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.
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON 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 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a challenge by petitioners, Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., Seafood Consumers and Producers Association, Inc., Glen Black, Ronald E. Black, Henry Crane, Dewey Destin, Cecil Lane, Denise Leek, Gerald Pack, Harold Raffield, Richard Van Munster, D. W. Wilson, Tim Adams, Johnnie Clopton, Geoffery Cox, Mike Davis, Ronnie Day, Tim Dixon, Bob Gill, Tim Gerz, Tim Goodrich, and Mark Taylor (petitioners), to the validity of certain changes to forty-seven rules proposed by respondent, Marine Fisheries Commission (MFC or agency). According to paragraphs 5 through 27 of their amended petition, which are not contested, petitioners are incorporated associations of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, as well as individual commercial fishermen, fish and bait dealers, owners of seafood unloading facilities, processors, packers and producers, all of whom are substantially affected by the proposed rules. As such, they have standing to bring this action. The changes being proposed by the MFC affect various rules in Chapters 46-3, 46-4, 46-23, 46-24, 46-36, 46-37, 46-39, 46-42 and 46-43, Florida Administrative Code. The rule changes were proposed as a result of the adoption by the electorate on November 8, 1994, of Article X, Section 16 to the State Constitution. That section generally (a) prohibits the use of gill or entangling nets to take marine animals, and (b) places limitations on other nets in nearshore and inshore Florida waters. The amendment becomes effective July 1, 1995. On December 30, 1994, the agency published notice in the Florida Administrative Weekly (FAW) of its intent to adopt new rules, amend certain rules, and repeal all or portions of other existing rules. Claiming that these changes were invalid on a variety of statutory grounds, petitioners filed a petition to invalidate proposed rules on January 20, 1995. On March 3, 1995, a notice of changes to proposed rules was published in the FAW advising that, "based on written comment and public testimony" given at public hearings, further changes, albeit minor, were being made to rules 46- 3.008, 46-3.029, 46-4-001, 46-4.002, 46-4.004, 46-4.005, 46-23.003, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46-42.007, and 46-43.005. By virtue of these changes, petitioners were authorized to file an amended petition which contains essentially the same contentions as were previously pled. They include allegations that the rules are an invalid exercise of delegated legislative authority because (a) the MFC failed to materially follow the applicable rulemaking procedures in Section 120.54(2)(b), Florida Statutes, by failing to provide them a copy of the Economic Impact Statement (EIS) on each of the rules at least 14 days prior to the public hearing, (b) the MFC failed to materially follow the procedures in Rule 46-1.004(4), Florida Administrative Code, by not allowing public testimony at the final rule adoption hearing, (c) the proposed rules have no foundation in statutory law but rather are derived from the Florida Constitution and thus exceed the MFC's delegated legislative authority, (d) the proposed rules are arbitrary and capricious because they are based on law enforcement considerations and lack scientific certainty, (e) the rules conflict with the law implemented, and (f) as to twelve of the rules, the MFC failed to materially follow an applicable rulemaking procedure in Rule 46- 1.004(5), Florida Administrative Code, which requires that, before amending or repealing any rule derived from local laws, a public hearing be held in each affected county. In conjunction with their claims that the rules exceed the agency's rulemaking authority or are arbitrary and capricious because of law enforcement considerations, petitioners have rarely cited the specific language in the rules that they wish to be invalidated. Rather, they suggest that the entire rule is invalid. Therefore, the undersigned has been forced to undertake the tedious and difficult task of attempting to identify the allegedly offensive language in each of the challenged rules. Where the offending language cannot be readily identified, or speculation is required to identify that language, the contention has been rejected. The Rules and Their Genesis As noted above, on November 8, 1994, the electorate adopted Article X, Section 16 of the Florida Constitution. The new section, which is entitled "Limiting Marine Net Fishing," has a stated purpose of "enact(ing) limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing, and waste." More specifically, subsection (b) of section 16 provides as follows: (b) For the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals in Florida Waters: No gill nets or other entangling nets shall be used in any Florida waters; and In addition to the prohibition set forth in 1., no other type of net containing more than 500 square feet of mesh area shall be used in nearshore and inshore Florida waters. Additionally, no more than two such nets, which shall not be connected, shall be used from any vessel, and no person not on a vessel shall use more than one such net in nearshore and inshore Florida waters. Paragraphs 1.