt-waters of Escambia or Santa Rosa Counties with a net having a mesh of less than 2 5/8 inches stretched. After the effective date of those special laws, Petitioner Blanchard continued his fishing operations by using a purse seine net with a mesh of 2 5/8 inches. After the creation of the Marine Fisheries Commission in 1983, the Commission held hearings in various locations in the State of Florida where citizens could come and discuss local laws which they wanted changed or not. Such generic local public hearings were held in Escambia County and in Santa Rosa County in August of 1987 and in November of 1989. No evidence was offered that changes to Chapters 78-501 and 78-502 were discussed at those meetings or that any notice that such changes would be discussed was published. During 1991, the Commission engaged in rulemaking to promulgate a statewide rule regulating net sizes and meshes and types of fishing gear. During the final public hearing in August of 1992 held in St. Augustine, Florida, the Commission changed its proposed statewide gear rule which had proposed to ban all seine nets, determining instead that it would prohibit purse seining but would allow haul seining and beach seining. The statewide gear rule, which went into effect, prohibited the use of purse seine nets in the waters of Escambia and Santa Rosa Counties. No evidence was offered as to the notices issued or the steps engaged in during that rulemaking process. At the time that the Commission passed its statewide gear rule prohibiting the use of purse seine nets in Escambia and Santa Rosa Counties, it was aware that it was repealing Chapters 78-501 and 78-502, Laws of Florida, which had become rules of the Department of Natural Resources pursuant to Chapters 83-134 and 84-121, Laws of Florida. At the time that it adopted the statewide rule, however, the Commission believed that purse seine netting was already banned in the waters of Escambia and Santa Rosa Counties and believed, therefore, that it was making no change to the local fishing regulations in those counties. At the time, the Commission did not know that a small scale menhaden purse seining fishery existed in the waters of Escambia and Santa Rosa Counties. The Commission's reading of the unambiguous language of Chapters 78- 501 and 78-502 was clearly erroneous. The Commission had not intended to ban an existing menhaden purse seine fishery in those waters. Petitioner Blanchard filed a lawsuit in the Circuit Court in Escambia County over the repeal of the allowance of purse seine nets with a minimum mesh of 2 5/8 inches and the ban on purse seine nets in those local waters. That litigation was dismissed due to his failure to exhaust administrative remedies. Petitioner Blanchard then filed the challenge to the existing rule which is the subject of this proceeding. In an attempt to resolve the issues raised in Petitioner Blanchard's rule challenge, the Commission proposed to amend Section (3) of Rule 46-3.028, Florida Administrative Code, to correct its unintended ban of an ongoing menhaden purse seine fishery by permitting instead a limited harvest of menhaden using purse seines in the inside waters of Escambia and Santa Rosa Counties. Under the proposed rule, which is also the subject of this proceeding, menhaden may be harvested in specified areas of the inside waters of Escambia and Santa Rosa Counties landward of the Colregs Demarcation Line with the use of a purse seine net only from a vessel with a documented length of less than 40 feet and with a purse seine net no longer than 400 yards. The proposed rule further provides that no harvesting of menhaden with a purse seine shall occur during any weekend or on any state holiday, limits any incidental bycatch to 2 percent by weight of all fish in possession of the harvester, and requires that any fish for which the Commission has established a bag limit shall be released free, alive, and unharmed. The proposed rule also includes a two-stage quota and an established fishing season for the commercial harvest of menhaden in the inside waters of Escambia and Santa Rosa Counties which opens on June 1st of each year and closes on May 31st of the following year unless it is closed earlier in accordance with quota limits. The summer quota allows a commercial harvest of menhaden in those Counties' waters of 1,000,000 pounds during the period from June 1st to October 31st of each year. If that quantity is not netted, the season is closed on November 1st by the Secretary of the Department of Environmental Protection and not reopened until the following June 1st. The winter season offers a quota of an additional 2,000,000 pounds. If the total commercial harvest of menhaden in those counties reaches 3,000,000 pounds (the 1,000,000 pounds during the summer plus the 2,000,000 pounds during the winter) before May 31st, the menhaden season for the inside waters of Escambia and Santa Rosa Counties shall be closed on the date that the harvest is projected to reach that amount and shall not reopen until the following June 1st. The Commission began the rulemaking procedures for the proposed amendment to Section (3) of Rule 46-3.028, Florida Administrative Code. Petitioner Florida Conservation Association (hereinafter "FCA") filed its challenge to the proposed rule. In the proposed rule, the Commission makes a specific finding that the harvest of menhaden