The Issue Whether Respondent is indebted to Petitioners in the amount of $7,152, as alleged in Petitioner's complaint. The hearing in this matter was originally set for January 22, 1979. Respondent orally requested a continuance on January 19, 1979, which was granted. At the rescheduled hearing on February 26, 1979, neither Respondent nor any representative in his behalf appeared at the hearing. A Supplemental Notice of Hearing had been issued by the Hearing Officer on February 2, 1979. In view of Respondent's absence, the matter was tried as an uncontested proceeding.
Findings Of Fact Petitioners are producers of agricultural products in Florida. Respondent Don R. Smith, d/b/a Wabash Valley Sales, Vincennes, Indianna, is a licensed dealer in agricultural products pursuant to Chapter 604, Florida Statutes. Respondent was bonded pursuant to Chapter 604 as such a Florida dealer in the amount of $20,000 during the period June 4, 1977 to June 3, 1978. Surety on the bond was Fidelity and Deposit Company of Maryland, Baltimore, Maryland. The bond is conditioned to secure the faithful accounting for and payment to producers of the proceeds of all agricultural products handled or sold by the bonded dealer. (Testimony of Addison, Petitioners' Exhibit 4) During the spring of 1978, Petitioners made arrangements with M. A. Bridgeman, representative of Respondent, to grade, pack, sell, and ship tomatoes produced by Petitioners at varying prices per box. It was agreed between the parties that Respondent would be paid $1.60 per box for the above services and that the balance of the selling price would be remitted to Petitioners. There was no written contract between the parties, as is customary in the trade, nor any specified period for accounting for the proceeds of the sales. (Testimony of Addison, Bridgeman, Complaint) During the period April 10 to May 5, 1978, petitioners provided a total of 2,460 boxes of various size tomatoes to be sold for the total price of $12,588.80, in accordance with the terms of their agreement. Six of the lots were sold in April, 1978, and two were sold on May 3 and May 5, 1978, to various in-state and out-of-state purchasers by Respondent. In some instances, Bridgeman received payment from purchasers which he immediately placed in Respondent's bank account. Some payments were made directly to Respondent's place of business in Indiana. The entire sum of $12,588.80 was collected in this manner by Respondent or his agent. (Testimony of Addison, Bridgeman, Petitioners' Exhibits 2-3) Under the terms of the agreement, Respondent's fee for handling the tomatoes amounted to $3,936, leaving a balance due and owing Petitioners of $8,652.80. Although Petitioners demanded an accounting from Respondent on several occasions, Respondent did nothing in this respect until August 22, 1978, at which time he remitted a check to Petitioners in the amount of $1,500. A notation on the check indicated that it was in partial payment for tomatoes. (Testimony of Addison, Bridgeman, Petitioners' Exhibit 6) Not having received the balance of $7,152.80 from Respondent, Petitioners filed a complaint with the Florida Commissioner of Agriculture on August 30, 1978, pursuant to Chapter 604, Florida Statutes, and notice of such complaint was provided Respondent by the Department of Agriculture and Consumer Services on September 26, 1978. Respondent filed an answer to the complaint on October 10, 1978, wherein he admitted indebtedness in the amount of $5,652, but claimed that the total amount involved in the transactions was only $7,152, and further requested a hearing in the matter. (Testimony of Addison, Petitioner's Exhibits 5-6)
Recommendation That the Department of Agriculture and Consumer Services issue a final order requiring the Respondent herein to make payment in the amount of $7,152.80 to Petitioners herein within fifteen days of Respondent's receipt of the said final order. DONE and ENTERED this 9th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph S. Marcus, Esquire 317 North Krome Avenue Homestead, Florida 33030 Don R. Smith d/b/a Wabash Valley Sales Post Office Box 266 Vincennes, Indiana 47591 Earl Peterson Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue The issue is whether the Florida Game and Fresh Water Fish Commission (Commission) should renew Respondent's permit to possess captive wildlife.