- 5. of subsection (c) go on to define the terms "gill net," "mesh area," "coastline," "Florida waters" and "nearshore and inshore Florida waters," while subsection (d) exempts from the application of the provision the "use of nets for scientific research or governmental purposes." Subsection (f) provides that "implementing legislation is not required for enforcing any violations hereof," and that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals." Consistent with subsection (f), the legislature has not enacted any implementing legislation for the purpose of enforcing the new amendment. Also, the MFC has cited a proposed effective date for the rules of July 1, 1995, which coincides with the effective date of the new amendment. In the notice published in the FAW, the MFC stated that "the constitutional provision effectively changes the direction of marine fisheries regulation in the state." In general terms, the MFC proposed the numerous changes, additions and repeal of rules to conform the rules "to this new direction," to remove the provisions that were obsolete or in conflict with the new constitutional provision, and to enhance its ability to enforce the new amendment. According to the MFC's executive director, the constitututional amendment "will have a very significant impact on the historical means and methods of commercial, . . . recreational and subsistence fishing in Florida." As specific authority for making every change, the MFC cites Subsection 370.027(2), Florida Statutes, which grants the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. As to the rules in chapter 46-3, the MFC also cites as rulemaking authority Section 2, Chapter 83- 134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. For those rules being modified in chapter 46-4, the MFC additionally relies upon the new constitutional amendment. For the affected rules in chapter 46-23, the agency further identifies as its authority for rulemaking Subsection 370.01(20), Florida Statutes, which authorizes the MFC to include within the term "restricted species" such species of saltwater products as the MFC deems necessary. As the law implemented for all rule changes, the MFC cites Sections 370.025 and 370.027, Florida Statutes. The former statute generally authorizes the MFC to adopt rules to further the state policy of managing and preserving renewable marine fishery resources while the latter statute delegates to the MFC "full rulemaking authority over marine life." The MFC further cites the Florida Constitution as the law implemented for rules in chapter 46-4, and for chapter 46-3 it cites Chapters 83-134 and 84-121, Laws of Florida. In broad terms, the rule chapters in issue cover a wide range of subject matter within the MFC's regulatory jurisdiction over marine fisheries resources, including local laws which have been reenacted as rules governing marine fishing in all or parts of thirteen counties (chapter 46-3), gear specifications and prohibited gear (chapter 46-4), and regulations pertaining to the harvest of spanish mackerel (chapter 46-23), spiny lobster (crawfish) and slipper lobster (chapter 46-24), blackdrum (chapter 46-36), spotted seatrout (chapter 46-37), marine life (chapter 46-42), and bluefish (chapter 46-43). The constitutional amendment does not prohibit the possession of gill or entangling nets. Rather, it prohibits the use of such nets in Florida waters. Thus, it is still permissible for Florida fishermen to use this gear in federal waters which lie outside of Florida waters. In addition, the amendment prohibits the use of any type of net "containing more than 500 square feet of mesh area . . . in nearshore and inshore Florida waters" but contains no limitations for nets below that threshold size. Within the context of petitioners' objections, it is noted that the proposed rule amendments fall into two broad categories: those which delete obsolete or conflicting language in order to conform existing rules to the new amendment, and those which add more restrictive measures than are contained in the new amendment. While petitioners contend that all of the proposed rules are invalid, their principal attack is directed at the more restrictive amendments. For example, the latter group of rules prohibits (a) the possession of a gill net in state waters, (b) the possession of a gill or entangling net aboard a vessel in state waters at the same time a cast net is on the same vessel, (c) the use of two nets from the same vessel in nearshore and inshore waters, (d) the use of purse seine nets under 500 square feet, (e) the use of a bailer net in Volusia County, (f) the use of a trawl for any purpose other than the harvest of shrimp, and (g) the use of purse seines of any size in Escambia and Santa Rosa Counties. None of these activities is prohibited by the new constitutional amendment. Do the Rules Exceed the MFC's Rulemaking Authority? Petitioners contend that all of the proposed rules "have as their exclusive foundation the adoption by referendum of Art. X, Sec. 16 of the Constitution of the State of Florida," and thus they "have no foundation in the criteria established by Ch. 370.025 et seq. for the adoption of rules by the (MFC)." As a consequence, petitioners essentially contend that the MFC has exceeded its delegated legislative authority by relying upon a constitutional provision, rather than statutory law, as the source of authority for its rulemaking. At the same time, they contend that the MFC exceeded its rulemaking authority by adopting a number of rules, all containing more restrictive measures than are found in the constitutional amendment, based solely on law enforcement considerations, rather than on its statutory charge of managing and preserving renewable marine fisheries resources. Similarly, they contend that the more restrictive rules are arbitrary and capricious because they are based on law enforcement considerations. This contention, however, is dealt with in a separate part of this order. As noted earlier, the MFC cites Subsection 370.027(2), Florida Statutes, as the source of its rulemaking authority for each of the rules. That subsection vests in the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. For rules in chapter 46-4, the MFC has cited the new constitutional provision as an additional source of authority. Finally, as to the rules in chapter 46-3, the MFC also relies on Section 2 of Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Authority. All of the rule changes generally pertain to the areas of gear specifications, prohibited gear, closed areas and seasons, each of which is within the "exclusive rulemaking authority" of the MFC. In this broad sense, they are derived from MFC's statutory authority under Subsection 370.027(2), Florida Statutes, and thus they arguably fall within the scope of the organic law. Petitioners contend, however, that