Findings Of Fact Background On July 7, 1989, respondent, Florida Marine Fisheries Commission (Commission), duly noticed proposed rule 46-31.002 in volume 15, number 27, of the Florida Administrative Weekly. The notice also advised all interested persons that a public hearing would be held on August 3, 1989, before the Commission on the proposed rule. On August 3-4, 1989, the Commission held a public hearing at which time it considered the proposed rule. During the course of this hearing, the Commission approved the proposed rule with certain changes. These changes, as well as the complete rule text, were duly noticed in volume 15, number 35, of the Florida Administrative Weekly on September 1, 1989. Petitioner, Concerned Shrimpers of America, Inc., Florida Chapter, by petition filed with the Division of Administrative Hearings on July 28, 1989, timely challenged the proposed rule pursuant to Section 120.54, Florida Statutes, as an invalid exercise of delegated legislative authority. Petitioner and Intervenors Petitioner has, pursuant to stipulation of the parties, standing to contest the validity of the proposed rule. Intervenor, Center for Marine Conservation, Inc., is, pursuant to stipulation of the parties: ... a non profit environmental protection and education organization incorporated under the laws of the District of Columbia and authorized to do business in Florida. It has in excess of 7,000 members throughout the state. Its major purpose is the protection of marine wildlife for this and future generations, including sea turtles, for the benefit of the species, the corporation and its members... Members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Florida Audubon Society, is, pursuant to stipulation of the parties: ... a non profit Florida corporation with over 35,000 members within the state whose main purpose is to protect Florida's natural outdoor environment and wildlife, including the marine environment and sea turtles, for the benefit of the organization and its members. The members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Greenpeace-U.S.A., is, pursuant to stipulation of the parties: ...headquartered in Washington, D.C., [and] is the United States office of Greenpeace, an international environmental organization with offices in over twenty countries and approximately two and one-half million supporters worldwide. Greenpeace- U.S.A has more than one million supporters in this country, including over 60,000 who live in the State of Florida. Greenpeace- U.S.A. has two offices in Florida, located in Ft. Lauderdale and Jacksonville Beach.... On behalf of its members and threatened and endangered species, Greenpeace-U.S.A. places special emphasis on the preservation of marine species and the marine environment and has worked extensively for the protection of threatened and endangered marine animals. The sea turtle campaign is one of the principal campaigns of the organization.... For the past five years, Greenpeace-U.S.A. has operated the Beach Patrol Project. The Project seeks to maintain protected nesting areas for threatened and endangered sea turtles in the coastal areas of the southern United States. Based in the Jacksonville Beach office, the Project places approximately 250 Greenpeace-U.S.A. volunteers on Florida beaches every year. The Beach Patrol Project has also contributed to the conservation effort in its documentation and identification of species of sea turtles which have been stranded and washed ashore.... Intervenor, Florida League of Anglers, Inc., is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rule. The proposed rule The proposed rule at issue in this case prohibits the use of any trawl (net) in state waters that does not have a qualified turtle excluder device (TED) installed therein, as well as the possession aboard any vessel in state waters of a trawl rigged for fishing that does not have a qualified TED installed in it. Excepted from the rule, under specified conditions, are test nets, roller frame trawls, trawls used for experimentation purposes authorized by the National Marine Fisheries Service (NMFS), and trawls operated on the inside waters of the state. The purpose of the proposed rule is to protect sea turtles from extinction, primarily the endangered Kemp's ridley turtle, by reducing the incidental catch and mortality of sea turtles in shrimp trawls. 1/ Currently, five species of sea turtles occur in state waters. These species are the Atlantic green turtle (Chelonia mydas mydas); Atlantic hawksbill turtle (Erelmochelys imbricata imbricata); Atlanta ridley turtle (Lepidochelys kempi), also known as the Kemp's ridley; Leatherback turtle (Dermochelys coriacea); and Loggerhead sea turtle (Caretta caretta). Persuasive proof demonstrates that the incidental catch and drowning of sea turtles by shrimp trawls is a significant source of mortality for the species, and that absent the elimination of that mortality factor the green turtle, hawksbill turtle, Kemp's ridley turtle, leatherback turtle, and loggerhead turtle are threatened with extinction. 