Findings Of Fact Operating under the name of South Florida Reptile Exchange, Respondent, Alvin Weinberg, has been permitted since 1978 by the Commission to possess captive wildlife. On September 2, 1992, the Commission issued an Administrative Complaint seeking to deny renewal of Respondent's permit for violations of minimum pen specifications and unsanitary and inhumane conditions at his facility. Under Rule 39-5.004, Florida Administrative Code, the Commission may revoke or deny renewal of any license or permit if the licensee or permittee is convicted or found guilty, regardless of adjudication, of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission. On June 16, 1992, Respondent's facility was inspected by Lt. Charles Dennis and Lt. John West. In the course of that inspection, they found a number of unsanitary and inhumane conditions. Specifically, most of the water bowls for the animals were empty. There were dead animals, maggots and an accumulation of fecal matter in many cages. Up to 150 turtles were kept in one pit that measured only 5' X 5'. Many reptiles had not been fed properly. For instance, one Monitor lizard was so emaciated that the inspectors were surprised it was still alive. The conditions found at Respondent's facility on June 16, 1992, were the worst seen in the 17 years experience of Lt. Dennis. Respondent was issued two criminal citations on the basis of these observations, for violations of a Commission rule relating to sanitation requirements and the humane treatment of captive wildlife, Rule 39-6.0023(5), Florida Administrative Code. These citations resulted in a criminal conviction of Respondent in St. Lucie County Court, Cases 92-1754MM and 92-1755MM. Respondent was previously issued a criminal citation in July of 1991 for violation of a Commission rule relating to sanitation requirements and humane treatment of wildlife at his facility. This citation also had resulted in a criminal conviction in St. Lucie County Court, Case 91-1345MM. Before these criminal proceedings, Respondent had received warning citations from inspectors for violations of Commission rules relating to sanitation and the humane treatment of animals. During the pendency of these proceedings, Respondent's facility was inspected again on January 6, 1993. Some conditions at the facility had improved, but there were still deficiencies related to sanitation and the humane treatment of the animals. Respondent has consistently been below the industry standard with respect to sanitary conditions and the humane treatment of wildlife kept at his facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's application to renew his permit to possess captive wildlife be DENIED by Final Order of the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1993. WILLIAM R. DORSEY, JR. 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 8th day of March 1993. COPIES FURNISHED: James T. Knight III Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mr. Alvin H. Weinberg South Florida Reptile Exchange 20510 Glades Cutoff Road Port St. Lucie, Florida 34987 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue The central issue in this case is whether the amended petition alleges facts sufficient to establish standing and a legal basis for a hearing pursuant to 120.57, Florida Statutes.
Findings Of Fact For the purposes of this recommended order the following substantive facts alleged by Petitioner are deemed to accurate: On May 22, 1970, the Department entered into a lease agreement with the City which, for the sum of one dollar per year, leased the right of way to the south approach to the Bakers Haulover Bridge located in Dade County, Florida. According to this lease, the property was to be used as a parking lot and remain open to all members of the motoring public. The property leased to the City was, and is, adjacent to Biscayne Bay. This bay has been designated an aquatic preserve as defined in Section 258.39(11), Florida Statutes. The Petitioner is a sport fisherman who for many years has utilized the public right of way leased to the City to gain access to fishing at Bakers Haulover Inlet. On or about July 11, 1987, the City erected a fence on the right of way which blocked Petitioner's access to the water at Haulover Cut. The fence was erected without a permit from the Department. On November 13, 1987, Petitioner and other members of the public, primarily fishermen, met with officials from the Department to complain about the fence and to attempt to reach a compromise. As a result, the City was to apply for an after the fact permit to erect the fence. Petitioner and the other protesting fishermen believed they would be given an opportunity to review and comment upon the permit application. No notice was provided to Petitioner nor any other member of the group regarding the permit application. On December 1, 1987, the Department approved the City's permit for the erection of the fence. Petitioner has not been given an opportunity to respond to the permit application submitted by the City.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order dismissing the amended petition filed by Dan Dawson. DONE and RECOMMENDED this 19th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. COPIES FURNISHED: Fred W. Van Vonno Suite 1750, Courthouse Tower 44 West Flagler Street Miami, Florida 33130-1808 Charles G. Gardner Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, Mail Station 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether the respondent is indebted to the complainant for the sale of Florida-grown agricultural products, and, if so, the amount of the indebtedness.