the MFC exceeded its rulemaking authority by making law enforcement considerations a basis, at least in part, for adopting the more restrictive rules. Petitioners assert that there in nothing in Chapter 370, Florida Statutes, which allows the MFC to take into account law enforcement issues when engaging in rulemaking. In this regard, respondent concedes through testimony, as corroborated by documentation received in evidence, that the more restrictive rules were crafted for the sole purpose of "facilitat(ing) the most cost effective and efficient enforcement on the prohibition of use (of prohibited gear)." In other words, while the new amendment did not require these more restrictive terms, the MFC nonetheless proposed the rule changes in order to make the Florida Marine Patrol's (FMP) job of enforcing the ban on prohibited gear less "costly" and more "efficient." One of the statutes relied upon by the MFC as the source of its rulemaking authority is Section 370.027, Florida Statutes. Among other things, subsection (1) thereof provides that "(a)ll administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department (of environmental protection)," of which the FMP is a part. Although Section 370.028, Florida Statutes, provides that "any law enforcement officer certified pursuant to s. 943.13" shall have the responsibility of enforcing the rules of the MFC, it is clear that the FMP has the primary responsibility of enforcing the new restrictions imposed by the constitutional amendment. The principal statutory charge of the MFC is to manage and preserve renewable marine fisheries resources. The MFC has no specific statutory authority to enact rules solely for the purpose of allowing more "cost- efficient, effective" enforcement of its regulations by another agency, and its executive director readily acknowledges that the agency has no role in enforcing its regulations from a law enforcement perspective. The purpose of the constitutional amendment is to protect marine animals from "unnecessary killing, overfishing and waste." By its own terms, then, the intent of the amendment is to preserve and protect Florida's existing and future fishing stocks. The amendment should achieve its goal, for the record shows that, once the amendment becomes effective, there should be a significant reduction in fishing mortality, with a concomitant rise in fishing stocks. Under Section 370.025, Florida Statutes, the MFC is charged with a similar responsibility of managing and preserving marine fishery resources. The evidence clearly shows that the more restrictive rules will have no meaningful effect on fishing mortality. That is to say, this category of rules has been proposed, not to further the MFC's charge of managing and preserving marine fisheries resources, but rather for the sole purpose of assisting another agency (the FMP) in enforcing the ban on the use of gill or entangling nets in Florida waters, and the use of certain nets in nearshore and inshore waters. As such, the more restrictive rules have no foundation in statutory law, and they exceed the MFC's rulemaking authority. For this reason, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46- 3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46-4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, and are derived from appropriate statutory law, the contention that they exceed the MFC's rulemaking authority is deemed to be without merit. Are the Rules Arbitrary and Capricious? In their amended petition, petitioners also contend that all of the rules affected by these changes are arbitrary and capricious. In this vein, they contend that the rules "are not grounded in logic and reason and are not supported by appropriate scientific certainty." They also claim that where the MFC has exceeded the mandate of the constitution, the rules are arbitrary and capricious in the sense they are not grounded on a rational or logical basis since they stem from MFC's desire to ease the FMP's job in enforcing the new amendment rather than its desire to further the goal of managing and preserving the marine fishery stocks in Florida. The record on which the MFC based its changes was derived in part from public hearings conducted in three locations around the state. At those hearings, it heard comment from its staff, numerous affected persons, including those who oppose and support the proposed rules, as well as FMP representatives who are charged with the responsibility of enforcing the new law. In addition, during the rulemaking process, MFC and FMP staffers consulted with the State of Texas, which has a similar ban on the use of entangling net gear, to gain an insight on any enforcement problems which that state experienced. Thereafter, the MFC staff prepared an analysis of the public comment, together with their own recommendations, which were considered by the MFC prior to its final decision. Copies of the staff reports and analyses have been made a part of this record. The more restrictive rules and law enforcement considerations Before adopting any rule, the MFC says it always consults with, and obtains advice from, the FMP regarding enforcement implications. Thus, in crafting its more restrictive rules, the MFC relied wholly upon the recommendation of the FMP, which has the responsibility of enforcing the law. The FMP in turn relied upon the experience of the State of Texas, which first imposed a statutory ban on the use of nets in 1988, and later imposed a statutory ban on the possession of nets in order to provide more effective enforcement. Based on advice from the FMP that, without more restrictive measures, it would experience the same problems as did Texas, the MFC decided that a ban on the possession of nets would be necessary in order to permit a more efficient enforcement of the new amendment. Indeed, it did so even though the FMP's chief law enforcement officer acknowledged that the FMP can enforce the new constitutional amendment without the MFC adopting any new rules. Except for this advice from the FMP during the rulemaking process, there is no other basis in fact or logic to support the broad