through the use of purse seine nets in the inside waters of Escambia and Santa Rosa Counties during the summer months serves the public purpose of avoiding the nuisance and public health problems associated with the menhaden die-offs. The Commission also specifically finds that harvesting menhaden with purse seines will not adversely affect the long-term abundance of menhaden in the area so long as appropriate restrictions on seasonal and total annual harvest are adopted. Menhaden bring a low economic return in the marketplace. During the summer months when demand is low, commercial fishermen are paid approximately $.05 per pound for menhaden. The price increases slightly during the winter months when there is a demand for menhaden, for example, in Louisiana where it is used as bait for crawfish traps and crab traps. That demand is primarily served by large commercial operations using large vessels and long nets to harvest menhaden in the Gulf of Mexico, not in the inside waters of Escambia and Santa Rosa Counties. Similarly, the fish reduction industry (the processing of fish such as menhaden to make fish meal and to extract fish oils for industrial purposes) is primarily served by large commercial operations harvesting menhaden in the Gulf of Mexico. There is a Marine Fisheries Information System maintained by the Florida Marine Research Institute of the Department of Environmental Protection. Licensed wholesale seafood dealers fill out trip tickets reporting the type of fish, amount of fish caught, and the county where the fish are landed, whenever those dealers purchase fish from licensed fishermen. The Department receives approximately 30,000 trip tickets per month from its approximately 700 licensed wholesale seafood dealers in the State of Florida. The data from those trip tickets is entered into a computer, and the resulting statistics are relied upon by the State of Florida and by the federal government to make fishery management decisions. It can take as long as six months for the data to become part of the computer data base and as long as two years for all of the data to be edited and considered to be in final form. Because of that time lag, the Florida Marine Research Institute has implemented procedures for fish which are subject to quotas. For those fish, employees of the Institute do not wait to receive trip tickets from the dealers; rather, they commence telephone contact with the dealers who historically deal in that type of fish, maintaining telephone contact on a daily basis if necessary when it is projected that the harvest quota may be reached. Although menhaden are both a bait fish and an industrial fish, they are required to be coded on the trip tickets specifically as menhaden and not under the general category of industrial fish. Reporting on the trip tickets the name of the county where the fish were landed is mandatory although reporting the area fished, i.e., where the fish are actually caught, is optional. Although there is some evidence that menhaden caught in Tampa Bay were sometimes landed there and then transported by truck along the interstate highway system to fish houses and processing plants in Alabama, Louisiana, and Mississippi, there is no evidence that menhaden caught in the inside waters of Escambia and Santa Rosa Counties have been transported by boat and landed outside of those counties. Further, there is no likelihood that such will be done under the limited boat and net size required under the proposed rule. There is no evidence that it is economically feasible for such small boats to travel through Escambia Bay and into the Gulf of Mexico to other counties or states to avoid reporting their menhaden harvest. Although it would be better for the Department's trip tickets to report the area where the fish were caught, it is likely that menhaden harvested by boats under 40 feet in the inside waters of Escambia and Santa Rosa Counties will be landed in those counties and, therefore, captured by the Department's information gathering system, as it is currently operated. The menhaden team of the National Marine Fisheries Service, in cooperation with the Gulf States Marine Fisheries Commission, has calculated the maximum sustainable yield for Gulf of Mexico menhaden at 1.75 billion pounds. The maximum sustainable yield is the amount of fish that can be harvested annually without depleting the population of that fish. The 1993 menhaden harvest from the entire Gulf of Mexico was 1.19 billion pounds. The National Marine Fisheries Service performs annual stock assessments of Gulf menhaden. Its current assessment is that menhaden are not being overfished in the Gulf of Mexico. The federal government considers Gulf of Mexico menhaden as a single stock for management purposes. There are no indications that there is a biological problem in the Gulf-wide menhaden fishery. The Gulf stock of menhaden has been increasing in numbers since 1960. The proposed rule provides for a managed fishery for menhaden in Escambia and Santa Rosa Counties by allowing a limited harvest. The 1,000,000 pound quota for the summer portion of the fishing season is consistent with the volume of menhaden harvested in the inside waters of those Counties at the behest of those local governments and pursuant to the Department's Special Activities Licenses issued to reduce the fish die-offs in those areas, plus the