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rose has a grove of lychee trees on his property; each year he harvests the lychee nuts for sale, but the sale of agricultural products is not his sole source of income. In mid-June, 1996, Mr. Rose heard that the Growers Association was offering $3.50 per pound for lychees, the highest price of which he was aware. Mr. Rose took his fruit to the Growers Association on June 18, 1996. Mr. Rose had not done business with the Growers Association previously but had sold his fruit to another company. Mr. Rose received a grower's receipt showing that, on June 18, 1996, he had brought in 298 pounds of fruit, that 14 pounds were culls, and that the Growers Association had packed 27.9 ten- pound boxes of fruit. The Growers Association packed only marketable fruit. Ninety-nine percent of the tropical fruit grown in Florida is handled in pools.1 According to industry practice, the "handler" does not purchase the fruit outright but is responsible for packing, storing, selling, and shipping the fruit and for accounting for and remitting the proceeds of sale, minus expenses, to the members of the pool on a pro rata basis. The pools are composed of all growers whose fruit is packed during a designated period of time. Prices initially quoted to growers participating in a pooling arrangement are not guaranteed because the actual sales price may vary, depending on market conditions. It was the practice of the Growers Association to handle lychees under a pooling arrangement, and the receipt Mr. Rose received from the Growers Association contained the notation "P- 407LY," which designated the pool to which Mr. Rose's fruit was assigned. The Lychee P-407LY pool to which Mr. Rose's fruit was assigned consisted of fruit packed by the Growers Association between June 15 and 21, 1996. Mr. Rose was told on several occasions by employees of the Growers Association that he would receive $920.70 after expenses for the sale of his lychees. This amount was reflected in a Pool Price Report generated by the Growers Association on July 10, 1997, which also showed that a total of 107.6 pounds of fruit was included in the pool and that the Growers Association anticipated receiving a total of $4,088.65 for the sale of the fruit in the pool. The Growers Association maintained in its files a work order showing that 83 ten-pound boxes of lychees were sold to Produce Services of America, Inc., at a price of $38.00 per box and that the fruit was shipped on June 21, 1996. According to the July 10 report, the Growers Association had received payment of $932.90 for 24.55 ten-pound boxes of lychees sold to "L & V" on June 21, 1996, at $38.00 per box, but there is no indication in the report that the anticipated payment of $3,154.00 had been received from Produce Services of America. Mr. Rose repeatedly called the Growers Association during July and August to inquire about when he would receive payment for his fruit. In accordance with the information he had consistently been given by employees of the Growers Association, he expected to receive $920.70. When he received a check from the Growers Association dated August 29, 1996, in the amount of $367.48, he called the Growers Association for an explanation of why he had received that amount rather than the $920.70 he was expecting. Ultimately, he spoke with Mr. Kendall in early September, who told him that the $367.48 was all he was going to receive as his pro rata share of the pool because Produce Services of American had not paid in full for the 83 boxes of fruit it purchased. As reflected in the Pool Price Report dated September 19, 1996, the Growers Association received a total payment of only $1,847.42 for the fruit in the pool, rather than the $4,088.65 shown in the July 10, 1996, report. After the Growers Association's expenses were deducted, a total of $1,417.25 was distributed to the five growers in the pool. Although a copy of this final price report for the P-407LY pool should have accompanied Mr. Rose’s check, it did not. According to the information contained in the September 19 Pool Price Report, the shortfall in the amount received for the sale of the fruit in the pool is attributable to the Growers Association's receiving only $913.00, or $11.00 per box, for the sale of the 83 boxes of lychees to Produce Services of America, instead of the anticipated $3,154.00. The $913.00 was paid to the Growers Association by check dated August 19, 1996. Mr. Rose did not present sufficient evidence to establish that he had a contract for the outright sale of 27.9 ten-pound boxes of lychees to the Growers Association. Rather, the evidence establishes that Mr. Rose's fruit was handled by the Growers Association under a pooling arrangement and that, consistent with the practice in the tropical fruit industry, the Growers Association assumed responsibility for packing, storing, selling, and shipping the fruit. The Growers Association failed to offer any credible evidence to explain why Produce Services of America paid only $11.00 per box for the 83 boxes of fruit shipped from the pool, notwithstanding that the agreed sales price was $38.00 per box.2 Even if the fruit was damaged or in poor condition when it was delivered to Produce Services of America, the Growers Association packed 27.9 ten-pound boxes of marketable fruit on Mr. Rose’s account, and, once packed, it had complete control of the fruit in the pool. The Growers Association failed to offer any evidence to establish that it acted with reasonable care in fulfilling its responsibilities under the pool arrangement. Consequently, it bears the risk of loss rather than Mr. Rose and is indebted to him for $553.22, which is the difference between the $920.70 Mr. Rose would have received as his pro rata share of the pool had Produce Services of America paid the agreed-upon sales price of $38.00 per box and the $367.48 which the Growers Association paid to Mr. Rose by check dated August 29, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the South Florida Growers Association, Inc., is indebted to Mike Rose for the sale of agricultural products and ordering the South Florida Growers Association, Inc., to pay Mike Rose $553.22 within fifteen (15) days of the date its order becomes final. The Final Order should also provide that, in the event that the South Florida Growers Association, Inc., fails to pay Mike Rose $533.22 within the time specified, Aetna Casualty and Surety Company, as surety for the South Florida Growers Association, Inc., must provide payment under the conditions and provisions of its bond. DONE AND ENTERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.