and sweeping revisions. Therefore, while the more restrictive rules are designed to ease the job of law enforcement officials, and thus in that respect they have some logical and rational basis from a law enforcement perspective, they nonetheless have no correlation to the MFC's task of managing and preserving marine fisheries resources. Given this lack of a factual and logical predicate, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46-3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46- 4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, the contention that they are arbitrary and capricious on account of law enforcement considerations is deemed to be without merit. The other rules Petitioners also contend that the rules are arbitrary and capricious because they "are not grounded in logic and reason and are not supported by appropriate scientific certainty." Each of the affected chapters will be discussed separately. Chapter 46-3 Chapter 46-3 contains provisions governing fishing in Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties. When the MFC was statutorily created as a part of the Department of Natural Resouces (DNR) in 1983, there were numerous local laws in existence having special application to these counties. The law which created the MFC directed that these local laws be repealed and reenacted as DNR rules. Some of these were codified in chapter 46-3. As changes to organic law occur, the MFC must logically amend these "local" rules to conform them to statewide requirements. According to the notice published in the FAW, the "purpose of these rule amendments (in chapter 46-3) is to conform the Marine Fisheries Commission's rules readopting portions of various special acts (local laws) to this new direction by deleting numerous local netting regulations and amending other provisions relating to gear still allowed by the constitutional provision." The notice added that "the effect of this rulemaking will be to eliminate many obsolete local rules and implement the constitutional provision's uniform regulatory regime." Affected by the proposed changes are rules 46-3.002, 46-3.008, 46- 3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46-3.034, 46-3.035, 46- 3.037, and 46-4.038. Each of these rules contains requirements unique to a particular county or waterbody within a county. They include seasonal restrictions on the use of nets other than cast nets and bait seines (Caloosahatchee River in Lee County, rule 46-3.002); restrictions on the use of gill nets (Volusia County, rule 46-3.008); minimum mesh size for gill nets and other gear (Lee, Collier and Duval Counties, rules 46-3.025 and 46-3.027); minimum mesh size for gill or trammel nets, a special management regime for purse seine harvest of menhaden in inside waters, and a minimum length for seines (Santa Rosa and Escambia Counties, rule 46-3.028); minimum mesh sizes for gill or trammel nets and maximum lengths for nets (Hernando County, rule 46- 3.029); restrictions on net fishing and a minimum gill net mesh size (Manatee River and Terra Ceia Bay in Manatee County, rule 46-3.031); restrictions on allowable nets and traps for inside waters (Martin County, rule 46-3.032); minimum mesh size for gill and trammel nets (Pinellas County, rule 46-3.034); miminum mesh size for gill and trammel nets (Sarasota County, rule 46-3.035); minimum seine length (Walton County, rule 46-3.037); and restrictions on the use of nets and seines (Brevard County, rule 46-3.038). All of the rules in chapter 46-3 have been amended in some respect to delete language made obsolete by the constitutional amendment. More specifically, the existing rules provide an array of requirements relative to the use of gill or entangling nets in the various counties which are clearly at odds with the amendment. Wherever this language appears, or where other obsolete local rules are present, they have been deleted since the use of such gear will no longer be allowed anywhere in the state after July 1, 1995. On this basis alone, and to the extent the changes do nothing more than delete obsolete or conflicting language, it is found that the changes in rules 46- 3.002, 46-3.008, 46-3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46- 3.034, 46-3.035, 46-3.037 and 46-4.038 have a factual and logical basis and are not arbitrary and capricious. Chapter 46-4 This chapter is entitled "Gear Specifications and Prohibited Gear." As stated in the FAW, the purpose of the changes is "to implement new prohibitions and specifications to enhance enforcement of the (constitutional) amendment, and provide guidance to Florida citizens in complying with the requirements of the new provision." In new rule 46-4.001, the FMC prescribes new limitations on marine net fishing. More specifically, it prohibits the use of any gill or entangling net to harvest any marine species in state waters, prohibits possession of nets on the waters of the state except for those persons who have a legitimate need for legal harvest elsewhere, prohibits the use of any net in nearshore or inshore Florida waters to harvest marine species other than certain equipment of specified dimension, prohibits the use of any purse seine in nearshore and inshore Florida waters, and provides an exception for nets fished pursuant to a special activities license issued for public or scientific purposes. Rule 46-4.002, which contains gear definitions, provides new or amended definitions of the terms "entangling net," "gill net," and "mesh area," and repeals the definition of an "airboat." At the same time, rule 46-4.0025, which contains other definitions, provides new or amended definitions for the terms "coastline," "Florida waters," "harvest," and "nearshore and inshore Florida waters." According to the FAW, these changes make the definitions "consistent" with the new constitutional amendment. In proposed rule 46-4.004, as later modified in the notice of changes to proposed rules, the MFC expands the scope of the rule banning the use of certain gear with power to include nearshore and inshore waters. As to rule 46-4.005, it is unclear from the record whether