2/ Use of the TEDs mandated by the proposed rule will substantially reduce the incidental capture of sea turtles by shrimp trawls, and thereby eliminate shrimp trawls as a significant source of mortality for the species. Currently, the proposed rule permits the use of any one of six TEDs approved by the NMFS, which have demonstrated a turtle exclusion rate of at least 97 percent. The rule also permits the use of any TED that may subsequently be approved by the NMFS as demonstrating a turtle exclusion rate of at least 97 percent. 3/ The rule challenge In challenging the proposed rule, petitioner does not question the need for the rule to protect the sea turtles from extinction, nor the effectiveness of the TED to eliminate a significant threat to the survival of the species. Rather, petitioner contends that: (1) the Commission exceeded its grant of rulemaking authority, which will be discussed in the conclusions of law, infra; (2) that the Commission materially failed to follow the applicable rulemaking procedures set forth in section 120.54 by failing to notify the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce at least 21 days prior to the public hearing on the proposed rule, as well as by failing to prepare an adequate economic impact statement; and, (3) that the proposed rule contravenes the specific provisions of law implemented because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fisherman, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Notice regrading the impact of the proposed rule on small business Section 120.54(3)(b), Florida Statutes, mandates that where, as here, the proposed rule will affect small business, that "the agency shall send written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action." Here, the proof demonstrates that the Commission held its public hearing on the proposed rule, and approved it, on August 3-4, 1989, but that it did not provide written notice to the previously mentioned agencies until July 21, 1989, a date less than 21 days before the public hearing. While the Commission failed to accord the named agencies with the minimum 21-day notice mandated by section 120.54(3)(b), the proof fails to demonstrate that such failure constituted a material failure to follow the applicable rule making procedures. Here, the agencies never objected to the inadequacy of the notice; the agencies have never requested an opportunity to present evidence and argument or to offer alternatives regarding the impact of the proposed rule on small business; and there was no showing that the Commission's failure to accord the agencies the full 21-day notice impaired their ability to, or influenced their decision not to, participate in the rule making process. In sum, petitioner failed to demonstrate that the Commission's failure to accord 21 days notice to the named agencies resulted in any incorrectness or unfairness in the proposed adoption of the rule. The economic impact statement Pursuant to the provisions of Section 120.54(2)(b), Florida Statutes, the Commission prepared an economic impact statement for the proposed rule. The economic impact statement was prepared by Robert Palmer, the Commission's economic analyst, an expert in economics. Petitioner challenges the adequacy of the economic impact statement (EIS) prepared for the proposed rule by contesting its accuracy in some respects, its failure in other respects to address the costs to the agency for implementation of the proposed rule, and its failure to address the cost and economic benefit to persons directly affected by the proposed rule. Here, while it is arguable that the Commission's EIS could have been more thorough in some respects, the proof fails to demonstrate any material error that impaired the fairness of the rule making proceeding or the correctness of the Commission's decision to approve the proposed rule. Rather, the proof demonstrates that where errors or omissions occurred in the EIS that the Commission was supplied with the correct information at the public hearing, their impact was of de minimis import, or the costs and benefits were speculative or incapable of estimation. Compliance with statutory standards Pertinent to this case, Section 370.027(1), Florida Statutes, contemplates that the Commission will, in exercising its rule making authority, apply the policy and standards set forth in Section 370.025, Florida Statutes. In this regard, section 370.025 provides: The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, 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. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as head of the department shall 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, sociological, 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 such 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. Inconsistencies 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. (Emphasis added). Petitioner's final challenge to the validity of the proposed rule is its contention that the Commission's action in approving the proposed rule contravenes the provisions of section 370.025 because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fishermen, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Petitioner's contentions are not persuasive. First, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(h) because it is inconsistent with the federal regulation regarding the mandatory use of TEDs, the proof demonstrates that, due to the presence of sea turtles in state waters all year round, mandating the use of TEDs at only particular times of the year along certain areas of the coast, as the federal regulations do, would not achieve the Commission's preservation goal, and therefore would not be in the best interest of the sea turtles or residents of the state. Therefore, the Commission's action was not inconsistent with section 370.025(2)(h) Second, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(b) because it failed to consider the best sociological information available, section 370.025(2)(a) is informative since it mandates that any rule of the Commission be consistent, before all else, with the following standard: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Faced with persuasive proof that the incidental catch and drowning of sea turtles by shrimp trawls was a significant source of mortality for the species, and that absent the elimination of that mortality factor the species inhabiting state waters were threatened with extinction, the Commission reasonably concluded that it had two options to protect the sea turtles: to prohibit shrimp trawling in state waters or mandate the use of TEDs and permit shrimp trawling to continue. 4/ Such being the options, very little, if any, sociological information was necessary to support the Commission's conclusions that the mandatory use of TEDs, as opposed to a prohibition on shrimp trawling in state waters, would be the least disruptive management measure to the sociological structure of the shrimp fishing community. While almost irrelevant to the instant case, the proof does, however, demonstrate that the Commission had before it the pertinent sociological information it needed to appreciate the impact of the proposed rule on the shrimp fishery community. Such information included an appreciation of the fact that the shrimping community constitutes a societal segment, or self-contained entity, that is in large measure divorced from society in general; that unique familial relationships exist within the shrimp fishing community; that the mandatory use of TEDs had led to a feeling of uncertainty among shrimp fishermen concerning the continued survival of the industry; and that should shrimp fishermen experience significant losses as a consequence of the mandated use of TEDs that they may be forced from the shrimp fishing business, and their community and family relationships disrupted. Under the circumstances of this case, the Commission's action was consistent with section 370.025(2) (b).
Findings Of Fact Petitioner, Allied Marine Group, Inc., d/b/a Stuart Hatteras, Ltd. (Allied), is the largest dealer in new and used yachts in Florida. Its Dealer Registration Number is 16-03-232. It has 175 employees and sells yachts that range in price from $100,000 to $9,000,000. In 1993 Allied sold in excess of 300 yachts and realized gross sales of $60,000,000. The yacht sales business is very competitive. Allied's sales and marketing departments target the well-to-do who can afford expensive yachts and enjoy fishing and pleasure cruising. The target group subscribes to yachting magazines, visits boat shows, attends cruising activities, and participates in fishing tournaments. To reach these individuals in these activities, Allied spent $585,000 advertising in magazines including publishing its own magazine, "Makin Wake," $166,000 participating in boat shows, and $155,000 participating in fishing tournaments and other promotions for the fiscal year ending October 31, 1993. Allied's Vice President of Sales and Operations, Tom Sanders, and salesman Chris Cunningham actively market the sale of Allied's yachts by participating in fishing tournaments and boat shows because that is where the buyers are. Fishing tournaments and boat shows are "selling events" to Allied. Neither Mr. Sanders nor Mr. Cunningham was of the opinion that Allied could remain competitive in the yacht sales business by simply displaying vessels at showrooms and waiting for customers to come. Most yacht sales are made to customers who have purchased yachts in the past. The selling of a yacht is a process that involves many contacts with a customer before the customer actually makes a purchase. Customers rarely buy million dollar vessels on the spot. Purchasers of fishing yachts like to purchase from dealers who are knowledgeable about fishing. Participation in fishing tournaments and outfitting inventory boats for fishing is a way of showing a vessel's capabilities to potential purchasers and Allied's knowledge of fishing vessels. Allied often