Findings Of Fact Junior Martin, Petitioner, is a farmer d/b/a/ Junior Martin Farms in the State of Florida. Bastista Madonia is a farmer doing business in Florida and West Virginia and a licensed broker in Florida and packer of agricultural products d/b/a/ East Coast Brokers and Packers. Madonia holds Florida license no. 3906 supported by bond no. 743F4618 written by Travelers Indemnity Company as surety. In the summer of 1984 James DiMare, Bastista Madonia, and Junior Martin entered into a Farming Agreement (Exhibit 1) to establish a joint venture to grow cherry tomatoes in the fall 1984 farming season and, if successful, to continue this agreement into the spring season. Pursuant to this agreement approximately fifty (50) acres of tomatoes would be grown by Martin. DiMare and Madonia agreed to supply all plants and $500 cash per acre for which they would own 25 percent of the crop and the profits derived therefrom. East Coast Brokers (Madonia) was to supply picking bins and advance all picking money. Two dollars ($2) per package was to be charged for packing and thirty cents ($.30) per package for selling. Costs for growing the tomatoes was approximately $2,250 per acre. With their advance of $500 per acre and providing plants DiMare and Madonia financed approximately 25 percent of the growing cost of which they were to receive 25 percent of the profits. They were also to advance funds to harvest the tomatoes and deliver them to the packing house. In addition, Madonia paid for two (2) deliveries of tomato stakes to Martin's farm. The tomato crop planted in the fall of 1984 froze and was a total loss. DiMare then pulled out of the agreement. The agreement provided that if both parties are satisfied and things are going well by October 15, all parties will continue this venture by planting a spring crop. Madonia offered to contribute DiMare's share as well as his own for a spring Crop and Martin agreed to plant the spring crop. The spring crop was harvested from late March 1985 through late May 1985 (exhibit 4) at a profit. It is from this venture only that Martin bases his claim. In auditing the records, the Department of Agriculture investigator did not consider the transactions involving the fall crop because that had occurred more than nine (9) months before Martin's complaint. Section 604.21(1) Florida Statutes limits the time frame in which a complaint may be brought. Following the harvesting of the spring crop, Martin and Madonia went to Virginia to look into the feasibility of planting a summer crop in Virginia. They obtained suitable land to lease and, under a modification of their agreement, Madonia would put up most of the money required for the land, fertilizer, etc., and would be entitled to 50 percent of the profits. This venture was unsuccessful and resulted in a large loss, none of which has been paid by Martin. This endeavor was not included in the Department of Agriculture's audit because it occurred outside Florida and beyond the jurisdiction of the Florida Department of Agriculture. The parties discussed a fall 1985 crop after the debacle in Virginia and the Respondent advanced $10,000 to Petitioner for this crop (exhibit 16). This crop was never planted and the Petitioner has rendered no accounting for this advance. The endeavors by Madonia and Martin to grow fall and spring crops in Florida and a summer crop in Virginia were ongoing farming operations carried out pursuant to the Farming Agreement (Exhibit 1). As such, the endeavor was a joint farming venture with Martin providing the land (in Florida) and the farming expertise while Madonia provided plants and funds equal to one-fourth of the expenses and the marketing experience to sell the crops. Accordingly this endeavor was exempt from the provisions of Section 604.15-604.34 Florida Statutes, by Section 604.16(1) (Florida Statutes). The audit conducted by the Department of Agriculture (exhibit 6) showed Petitioner was owed $18,401.91 by Madonia as a buyer for the 1985 spring crop only. This figure does not include any advances over and above the $500 per acre advanced to Martin by Madonia for the fall crop 1984, or the advances for the Virginia operation in excess of the amount agreed to be provided by Madonia. Nor does this figure reflect the 25 percent of the profits due Madonia pursuant to the Farming Agreement. The amount Petitioner claims is owed to him by the Respondent for the spring crop is $60,632.86 (exhibit 7). This balance was prepared by Mrs. Martin from her records. Numerous checks endorsed by Petitioner which he received from Madonia were not included in those figures. Although cashed by Petitioner, they did not get into Mrs. Martin's bookkeeping records. Mrs. Martin acknowledged that she was not sure that she properly credited all of the checks she did receive from Madonia to the spring crop account. Accordingly, this figure is totally unreliable. Disregarding the fall 1984 crop and the Virginia episode, and accepting the Department of Agriculture's audit figures of $18,401.91 as the profits on the spring crops, 25 percent should go to Respondent pursuant to the Farming Agreement. This would leave $13,801.43 owed to Petitioner. From this should be deducted, at least, the $10,000 advance given to the Petitioner for the fall crop of 1985 which was never planted. The parties are engaged in civil litigation to resolve the disputes engendered by the farming activities above discussed. In those proceedings, all of the activities in which they participated pursuant to the Farming Agreement can be considered by the tribunal and resolved. Accordingly, that is the proper forum to resolve the disputes here in issue.
Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.
Findings Of Fact Facts admitted by all parties FDOT adopted Rule 14-26.0131 in August 1989. Since 1986, FDOT has had a policy of authorizing special permits for ocean-going sealed containerized cargo units as expressed in the policy statement effective March 13, 1986. FDOT recognizes that Florida's competitive position in world trade is important to the economy of the State of Florida as a whole. FDOT did not consider Florida's competitive position in world trade as a governing factor in determining to repeal Rule 14-26.0131. FDOT decided to repeal Rule 14-26.0131 because it determined that the rule was unconstitutional. FDOT decided that the rule was unconstitutional because it provided a benefit to transporters of ocean-going sealed containerized cargo units which benefit was not available to transporters of domestic containerized cargo units. The decision to settle the lawsuit brought by the Florida Trucking Association did not lead to repeal of the rule. Rather, the decision to repeal the rule led to the decision to settle the lawsuit. In determining that the rule was unconstitutional, the effect that repeal of the rule would have on Florida's competitive position in world trade was not a controlling consideration. FDOT recognized at the time it decided to repeal the rule that those competing in world trade would suffer increased cost by the repeal. FDOT decided to repeal the rule before it prepared the written economic impact statement. Based on the information in the Department's possession regarding the detrimental effects upon industry, FDOT still decided to repeal the rule. Other than review of the report referenced in the economic impact statement, FDOT did not analyze the economic impact repeal of the rule would have on transporters of ocean-going sealed containerized cargo units. FDOT did not estimate the benefit repeal of the rule would provide to transporters of nonocean-going sealed containerized cargo units. FDOT issued the following number of overweight permits in the years 1986 through 1991: Year Trips Blankets 1986 27,251 5,533 1987 26,814 4,937 1988 28,733 4,901 1989 27,613 2,745 1990 23,749 1,507 1991 27,326 1,158 15. Of the total overweight permits issued in the years 1986 through 1991, the following were for vehicles transporting oceangoing seal containerized cargo units: Year Trips Blankets 1986 0 159 1987 0 519 1988 229 484 1989 10,221 105 1990 8,119 1 1991 10,864 27 The FHWA authorizes states to permit vehicles weighing more than 80,000 pounds carrying loads which cannot be easily dismantled or divided. FHWA has advised the states that the determination of whether a load can be easily dismantled is one to be determined at the state level as expressed in the correspondence dated August 30, 1968, to Governor Riley of South Carolina. As stated in the August 30, 1986, memorandum, the FHWA has no difficulty in construing containerized cargo involved in international trade as nondivisible loads. Citrus is a major economic industry of Florida. Florida citrus packers compete for the European and Asian markets with other citrus producing countries and other fruit commodities. FDOT published an economic impact statement. FDOT complied with publication and hearing requirements. Facts established by evidence at hearing The FDOT policy which immediately preceded the subject rule was expressed as follows in a policy statement effective March 13, 1986: Sealed containerized cargo units will be considered as nondivisible loads and special permits will be issued to operate vehicles hauling such units on the state highway system of this state, subject to the following restrictions: Such containerized cargo units must be part of international trade and be moved on the highways due to importation from, or exportation to, another country. The operators of such units shall at all times have in their possession the international bills of lading to verify that such units are being operated pursuant to this policy. A special permit issued for the hauling of any containerized cargo units covers only transport with the unit's contents as originally loaded onto a vehicle, and becomes invalid once the original contents are added to, dismantled, or divided. The gross weight imposed on the highway by the wheels of any one axle of a vehicle operating under such special permit shall not exceed 25,000 pounds, and the total weight with load imposed upon the highway by all the axles of the vehicle shall not exceed 95,000 pounds. As of the effective date hereof, this policy will serve as the Department's position and practice until such time as appropriate guidelines are incorporated into rules promulgated under the Florida Administrative Code. The Department's 1986 policy statement was grounded in the Federal Highway Administrator's letter to the then-Governor of South Carolina, Richard W. Riley, which stated, inter alia, that ". . . based on the needs of international commerce and possible tax implications for bonded cargos, we [the FHWA] have no difficulty in construing containerized cargo involved in international trade as a nondivisible load" for purposes of authorizing such cargos as one of the exceptions to the 80,000 pound weight limit contained in 23 U.S.C. 127. The Department's 1986 policy statement was codified as Rule 14- 26.0131, Florida Administrative Code, effective August 2, 1989. The subject rule reads as follows, in pertinent part: This rule is being adopted to allow state regulations to conform to the permitted provisions of the memorandum of the Director, Motor Carrier Transportation, Federal Highway Administration (FHWA), dated December 30, 1985. Subject: "Vehicle Size and Weight". Ocean-going sealed containerized cargo units, to include such cargo units with wheels installed and such cargo units without wheels, will be considered