the changes regarding the issuance of a special activities license first proposed in paragraph (2)(a)3. were later eliminated by the notice of changes to proposed rules. Assuming they were not, the revisions to the remaining part of the rule simply substitute the word "governmental" for "public" and redesignate the Department of Natural Resources as the Department of Environmental Protection. The MFC has also proposed to repeal rules 46-4.006, 46-4.007(1)and (3), 46-4.008(1)-(4), 46-4.0081, 46-4.0085, 46-4.015(1), 46-4.016, and 46- 4.017(1) and (5). The MFC says these changes are required in order to eliminate obsolete language, some of which is derived from special laws. Finally, the minor changes in rules 46-4.013 and 46-4.014 prohibit the use of spotter planes in harvesting Spanish mackerel and prescribe gear specifications for using purse seines in certain waters of Pinellas, Hillsborough and Manatee Counties, respectively. These changes have been made in order to conform the rules to what the MFC perceives to be existing law. Where the above revisions simply delete obsolete or conflicting language, or make other changes which are not more restrictive in nature, as described in finding of fact 24, there is a sufficient record basis to support a finding that the amendments are grounded in fact and logic and are thus not arbitrary and capricious. Chapter 46-23 This chapter governs the harvest of fishing for Spanish mackerel. By the rule changes, the MFC proposes to prohibit the commercial harvest of this species of fish in state waters by gill nets after July 1, 1995, and to allow only hook and line gear to be thereafter used. Specific changes have been made to rules 46-23.001, 46-23.002, 46- 23.003 and 46-23.004 to eliminate all reference to gill nets, and to describe other restricted activities relating to this species. To the extent these changes do not create more restrictions than are found in the new amendment, as more specifically described in finding of fact 24, they conform to the new law and will ease the fishing pressure exerted on Spanish mackerel. Because the changes in chapter 46-23 enhance the state policy of preserving marine fishery resources, there is insufficient evidence to support a finding that they are arbitrary and capricious. Chapter 46-24 Chapter 46-24 governs the harvest of Spiny Lobster (Crawfish) and Slipper Lobster. The only rule affected by the changes is rule 46-24.007, which has been amended to specify the maximum size of bully nets and hoop nets used in the spiny lobster fishery. More specifically, the changes in subsection (5) of the rule limit bully nets to a diameter no larger than 3 feet while hoop nets are limited to a diameter no larger than 10 feet. Because the only change has been previously found to be arbitrary and capricious, the additional argument that the rule lacks "scientific certainty" need not be addressed. Chapter 46-36 This chapter, which relates to Black Drum, is amended in one respect by changing language in rule 46-36.002(2) to delete reference to nets and seines in the definition of the term "commercial harvest." Because the change is necessary to conform the rule with the new amendment, and there will be no appreciable change in the number of fish that can be caught, there is a sufficient factual predicate to support the change. Chapter 46-37 This chapter specifies regulations pertaining to the harvest of spotted seatrout. Only two rules are affected, those being rules 46-37.002 and 46-37.006. According to the FAW, the effect of the changes will be to "clearly indicate that hook and line gear is the only allowable gear for the harvest of spotted seatrout and that spotted seatrout harvest in excess of recreational bag limits will be considered commercial harvest after (the constitutional amendment) become(s) effective July 1, 1995." The only change in rule 46-37.002 is found in section (2), which defines the term "harvest for commercial purposes." There, the MFC has proposed to delete reference to the use of nets. In addition, sections (2) and (3) of rule 46-37.006 have been amended to delete all gill and trammel net mesh size requirements. Since both changes exceed the constitutional mandate and are based solely on law enforcement considerations, and have already been determined to be arbitrary, it is unnecessary to address petitioners' remaining contentions. Chapter 46-39 Chapter 46-39 governs the harvest of mullet, which has traditionally been a gill net fishery. All or parts of rules 46-39.002, 46-39.0035, 46- 39.005, 46-39.006, 46-39.007, 46-39.008, 46-39.009, 46-39.010, 46-39.011 and 46- 30.012 have been amended or repealed to conform these rules to the new amendment. More specifically, the species will now be available to a limited extent only through the use of cast nets, and thus all provisions pertaining to gill net specifications, spotter planes, daily vessel limits, and weekend closures and other closed seasons have been deleted. To the extent these rules do not exceed the constitutional mandate, as previously discussed, they are based on facts and logic and are not arbitrary or capricious. Chapter 46-42 This chapter pertains to the broad subject of "Marine Life." As stated in the FAW, the purpose of the single rule amendment is to "specify the maximum size of barrier nets and drop nets used to harvest tropical fish." Rule 46-42.007 provides gear specifications for the harvest of tropical fish. Paragraphs (1)(b) and (c) have been amended to establish a maximum length for barrier nets of 60 feet, with a maximum depth of 8 feet, and a maximum dimension of 12 feet for drop nets. Because these changes have been previously found to be arbitrary and capricious by virtue of being based solely on law enforcement considerations, it is unnecessary to determine if they are arbritrary and capricious for other reasons. Chapter 46-43 The final chapter being amended governs the bluefish harvest and changes one rule "to provide gear specifications to apply to the commercial harvest of bluefish in the federal Exclusive Economic Zone (EEZ) waters adjacent to east coast Florida waters in the