enters fishing tournaments to demonstrate the capabilities and amenities of its yachts to prospective purchasers for the ultimate purpose of selling the yacht entered and increasing overall sales. It outfits the vessel with elaborate decor and fishing equipment to attract customers. The salespersons participate in the fishing portion of the tournament in order to get access to the tournament functions where they can meet prospective purchasers at the captains' meetings, at the fish weigh-ins and other gatherings before and after each day's fishing, and at the awards ceremony at the end of the tournament. In addition to promoting the sale of the vessel entered, Allied and other dealers enter and sponsor fishing tournaments to give their salespersons opportunities to meet with potential purchasers and to keep the name of their products, company and salespersons in the public eye. Salespersons sell yachts by networking, that is, developing and maintaining one-on-one contacts with prospective purchasers. Salespersons make and maintain contacts by referrals from other customers, by hosting parties and by frequenting boat shows, fishing tournaments and other events that boat enthusiasts attend. There are different sizes and types of fishing tournaments, and a dealer's participation may vary depending on the tournament. Allied sometimes participates in fishing tournaments by providing a crew to actually fish. When a dealer enters a vessel in a fishing tournament, the fishing element is secondary to the opportunity the tournament presents for the dealer's salespeople to make contact with potential purchasers. The main reason Allied enters its yachts in fishing tournaments is to sell the yachts entered in the tournaments and to promote Allied as a dealer in vessels made for fishing. Yacht owners that see new models at fishing tournaments often trade up to that model or newer or larger vessels. Allied promotes its yachts and its business at fishing tournaments in the same manner as it does at boat shows: by displaying its products and by sending its salespersons to mingle with the attendees, to pass out business cards, and to provide information about its products and services. Allied always stocks yachts participating in fishing tournaments with literature concerning the particular vessel and the dealership including brochures about its yachts, specification sheets for the particular yacht, and business cards of the salespersons. Allied does not have any yachts, in inventory or otherwise, that are designated as demonstrators. Vessels that are outfitted and decorated to participate in particular boat shows or fishing tournaments are always for sale to customers during or after the event. In October, 1992 Tiara Yachts delivered a 43 foot sport fishing vessel to Allied for resale. The yacht is described as a 4300 Tiara Convertible and was delivered to Allied's Fort Lauderdale marina. Between October, 1992 and May 27, 1993, Allied displayed the vessel (the Tiara) at its marina showrooms in Fort Lauderdale, Stuart, and West Palm Beach. The Tiara was held by Allied as part of inventory for resale to customers and was so reflected on Allied's accounting books and records. The Tiara was floor plan financed, meaning the manufacturer loaned Allied 95 percent of the cost of purchasing the vessel and maintained a security interest in the vessel until its resale to a customer. The manufacturer made periodic and unannounced checks of Allied's inventory to verify that the vessel was actually in Allied's possession at one of its facilities and held for resale. On May 14 and 15, 1993, the Arthur Smith, Kingfish, Wahoo and Dolphin Fishing Tournament (the Tournament) was held in Palm Beach County. It is a large tournament which draws about 600 participants. Allied paid the $300 Tournament entry fee, hired a crew, provided the Tiara, and paid for all supplies. These expenses were charged to Allied's "Tournament and Promotion" account on its general ledger. Allied listed the Tiara on the Tournament entry form as the vessel to be used in the Tournament. The participants listed were Edward Sweigart, Chris Cunningham, Monty Braune, Jim Neill, Bob Wimmer, and Kimberly Kern. Allied's address in West Palm Beach was listed as the address for each participant; however, Allied's name was not referenced on the entry form. Allied did not obtain advertising in any medium prior to, during, or after the Tournament to announce the vessel's participation in the Tournament. Allied was not a Tournament sponsor and did not donate any prizes to the Tournament. No banners, flags, or pennants with Allied's name were displayed either on land or on the Tiara during the Tournament. The transom of the Tiara was marked with the vessel's make-and-model number, which read, "4300 Tiara Convertible." All rods and reels used on the vessel during the Tournament were the personal property of Allied's salesman Chris Cunningham. At no time was there a known prospective buyer present, either on land or upon the vessel, during or after