as non-divisible loads (as defined in 23 U.S.C. 127) and may apply for permits exempting them from the State's overall gross vehicle weight limit of 80,000 pounds. Movements in which the sealed containerized cargo unit does not actually travel in international waters or the container is to be opened in any manner during movement between the origin and destination, other than for customs inspection, are not eligible for permits under this rule. Because of the very heavy nature of the load to be carried and the potential for increased damage to the highway from vehicles so loaded, no straight truck, as defined in Section 316.003(70), Florida Statutes, shall be eligible for a permit pursuant to this rule. Criteria for issuance of permit. The applicant must submit proof of the following: That the container for which the permit is sought, is in direct transit to or from an international seaport, for purposes of import or export of the container on an ocean-going vessel; That the container is part of international trade or trade to or from a U.S. jurisdiction outside the continental limits of the United States; That the container must be moved over roads on the State Highway System of the State of Florida, as defined in Chapter 334, Florida Statutes; and A statement swearing that the container for which permit is sought is the container to be directly exported or imported; that the contents of such container are as originally loaded; that the container has not been opened during movement between origin and destination; and that the original contents are not to be added to, dismantled, opened, or divided until they reach the identified final destination. Federal law places a weight limit of 80,000 pounds on all trucks traveling the highways within the state of Florida. Failure by the Department to enforce the law to the satisfaction of the Federal Highway Administration (FHWA) could result in the state's being declared ineligible for a portion of the federal transportation funds allocated to it. While federal and state law authorizes the Department to grant special permits to overweight trucks, it does not require or contemplate that the Department will as a matter of policy allow all sealed containerized cargo to exceed the statutorily-prescribed 80,000 pound weight limit. In December of 1989, the Florida Trucking Association and others filed a lawsuit in Federal District Court challenging the constitutionality of Rule 14-26.0131, Florida Administrative Code. The Department sought to have the lawsuit dismissed, but the Federal Magistrate denied the Department's motion to dismiss. Following the denial of the motion to dismiss, a Department staff attorney, Mr. Reynold Meyer, was asked to review and assess the Department's position in that lawsuit. Mr. Meyer summarized his view of the matter in a memorandum dated October 2, 1990, in which he stated, among other things: On December 8, 1989, the Florida Trucking Association filed the above-referenced law suit challenging the constitutionality of the Department's Containerized Cargo Rule. Thus, the Florida Trucking Association is not only directly attacking the Department's Containerized Cargo Rule but is also indirectly attacking the Federal Highway Administration's policy as stated by Mr. Barnhart. The complaint alleges the Department's Containerized Cargo Rule violates the constitution by (1) placing an undue burden upon interstate commerce; (2) discriminating against intrastate and interstate commerce; and (3) denying the plaintiffs equal protection of the law. If this case goes to trial, Judge Stafford will decide three legal issues. The first legal issue is whether the rule promotes safety upon Florida's highways and conserves their use. The second issue is whether the safety and conservation purposes of the rule outweigh the interference with interstate commerce. The third issue is whether the rule's distinction between international containerized cargoes and all other types of containerized cargoes is rationally related to a legitimate state interest. The first two issues should be decided in the Department's favor. The third issue, however, may not be decided in the Department's favor. Any unfavorable decision on the third issue will be the result of the Department's lack of a rational basis for distinguishing between international containerized cargo and all other types of containerized cargo. Because the rule, in essence, discriminates between international containerized cargo and all other types of containerized cargo the Department's chances of prevailing at trial are forty percent (40%) or less. The Department's General Counsel agreed with the opinion that there was a substantial risk that the rule would be found to be unconstitutional. The Department's General Counsel discussed the matter with the Assistant Secretary for Transportation Policy and with the Secretary of the Department. Ultimately, it was concluded by the Secretary, because of the substantial risk that the rule would be found to be unconstitutional, and because the rule appeared to give an unfair advantage to some shippers that was denied to others, that the rule should be repealed. In reaching this conclusion, the Secretary relied on the advice of counsel and on the recommendation of the Assistant Secretary for Transportation Policy. After deciding to repeal the subject rule, the Department negotiated a settlement of the Federal lawsuit challenging the validity of the rule. An essential aspect of that settlement is that the Department would take the necessary action to repeal the rule. As part of the required rule repeal process, the Department prepared and published a summary of the estimate of economic impact of the proposed rule repeal reading as follows: There will be the normal costs associated with processing a rule repeal under the Administrative Procedure Act. These