Atlantic Ocean, in accordance with the Fishery Management Plan for the Bluefish Fishery . . . as implemented through federal rules." Specifically, subsection (2) of rule 46-43.005 has been amended to delete references to current statewide gear rules and provide new net gear requirements applicable to commercial bluefish harvest in federal waters adjacent to Florida east coast waters, including tending requirements, net marking specifications, maximum net length and minimum mesh size, and soak requirements. The new language also allows only one net to be fished at a time from a single vessel, but allows possession of a maximum of two nets, including the one being fished. Finally, the term "net" is defined to exclude purse seines. These changes apply only to the bluefish fishery in adjacent federal waters which are subject to Florida rulemaking by virtue of an interstate compact. The proposed changes have been approved by the Atlantic States Marine Fisheries Commission, are necessary in order for Florida to meet its state quota under the compact, and have a basis in fact and logic. Accordingly, the rule changes are not found to be arbitrary or capricious. Do the Rules Conflict with the Law Implemented? Petitioners further allege that the proposed rules conflict with the law implemented. More specifically, they have alleged that the proposed rules do not conform with the criteria established in Section 370.025, Florida Statutes, one of the two statutes relied upon by the MFC as the law implemented for all rules. Subsection (1) of the law declares that the state policy of managing and preserving its renewable marine fishery resources shall be based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. Subsection (2) requires that all rules adopted by the MFC relating to saltwater fisheries be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociologi-cal, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Incon- sistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. To show conformity with the above standards, the MFC staff prepared a document entitled "Adherence to Commission Standards" for each of the affected chapters. These documents, which are a part of the rule file, are found in respondent's exhibit 1 received in evidence, and they were considered by the MFC as a part of the rulemaking process. They provide an analysis on how the proposed rules comply with the standards enumerated in subsection 370.025(2), to the extent such standards are applicable. This analysis was not credibly contradicted at hearing. In their proposed order, petitioners focus principally on the rules in chapter 46-4, which relate to gear standards and specifications, and contend these rules are illustrative of the fact that none of the rules are consistent with the statutory standards. As to whether the changes in all of the chapters are consistent with the criteria in Subsection 370.025(1), Florida Statutes, the rule changes were based on oral and written comments from laypersons, law enforcement personnel and experts and thus were based on the best available information. In addition, many of the changes were necessary by virtue of the constitutional amendment, and to this extent, they protect and enhance the marine environment for the benefit of all present and future generations. Accordingly, they are found to be consistent with the criteria in Subsection 370.025(1), Florida Statutes. As to whether the changes in chapter 46-4 are consistent with the standards in Subsection 370.025(2), Florida Statutes, the MFC's analysis indicates they "reduce fishing mortality on most inshore finfish species" and do not "jeopardize the health or abundance of inshore finfish stocks" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], eliminate obsolete provisions and "allow for alternative gear fisheries to develop after the new constitutional provision becomes effective" [paragraph (c)], "complement and affect the provisions of already developed management plans" and "maintain consistency" [paragraph (f)], "apply equally to all persons" [paragraph (g)], and "are consistent as possible with federal management plans" [paragraph (g)]. The standards in paragraphs (d) and (e) do not apply. Given these considerations, it is found that the rule changes in chapter 46-4 are consistent with the criteria and standards in Subsection 370.025(2), Florida Statutes. In a similar vein, the rule changes in chapter 46-23 "affect a reduction in fishing mortality on Spanish mackerel in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial harvesters in state waters with hook-and-line and cast net gear" [paragraph (c)], conduct the management of the species "on the unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "apply equally to all persons" [paragraph (g)], and are "consistent as possible with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. As such, the changes are consistent with the statutory criteria. With respect to the changes in chapter 46-37, they "affect a reduction in fishing mortality on spotted seatrout in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial and recreational fishers with hook-and-line gear" [paragraph (c)], conduct "the managment of spotted seatrout . . . on the unit stock" [paragraph (d)], amend the fishery managment plan [paragraph (f)], "apply equally to all persons seeking to harvest spotted seatrout" [paragraph (g)], and are not "inconsistent with recommended management plans initiated by the interstate commissions" [paragraph (h)]. The standard in paragraph (e) does not apply. On this basis, the rule changes are found to consistent with the standards. As to the consistency of the changes in chapter 46-39, they "affect a substantial reduction in fishing mortality on mullet in state waters" [paragraph (a)], "implement and aid enforcement of the recently adopted revisions to the Florida Constitution" [paragraph (b)], make "available to harvesters with cast net, and to a much lesser extent, hook-and-line gear" and "aid in the development of alternative gear fisheries for mullet" [paragraph (c)], continue to conduct the management of mullet on the