volume of dead menhaden which the local governments haul to the landfill yearly. The overall 3,000,000 pound annual harvest quota was determined by calculating the peak landings for that area which had been approximately 2.1 to 2.2 million pounds yearly, plus the approximate 640,000 pounds of dead menhaden hauled away. Therefore, the summer quota of 1,000,000 pounds, plus the winter quota of 2,000,000 pounds, comprising the annual quota of 3,000,000 pounds, is a reasonable sustainable harvest. The proposed rule will serve a public purpose by helping to alleviate the summer menhaden kills in the upper bayous in Escambia and Santa Rosa Counties and will not adversely affect the menhaden population for the Gulf of Mexico. Until 1988, there was an active menhaden fishery in Tampa Bay. Suddenly, there was a dramatic decline or collapse of the Tampa Bay menhaden fishery. There still exists a lively debate on whether the disappearance of menhaden from Tampa Bay was caused by over-fishing and/or the 1988 massive acid spill into the Alafia River by the Gardinier Corporation and/or improved water quality in Tampa Bay and/or whether the disappearance of menhaden in Tampa Bay was caused by a shift in the range of where menhaden are found. There are dissimilarities between Tampa Bay and Escambia Bay. Tampa Bay was on the edge of the range for menhaden, while Escambia Bay is in the middle of the range of the menhaden population. Spotter planes were used in Tampa Bay to locate the schools of menhaden, but spotter planes have not been used to locate menhaden in Escambia Bay. Moreover, there were no regulations in place for the menhaden fishery in Tampa Bay. The proposed rule would limit and control the menhaden harvest in Escambia Bay at a time when the population is plentiful and a decline is not expected. The proposed rule with its two-phase quota has been developed by the Commission in a conscious attempt to avoid what happened in Tampa Bay. The quota prevents the dramatic increase in menhaden harvests which occurred in Tampa Bay and provides that if the summer quota is not met, which would signal a decline in the population, the fishery is automatically closed. Although menhaden have been harvested by large "motherships" in the Gulf of Mexico, mothership operations have not been conducted in Escambia Bay or the other waters in Escambia and Santa Rosa Counties. Even with mothership operations, fish are removed from the nets and loaded directly onto the mothership. They are not caught by small boats, loaded onto those small boats, then off loaded from the small boats onto the mothership. Motherships would also be prohibited in those waters since the proposed rule limits the size of vessels to under 40 feet. The Commission does not have a mandate to ban commercial fishing in the State of Florida. Rather, its mandate is to allow reasonable means and quantities of harvest, which the proposed rule does but which the total ban under the existing regulation does not. The proposed rule also allows for a reasonable management of resources, while the existing rule does not. The proposed rule is based upon the best information available to the Commission at this time. On the other hand, the ban contained in the existing rule was enacted in the absence of data showing the need for a ban. Prior to passage of the existing ban, no studies were done, no data was gathered, and there was no finding as to any problem with the menhaden fishery in the waters of Escambia and Santa Rosa Counties.
Findings Of Fact Petitioner proposes to erect a hyacinth fence at the entrance to Canal number 4 in Lake Istokpoga. The fence will consist of 4' x 4' posts six feet apart extending approximately 100 feet from each marsh bank of the canal toward Lake Istokpoga with an opening at the entrance of 12 to 14 feet to allow boat access. The fence will be attached to these 4' x 4' posts and extend about 2 feet below the surface of the water to prevent hyacinths from entering the canal and blocking navigation. Three other canals leading into Lake Istokpoga have been equipped with hyacinth fences and to date no problems have occurred. The fence does not extend to the bottom of the lake, is of a type approved by DER and will not materially effect the movement of water into and out of the canal. There is less water turnover in the canals than in the lake. This results in the canals having less oxygen than the lake and therefore are in a more stressed condition. As a result, from an ecological point of view, it is preferred to keep the hyacinths in the lake as opposed to the canals. Hyacinths which die and sink to the bottom take from the water oxygen that is needed to sustain aquatic life. From a navigational standpoint the 12 to 14 feet opening in the proposed fence is adequate for the boats that use the lake and canal. Erection of the fence will have no adverse effect on the ecology or biological resources of the area, and will result in keeping out many hyacinths that otherwise would enter the canal.