costs include: Legal review and analysis, word processing typing support, publication of notice and rule text in the Florida Administrative Weekly (Currently 64 cents a line), staffing/coordinating costs, and scheduling or conducting a public hearing. There will be no increased operational costs. The repeal of the rule may increase the cost to some operators by reducing the cargo volume, thus potentially increasing the ultimate price to the consumer of those products. The Department has received a report of the effect the repeal of the rule will have upon the Florida Citrus Packing Industry. The Department has considered this report in its attempt to estimate the cost or benefit of the repeal of the rule. However, the Department does not adopt or reject the facts within the report. The Department does not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. The repeal of the rule promotes competition by equally protecting those carrying cargo units of international, interstate, or intrastate origin or destination. These economic impact statements were based upon material provided by the Department's State Permits Engineer, the Settlement Agreement, and discovery responses in the above mentioned case, the report of the Florida Citrus Packing Industry. The Department considered an economic report from the Florida Citrus Packing Industry, data furnished by the Department's State Permits Engineer, and discovery responses from the Florida Trucking Association in developing the economic impact statement in question. The report from the Florida Citrus Packing Industry was actually prepared by the Florida Department of Citrus. Prior to initiating rulemaking, the Department contacted Mr. Kinney, a representative of Florida Citrus Packers. During that contact, the Department became aware that the industry was preparing an analysis of the impact of the rule repeal on the citrus industry and requested a copy of the report from Mr. Kinney. The Department recognized and considered the fact that the rule repeal would cause some adverse impact to the Florida Citrus Industry but regarded the fact as noncontrolling. In essence, the Department's economic impact statement concluded that the rule repeal would increase the cost of transporting cargo for those who now rely on the rule but that the Department lacked sufficient data to determine the actual economic impact. In developing its economic impact statement, the Department was concerned about the impact on all industries that rely on the rule. The Department believed the entire Florida economic base must be considered in developing any economic impact statement, and concluded that it did not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. After the rule is repealed, Petitioners will not be prohibited from applying for overweight permits. Such permits will be afforded consideration on their individual merits. It is, nevertheless, to be expected that after the repeal of the rule the Petitioners will not be granted as many overweight permits as they have been able to obtain with the rule in effect. Repeal of Rule 14-26.0131 will result in a significant 1/ increase in the transportation costs for shipment of Florida citrus to international markets. As a result of those additional costs either the demand for the fruit and fruit products will be adversely affected if the costs are passed along to the buyers or the profitability of the transactions will be reduced if the sellers absorb the additional costs. The Petitioners regularly ship fresh Florida citrus fruit and frozen Florida citrus fruit products to international markets. They regularly transport such products over Florida highways in containerized loads that have a gross weight exceeding 80,000 pounds. Repeal of the subject rule will cause the Petitioners to incur increased transportation costs.
The Issue Whether a consumptive use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant Phillips Petroleum Company submitted application Number 7500103 for a consumptive use permit for an average daily withdrawal of 9,000,000 gallons of water a day to be withdrawn from the Florida Aquifer in DeSoto County, Florida. The application is for a new use and the withdrawal is for industrial use from four withdrawal points. The center of withdrawals will be located at Latitude 27 degrees, 14 minutes, 40 seconds north. Longitude 82 degrees, 2 minutes, 48 seconds west, in DeSoto County. Notice of the September 3, 1975 public hearing was published in a newspaper of general circulation, to wit: The Arcadian on August 14 and 21, 1975, pursuant to Section 373.146, Florida Statutes. Notice of the continuation of the hearing held at 10:30 a.m., December 11, 1974 were duly noticed. Sarasota County was granted leave to intervene as a party to the proceeding. Evidence was received and testimony was heard by all parties at the September 3, 1975 hearing and evidence was received and testimony was heard by she Applicant and Intervenor at the December 11, 1975 hearing, and although the attorneys for the Southwest Florida Water Management District took no further part in the December 11, 1975 hearing on the merits, depositions of the Southwest Florida Water Management District staff members, James Mann and Barbara Boatwright, were received. Phillips Petroleum Company owns approximately 15,200 acres of land in DeSoto County and Manatee County and proposes to commence a phosphate mining operation on that property using a total of 15 million gallons of water per day, 9,000,000 gallons per day (MGD) from DeSoto County and 6 million gallons per day (MGD) from Manatee County. This application for a permit is for the 9 million gallons of water to be withdrawn from an 8,700 acre parcel owned by the Applicant in DeSoto County, Florida. As such it presumptively seeks withdrawal and consumptive use of no more than the average annual water