unit stock [paragraph (d)], amend the fishery management plan [paragraph (f)], and "apply to anyone attemting to harvest mullet" [paragraph (g)]. The standards in paragraphs (e) and (h) do not apply. Accordingly, the rule changes are found to be consistent with the statutory standards. The revisions in chapter 46-43 "will not change the substantial conservation measures heretofore in place" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], "continue the current regulatory regime in place in the bluefish management plan" [paragraph (c)], allow the management of Atlantic bluefish to be continued to be conducted on the basis of the U. S. Atlantic coast unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "continue the regulatory regime currently in place and allow a fair and equitable distribution of the available bluefish harvest among commercial and recreational fishers" [paragraph (g)], and "are consistent with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. Again, it is found that the rule changes are consistent with the statutory standards. G. Were Procedural Requirements Met in Adopting the Rules? Petitioners complain that the MFC materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes, in three respects. First, it is alleged that the MFC failed to provide petitioners with a timely draft of the EIS prepared for each of the rule changes. Second, petitioners contend that the MFC erred by refusing to take public comment at the final adoption meeting in violation of Rule 46- 1.004(4)(b), Florida Administrative Code. Finally, petitioners argue that the MFC amended or repealed rules derived from local laws without holding a mandatory meeting in each affected county. These contentions will be considered separately below. Was the EIS submitted on a timely basis? The Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., and Seafood Consumers and Producers Association, Inc. are organizations representing at least one hundred persons. Under Section 120.54(2)(b), Florida Statutes, an agency must prepare an EIS if within 14 days after the publication of the notice provided pursuant to paragraph (1)(c) or, if no notice of rule development is provided, within 21 days after the notice required by paragraphs (1)(a) and (b), a written request is filed with the appropriate agency by . . . an organization representing at least 100 persons. The same statute goes on to provide in part that: If an economic impact statement is prepared pursuant to paragraph (2)(b), at least 14 days prior to any public hearing on a proposed rule held pursuant to subsection (3), the agency shall make a draft copy of the economic impact statement available to any person who requests a copy of the statement. On January 20, 1995, or just four days before the first public hearing, petitioners filed with the MFC a written request for preparation of an EIS on each of the proposed rules. They also asked that they be provided with a copy of a draft of the statement. Notwithstanding this request, the hearing on the proposed rules was held on January 24-26, 1995, as previously scheduled. The official record of the rulemaking proceedings was closed on February 9, 1995. On the same day, petitioners were provided with a draft EIS. There is no evidence as to how petitioners were prejudiced in the conduct of this proceeding by virtue of not receiving a copy of the EIS prior to the public hearings. Indeed, petitioners never made the MFC aware of any specific concerns regarding the EIS, and they made no claim that the EIS itself is deficient. Therefore, even if an error in procedure occurred, it was harmless and did not impair the fairness of the proceeding. Did the MFC improperly refuse to hear public comment? Rule 46-1.004(4)(b), Florida Administrative Code, provides that during a MFC rulemaking hearing any person present shall be heard on any issue under consideration, subject to control by the presiding officer of irrelevant, repetitious or unduly extended comment. The rules under consideration here were revised and approved for adoption at a MFC meeting held on February 16, 1995. It is undisputed that no public comment was permitted at that meeting. Prior to the final adoption meeting, the MFC conducted public hearings on the proposed rules in Lee, Orange and Leon Counties. The MFC general counsel was appointed as a hearing officer to conduct those meetings, and at least one commissioner attended each meeting. Members of the public who attended the meetings were allowed to offer both written and oral comment on the rules. The meetings were not transcribed, but they were videotaped in order to preserve the record. After the meetings were completed, the MFC general counsel prepared a summary of the public comment and a staff recommendation for use by the MFC at its regularly scheduled meeting on February 16, 1995. Since three public hearings had already been conducted, including one in Tallahassee, the MFC opted to dispense with public comment at the February 16 meeting and to deliberate and vote on the proposed rule changes. It is undisputed that, prior to voting on the changes, the commissioners who had not attended the public hearings did not watch the videotaped record. Instead, they relied upon the summary of comments prepared by their staff. Even if the MFC's decision to dispense with public comment was in violation of rule 46-1.004(4)(b), there is no evidence as to how petitioners were prejudiced. This is especially true since a public hearing had already been held in Tallahassee less than a month earlier, at which time public comment was invited. Therefore, if an error in procedure occurred, it was not material, and it did not impair the fairness of the proceeding. Were hearings required in each affected county? Each of the twelve affected rules in chapter 46-3 is derived from local laws identified in Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Although these rules affect Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties, a public hearing was held only in Lee County. Rule 46-1.004(5), Florida Administrative Code, provides in relevant part as follows: (5) Before