Findings Of Fact Respondent David Halfen applied for a permit from the Department of Environmental Regulation authorizing construction of a footbridge across Little Red Fish Lake in Section 7, Township 3 South, Range 19 West in Walton County, Florida. The footbridge would be 490 feet long and four feet wide with a raised area five feet high in the middle permitting small boat traffic underneath. The bridge would be constructed from treated pilings, timbers and planks and the pilings would be jetted down into the sub-strate or bottom of Little Red Fish Lake. Mr. Cliff Rohlke was accepted as an expert witness in water quality. He is employed by the Department as an Environmental Specialist with the specific duties of dredge and fill inspector. In this capacity he conducts field appraisals, reviews and makes reports of biological impacts of dredge and fill projects in conjunction with applications filed with the Department for dredge and fill permits. In this regard, Mr. Rohlke went to the site of the project and made an assessment of both the long and short-term impacts of the project on water quality in Little Red Fish Lake. Mr. Rohlke made a biological appraisal of the subject project in evidence in this proceeding as Exhibit 1. It was thus established that the short-term impacts of the project would be limited to minor turbidity and sub-strate disturbance related to the placement of the pilings. Long-term impacts will be insignificant. Based upon his long experience as a dredge and fill inspector and biologist, Mr. Rohlke established that no significant problems or impairment of water quality are associated with the construction of such a pier or footbridge by using treated pilings and timbers. Mr. Richard Fancher was accepted as an expert witness in water quality. He is the Environmental Supervisor of the Department's northwest district, supervising the Department's permitting and enforcement program in the area of dredge and fill permitting. In his years of experience with the Department, he has reviewed some 3,000 dredge and fill applications. He evaluated Mr. Halfen's application for the proposed footbridge. His review of the proposed project was conducted with a view toward whether it complied with the standards of Chapters 253 and 403, Florida Statutes and Chapter 17-3 and 17-4, Florida Administrative Code. He established that the water quality standards that the Department is charged with enforcing by these legal provisions would be complied with, with construction of the proposed project, in that the pilings for the pier or footbridge would be jetted into the sub-strate of the lake and turbidity curtains would be used to minimize the short-term deleterious effects of turbidity or sediment disturbance on the lake as a whole by confining such turbidity to the immediate area of the project. The project will not significantly affect fish and wildlife in the water body involved, nor impair water flow so as to be contrary to the public interest. Neither will any significant loss of fish or wildlife or fish or wildlife habitat be occasioned by installation of the subject bridge. Mr. Fancher was of the opinion that the bridge would impede and interfere with navigation to some extent, but not, in his opinion, so as to be contrary to public interest. Mr. Fancher, however, has not visited the site himself and has no direct knowledge as to how the lake is used in terms of navigation, fishing, water skiing and the like. Mr. Rohlke opined that navigation in terms of "normal boat traffic" would not be interfered with since on his brief inspection he saw no boats using the lake, and the bridge would have a single span raised to a five-foot elevation over the lake's surface for the purpose of permitting boats to pass under the bridge. Mr. Rohlke, however, spent only a period of less than an hour visiting the lake site and did not confer with any adjacent landowners to ascertain what uses they made of the lake. He did not measure the lake bottom depth but did acknowledge that it was of sufficient size to be used for both sailing and water skiing. He admitted that a portion of the lake would be cut off by the bridge, consisting of approximately two acres on the western side. The Petitioners, the Bannermans, as well as witnesses Klep and Hughes own property and homes on the western side of the lake and their access to the remainder of the approximately 50-acres of the lake would be partially cut off by the bridge. They would be denied some use and enjoyment of the majority of the lake. Mr. and Mrs. Bannerman have a home which fronts on the western edge of the lake. Mr. Bannerman has measured the lake and established that it is five to seven feet deep near the water's edge and approximately 12 to 15 feel deep in the center of the lake. He has a dock and a small boat on the lake and uses the boat for fishing and navigation of the lake. Fishermen frequently utilize the lake from a public access point. The lake is large enough to be used for normal recreational pursuits such as water skiing, sailing, and fishing. Mr. John Klep owns property bordering on the western edge of the lake. Access to the lake was an important consideration in his purchase of the property, and in his continuing use of it. The lake is in excess of six feet deep at his property and physically navigable. He does not wish his access to the entire lake to be restricted. Mr. Lyle Hughes has legal access to the lake conveyed to him by deed although his own property does not actually border the lake. Sailing has been his lifetime recreational pursuit and he desires to use the lake for sailing for himself and members of his family, especially the children in his family. The small sailboats for which the lake is suited generally have a