the vessel's participation in the Tournament. Participation in the Tournament included fishing from the vessel by various participants. The participants on May 14 included Allied employees: Chris Cunningham, salesman; Monty Braune, yard worker; Edward Sweigart, boat washer; as well as non-employees; Ed Steffes; and Sweigart's girlfriend, Kimberly Kern. The participants on May 15 included Allied employees, Sweigart, Braune, and David McGee, service manager; as well as non-employees Steffes, Michael McGee and Bobby Wimmer. The attire of the May 14 participants was, in part, as follows: Sweigart wore a polo shirt bearing the "Tiara" logo; Cunningham and Kern wore "Palm Beach Hatteras" t-shirts; Steffes and Braune wore t-shirts without logos. The attire of the May 15 participants was in part, as follows: Sweigart wore a polo shirt bearing the "Tiara" logo; Braune wore a "Stuart Hatteras" shirt; David McGee, Michael McGee and Steffes wore shirts with no logo and Wimmer wore a "Hatteras of Palm Beach" t-shirt. At the Tournament, the weigh-in location for the larger boats (including the Tiara) was at a park where there were no facilities to dock the Tiara for display either before or after the day's fishing. Tournament participants weighing their fish at the park were required to pull up to the dock, off-load their catches and depart so that other participants could come to weigh their fish. Mr. Cunningham got off the Tiara at the weigh-in location and remained there to mingle with prospective purchasers while the captain and crew returned the Tiara to Soveral Marina where it was available for boarding by prospective purchasers. Soveral Marina was located approximately ten minutes or five miles away from the weigh-in location. Allied would have preferred to dock the Tiara at the Tournament location for easier access by prospective purchasers. Because this was not possible, displaying the Tiara at nearby Soveral Marina was a good alternative for making the yacht available to potential customers. Mr. Cunningham knew that some of his customers would be attending the Tournament and might be interested in the Tiara. He attended the Tournament's captains' meetings, weigh-ins and other gatherings and the awards ceremony at the end of the Tournament. During the Tournament gatherings Mr. Cunningham handed out business cards and brochures describing the Tiara. For catching the largest dolphin, Edward Sweigart was awarded a prize which consisted of cash, a boat, an outboard motor, and a boat trailer. The following participants were on stage during the May 16 awards presentation after Mr. Sweigart caught the biggest dolphin of the tournament: Mr. Sweigart, wearing a "Tiara" logo shirt; Mr. Cunningham, wearing a "Palm Beach Hatteras" shirt; and Ms. Kern, wearing a "Palm Beach Hatteras" shirt. Immediately after the Tournament, Mr. Sweigart took the prize boat and a dispute arose between Allied and Mr. Sweigart over who was entitled to the prize which culminated in a lawsuit by Allied against Mr. Sweigart. A newspaper article was published criticizing Allied for trying to recover the prize from Mr. Sweigart. The negative publicity surrounding Allied's participation in the Tournament caused Allied to downplay its participation in the event. As a result of the newspaper article, Steve C. Brown, Senior Tax Specialist with the Department of Revenue's (Department) Boat Enforcement Unit, conducted an investigation into Allied's entry and participation in the Tournament. Twelve days after the Tournament, on May 27, 1993, the vessel was sold to Mr. Arthur Levitan for the sum of $506,727.80. Mr. Levitan was not at the Tournament nor did he know the vessel had been in the Tournament. Six percent sales tax of $26,727.30 along with a luxury tax of $34,504.50 was collected from Mr. Levitan. The sales tax was paid to the Department of Revenue. As a result of Mr. Brown's investigation, the Department issued a Notice of Final Assessment for Tax, Penalty, and Interest Due on a Boat, dated January 18, 1994, for use tax in the amount of $27,000, plus a late filing penalty of $13,500 and interest as of January 18, 1994 of $1,801.50, which totaled $42,301.50. Allied protested the Assessment in a Petition for Reconsideration, dated February 7, 1994, in which it alleged: that the vessel was operated on behalf of Allied as part of its promotional activities and to expose the vessel to potential buyers. Allied further alleged that no use tax was due because the vessel was at all times part of Allied's inventory for sale to customers; that such use is consistent with the vessel being offered for resale and being maintained in inventory and that entry of the vessel into the tournament was at all times solely for the purpose of promoting the sale of this vessel, Tiara Yachts, and Allied. It was also alleged that there are no rules or statutes that support the Department's assessment of use tax for vessels for resale. The Department rejected the facts and arguments in the Petition and upheld the Assessment in a Notice of