adopting any rule amending or repealing any rule derived from local laws identified in Section 2(5)(a), (b), or (c) of Ch. 83-134, Laws of Florida, . . . the Commission or, at the direction of the Commission, one or more Commissioners or staff members shall hold a public hearing. When acting on rules derived from such local laws, a hearing shall be held in the county or counties affected. (emphasis added) This rule tracks language in Section 2(5)(d) of Chapter 83-134, Laws of Florida, which requires the MFC to "hold a hearing in the affected county or counties" before amending or repealing any rules derived from local law. Petitioners contend that the foregoing rule and law were violated since a hearing was held in only one of the thirteen affected counties. As noted earlier, when the MFC was created by Chapter 83-134 as a part of the DNR, numerous local laws were in effect regulating fishing practices on a county by county basis. Section 2(5)(a) of Chapter 83-134 provided as follows: Effective upon the appointment of the commission, the following local laws pertaining to saltwater fishing, to the extent they relate to those areas specified in subsection (2), shall be repealed and shall continue as rules of the department: Chapter 83-134 was amended by Chapter 84-120, Laws of Florida, which, among other things, repealed additional local laws but provided that they continue in effect as DNR rules. It is a commonly recognized fact that in 1993 the DNR was abolished through a merger with the Department of Environmental Protection (DEP). Respondent takes the position that when the DNR was merged with the DEP, the DNR rules were repealed and readopted as MFC rules, and thus the present rules found in chapter 46-3 are no longer "derived from local laws." As a consequence, the MFC contends that a public hearing in each affected county is not required. The history notes to the challenged rules reflect that they were amended at various times in 1992, or before the merger of DNR and DEP occurred. No amendments have occurred since that time. Whether the 1992 changes constitute the readoption that the MFC relies upon is not apparent from the record. In any event, the rules are clearly derived from local laws, and thus they are subject to the requirements of Chapter 83-134, Laws of Florida, and Rule 46-1.004(4)(b) Florida Administrative Code. This finding is buttressed by the fact that in the FAW, the MFC describes its changes in chapter 46-3 as being for the purpose of conforming its rules "readopting portions of various special acts (local laws)" to the constitution. Moreover, the rules themselves contain language that the MFC intends "to readopt certain provisions of (the local law)." Even though the requirement in chapter 83-134 was not followed, there was no showing by petitioners that they were prejudiced by this error or that the fairness of the proceeding was impaired. Therefore, the error is deemed to be harmless. G. Do the Rules Conflict with the Constitution? Although petitioners' amended petition does not contain the allegation that the rules conflict with the new constitutional provision, in the main body of their proposed order they argue that eighteen rules "enlarge, modify or contravene the specific provisions of the constitution implemented." In contrast, the appendix to their proposed order cites twenty, rather than eighteen, rules which are allegedly constitutionally infirm. More specifically, petitioners complain that rules 46-3.008, 46-3.029, 46-3.032, 46-4.001, 46-4.005, 46-4.007, 46-4.015, 46-4.017, 46-23.001, 46- 23.002, 46-23.003, 46-24.007, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46- 42.007 and 46-43.005 make certain conduct unlawful even though such conduct is permissible under Section 16, Article X. By way of example, the rules make the possession (as opposed to the use) of gill or entangling nets unlawful even though the possession of such equipment is not barred by the constitutional amendment. Assuming, but not conceding, that the constitutional claim has been timely raised, Subsection (f) of Section 16, Article X provides in part that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine life." (Emphasis added) Since the changes to the rules under challenge arguably relate to the "use of nets," and they have been made "pursuant to law," that is, pursuant to MFC's statutory rulemaking authority, the cited rules, even if more restrictive than the amendment, do not contravene the constitutional provision.
The Issue At issue is whether respondent's motion for summary recommended order should be granted.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered dismissing the administrative complaint filed in this matter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990.
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 Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The parties stipulated to the following facts: Petitioner is an employee of the Boromei-Mirabella Seafood Company, a licensed fish dealer located in Tampa, Florida. The scope of Petitioner's employment included the vehicular transport of fish for sale or purchase. While engaged in his employment, Petitioner was apprehended and arrested by officers of the Commission, and charged with violation of Rules 39-10.02(4) and 39- 10.02(5), Florida Administrative Code. Petitioner's arrest occurred in Highlands County, Florida, on or about December 11, 1980. Petitioner, for purposes of this proceeding, admits to the factual behavior alleged in the arrest citation issued by Respondent's offices. The rules challenged in this proceeding were promulgated by Respondent in accordance with the procedures set forth in Chapter 120, Florida Statutes, also known as the Administrative Procedure Act. The challenged rules became effective on August 11, 1979. Both rules cite Article IV, Section 9, of the Florida Constitution and Section 372.021, Florida Statutes, as "specific authority" for promulgation of the rules. In addition, Section 372.65, Florida Statutes, is listed in the Florida Administrative Code, as the "law implemented" by the two challenged rules.