mast of approximately 14 feet in height. Such a boat could not pass under the bridge if constructed as proposed, since the five-foot raised center span would only barely permit small power boats and their occupants to safely pass under it. In short, the subject bridge, while it permits small fishing and pleasure boats to pass under with their occupants, would preclude the adjacent landowners in the western end of the lake cut off by the bridge, from sailing beneath the bridge or water skiing on the lake, since their point of access for water skiing and other purposes is at their own property and it would be impossible to water ski in the lake since the bridge would not be navigable for water skiing boats and skiers. The only way sail boats could navigate under the bridge would be to use a motor, oars or paddles until the sailboat negotiates the bridge span, with attendant stepping and unstepping of the mast every time the boat passes under the bridge. This arrangement is totally impractical for those adjacent landowners to do in order to use the lake for sailing. Water skiers could not pass under a five-foot span for obvious reasons of safety. In short, it has been established that the proposed project comports with Department permitting requirements in terms of water quality impacts and impacts on fish and wildlife and fish and wildlife habitats. The project, however, has not been established to be in the public interest and not contrary to the public interest in terms of its impact on the rights of adjacent landowners to navigate the entire 52-acre lake which they presently have access to for the above-mentioned reasons. Any approval of the permit applied for must be in conjunction with a condition that the bridge be so constructed that sailboats can pass through without having to unstep their masts and water ski boats and skiers can pass through it, possibly through use of a movable span. An additional and more basic problem exists in approving this project as proposed. Department's Rule 17-1.203, Florida Administrative Code requires that a permit applicant execute and submit, with his application, an affidavit of ownership of the property involved in a dredge and fill project. The affidavit and rule requires that a permittee be either the record owner, lessee, record easement holder or an applicant to the record owner of the property for an easement to the property described in the application, and in the affidavit. Mr. Halfen submitted this affidavit with his application certifying that he was the record owner, lessee, or record easement holder of the property upon which the bridge was to be constructed and of the property landward of the construction site, and either had or would have the permission of all other persons with a legal interest in the property prior to undertaking the project. It is the policy of the Department to require the applicant to be the record owner of the submerged land, his lessee or easement holder and to submit the necessary affidavit of ownership or control. The rationale for this policy is so that the Department "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass." 1/ The property involved at the project site is subject to an active title dispute being litigated in the Circuit Court. In dispute is the question of whether the title to the lake bottom is held by the Petitioners, the Bannermans or FDIC, Mr. Halfen or the State of Florida. The property was initially conveyed into private ownership by the President of the United States, Woodrow Wilson, in 1918 as shown by stipulated Exhibit 2 in evidence. The federal government thus conveyed the pertinent property, Lots 1 and 2 of Section 7 in Township 3 South of Range 19 West together with other unrelated land to one Carl Froholm. That conveyance transferred all of the land in Lots 1 and 2 without making reference to Little Red Fish Lake. It does not indicate any reservations of public rights in and to the waters located on that property. It does not indicate any reservation of title to the bottom of the lake to be held by the State or Federal governments. Thus, the legitimate title question now being litigated in the court, is whether the Petitioners, Mr. Halfen or the State of Florida own the lake bottom upon which the bridge will be constructed and not simply whether DNR approval for its use has been obtained. Resolution of that quiet title action is still pending and argument and legal authority has been extensively briefed and provided to the Hearing Officer in the form of the various parties' proposed findings of fact and conclusions of law and memoranda. 2/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application by David Halfen for a dredge and fill permit, as described above, be granted, provided the plans and construction of the proposed bridge are sufficiently altered so as to permit water skiers and sailboats to safely and simply navigate and pass under or through the area of the proposed bridge and provided that Mr. Halfen, at the conclusion of the pending quiet title action, can establish that he has ownership or other right of control of the property on which the project will be built. DONE and ENTERED this 14th day of February, 1985, in Tallahassee, Florida. P. MICHAEL RUFF 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 14th day of February, 1985.
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