Reconsideration, dated July 7, 1994, in which it concluded that the vessel was: removed from inventory and used in an activity inconsistent with it being offered for resale; that such "use" of the vessel fell within the statutory language of Section 212.02(20), Florida Statutes; that the use of a vessel held in inventory for resale and used in the manner set forth in the facts of this case constitute a taxable use, as there is no rule or statute that allows a dealer an exemption for such use. The Department's Special Programs Unit is charged with collection and enforcement of sales and use tax, especially with respect to boats. The Special Programs Unit was created by L. Lamar Gay in 1983 and was headed by Mr. Gay from its creation through June, 1989. Mr. Gay developed the policy for the unit and was responsible for hiring Steve Brown in November of 1980. From the inception of the Special Programs Unit through Mr. Gay's tenure as an assistant bureau chief and head of that unit, the Department's interpretation of the term "use" for use tax purposes was that it did not include participation of an inventory vessel in a fishing tournament. According to Brown, it is presently the policy of the Department that the promotion of vessels at boat shows by dealers is not a taxable use. The Department has not issued use tax assessments to dealers participating in boat shows.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assesing Allied Marine Group, Inc., for payment of use tax in the amount of $27,000 plus interest incurred as a result of the participation of one of its inventoried vessels in the Arthur Smith, Kingfish, Dolphin and Wahoo Fishing Tournament of May 14-15, 1993. DONE AND ENTERED this 19th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of November, 1996. COPIES FURNISHED: Albert J. Wollermann, Esquire Mark T. Aliff, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Craig D. Olmstead, Esquire Jane W. McMillan, Esquire Kelley, Drye and Warren 201 South Biscayne Boulevard, Suite 2400 Miami, Florida 33131 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but respondent filed a motion for continuance which was granted by the Hearing Officer and the hearing was rescheduled for January 18, 1978. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that respondent had adequately been placed on notice as to the nature of the offense charged and due to the fact that the Notice to Show Cause had been sent by certified mail to respondent and that the receipt thereof on August 13, 1977, by an authorized agent of respondent was not contested. Further, respondent's motion for continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.
Findings Of Fact Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle, 515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l) An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3) On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office. However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin. This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately 15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized 265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)
Recommendation That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley,. Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Facts admitted by all parties The water quality standards contained in Rule 17-3.111, Florida Administrative Code will not be violated by this project. There are no aquatic macrophytes located in the area of the proposed project. The proposed project is located within 500 feet of the incorporated municipality of Horseshoe Beach, Florida. The proposed project is located within Class II waters of the State not approved for shellfish harvesting. The project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed project will be of a permanent nature. The project will not adversely affect or will not enhance significant historical or acheological resources under the provisions of Section 267.061, Florida Statutes. The rest of the findings The Applicant, Dixie County, applied for a dredge and fill permit to construct a dock which would expand the existing public dock at Horseshoe Beach. In accordance with the revised plans dated October 23, 1986, the proposed facility would consist of a pier 6 feet wide and 120 feet long designed to accommodate six boat slips, each 30 feet wide and 40 feet long. The boundaries of the boat slips will be demarcated by pilings set 10 feet apart. Four of the boat slips would be primarily for the use of commercial fishing boats and commercial shrimping boats. The other two boat slips (the two slips closest to the land) would be reserved for the exclusive use of recreational and other small vessels. By adding a catwalk 3 or 4 feet wide down the middle of the two slips reserved for recreational vessels, the usefulness of those slips to recreational vessels would be greatly enhanced and the narrowness of the resulting slips would preclude their use by large vessels. Adding the two catwalks would be a