crop for this parcel. Pursuant to the water crop theory, the water crop for the 8,700 acres contro led by the Applicant in the Southwest Florida Water Management District is 8.7 million gallons of water per day. However, as shown by correspondence of a hydrologist from Southwest Florida Water Management District, a phosphate mining operation is only 90 percent consumptive and therefore the actual consumptive use is 7.8 million gallons per day and falls within the water crop theory assumption set forth in Rule 16J-2.11(3), F.A.C., infra. The statutory criteria for granting a consumptive use permit is found in Section 373.223, Florida Statutes, which states: "(1) To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: Is a reasonable-beneficial use as defined in 474.019(5); and Will not interfere with any presently existing use of water; and Is consistent with the public interest. (2) The governing board of the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land or outside the watershed from which it is taken if the governing board or department determines that such transport and use is consistent with the public interest." This statute has been supplemented by rules adopted by the Southwest Florida Water Management District and is found in Rule 16J-2.11, F.A.C.: "16J-2.11 Conditions for a Consumptive Use Permit. The intended consumptive use: Must be a reasonable, beneficial use. Must be consistent with the public interest. Will not interfere with any legal use of water existing at the time of the application. Issuance of a permit will be denied if the withdrawal of water: Will cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the Board. Will cause the level of the potentiometric surface to be lowered below the regulatory level established by the Board. Will cause the level of the surface of water to be lowered below the minimum level established by the Board. Will significantly induce salt water encroachment. Will cause the water table to be lowered so that the lake stages or vegetation will be adversely and significantly affected on lands other than those owned, leased or otherwise controlled by the applicant. Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased, or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be three hundred sixty-five thousand (365,000) gallons per year per acre.") The United States Geological Survey and the Florida Department of Environmental Relation have received data supplied to Southwest Florida Water Management District with the application for a consumptive use permit. Throughout the course of the hearing testimony was heard and evidence was received as to the "leakance value" of the parcel of land in question. "Leakance value" was defined as the moving of water from the surface down into the deeper aquifer. A geologist, Mr. Donald S. Kell, with the Department of Environmental Regulation, and who testified at the request of the Intervenor, Sarasota County, was of the opinion that insufficient data to determine leakance value in connection with the mining operation had been submitted and therefore further tests were needed. Mr. Jack Hickey of the United States Geological Survey was of the opinion that leakance value had not been obtained. The technical staff members of the Southwest Florida Water Management District were uncertain as to whether reliable leakance value had been obtained. It was the position of the Intervenor, Sarasota County, that due to the geological conditions of the proposed mining operation, this leakance value or surface recharge into the aquifer was insufficient and was not in conformity with Southwest Florida Water Management District's water crop theory assumption of 1,000 gallons per acre per day. Although evidence was presented on this point, it is the finding of this Hearing Officer that such evidence was insufficient to establish the basis of, any finding of fact or to rebut the assumption contained in the above referenced rule. The validity of this rule was not challenged and the presumption is that the rule is valid. The water used in the flotation process of applicants mining and benefication process would be recycled and reused in other areas of the phosphate operation. A letter of objection by Donald T. Yeats was examined and considered in this Order. The Applicant presented evidence that the construction of the facility would be in excess of $94 million expended over a period of 3 years, 61 percent of which would be spent in the region. 350 people would be employed at full production. Additional support jobs would employe from 200-400 people. Evidence was presented by the Applicant and was not rebutted by the Intervenor or by the Southwest Florida Water Management District as to each of the applicable conditions for a consumptive use permit in Chapter 16J-2.11, Rules of the Southwest Florida Water Management District, effectuating the provisions of Chapter 378, Florida Statutes.
Recommendation That the Southwest Florida Water Management District approve Phillips Petroleum Company's application for a consumptive use permit as requested, subject to the following terms and conditions: Prior to commencing withdrawals, Phillips Petroleum shall notify the District of said commencement; All production wells will be equipped with appropriate flow deters or other measuring devices; Phillips shall submit periodic reports of withdrawal to the District; and Phillips shall install appropriate observation wells or other monitoring facilities. DONE and ORDERED this 12th day of January, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jacob D. Varn, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler 2000 Exchange Bank Building Tampa, Florida Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida Richard E. Nelson, Esquire Richard L. Smith, Esquire Nelson, Payne, Hesse and Cyril 2070 Ringling Boulevard Sarasota, Florida