minor addition to the proposed project which would greatly enhance the usefulness of the project and at the same time avoid the possibility that large vessels in the two slips closest to the land would impede ingress and egress at the nearby boat lift, boat fueling facility, and boat ramp. Adding a reasonable number of permanent trash or garbage containers would also enhance the usefulness of the proposed project and minimize the possibility of improper disposal of trash and garbage which is generated by the normal use of a dock by fishermen and boaters. The proposed project site is located in the Gulf of Mexico at Horseshoe Beach, Florida, and would extend into the waters of the Gulf, which is a tidally influenced water body adjacent to Dixie County, Florida. The water along the shoreline of the area is shallow for a considerable distance waterward, except where basins and channels have been dredged. The Horseshoe Beach area is relatively unpolluted. The existing public dock at Horseshoe Beach is used primarily by recreational vessels, but there is also extensive commercial fishing and Shrimping boat activity in the area. The project is located at the mouth of a canal with direct access to the Gulf. Several commercial fishhouses operate from the canal bank, which generates extensive commercial boat traffic past the proposed project site. Large numbers of commercial shrimp boats presently dock along the canal that ends near the proposed project site. The proposed project requires no dredging. The only filling required by the proposed project is the placement of pilings into the bottom of the Gulf of Mexico. Even though the plans do not specify whether concrete or wooden pilings will be used, this lack of specificity in the plans is irrelevant. Regardless of what types of pilings are used on this project, the filling activity will not violate the water quality criteria contained in Rule 17- 3.051(1), Florida Administrative Code. The placement of the pilings will not adversely affect the public health, safety, and welfare. Further, the proposed project will not adversely affect any property interests of the Petitioners within the scope of Chapter 403, Florida Statutes. The Gulf bottom in the area of the proposed project has already been disturbed. The presently existing suspension of particulate material in the water column, a natural occurrence in the area of the project, results in low visibility which means that seagrass beds and other marine vegetation, which provide shelter and detrital deposits for fish and other marine resources, will not grow. Coast Guard regulations prohibit commercial fishing vessels from depositing materials into the water within three miles of the coast line. Commercial fishing vessels must prominently display a sticker reciting that regulation and it is the practice of commercial fishing vessels operating in the vicinity of Horseshoe Beach to comply with this Coast Guard no discharge requirement by cleaning nets and scrubbing decks outside the three mile limit. It is not the practice of Commercial fishing vessels to deliberately discharge diesel fuel, fish parts or other material into the water while docked. Further, the limited number of commercial fishing vessels which could dock at the proposed facility at the same time cannot reasonably be expected to create discharges in amounts creating a nuisance, posing any danger to the public health safety or welfare, or violating the water quality criteria contained in Rule 17-3.051(1), Florida Statutes. Although small amounts of diesel fuel can become mixed with bilge water and be discharged by automatic bilge pumps while commercial fishing vessels are docked, there is no evidence that this would be in amounts Sufficient to create a nuisance or violate water quality criteria. To the contrary, notwithstanding a large amount of commercial boat traffic past the proposed site and notwithstanding the fact that large numbers of shrimp boats dock up the canal from the proposed site, the water in the area of the proposed site has remained relatively unpolluted. The proposed project will not affect the normal wind and wave action in the area of the proposed project. Such wind and wave action presently results in free exchange between the waters of the open Gulf and the waters near the shore. This free exchange of waters means that any pollutant discharges in the area of the proposed project will be diluted and rapidly dispersed into the Gulf of Mexico. There will be no measurable difference in the wind and wave action, or in the water exchange, after the proposed project is built. No harmful shoaling or erosion is expected to result from construction of the proposed project. Any docking structure extending out into the Gulf of Mexico will obviously have some effect on navigation in the area of the dock, but there is no evidence that the proposed dock will present a hazard to navigation or any significant interference with customary navigation patterns. The distance between the nearest channel marker and the waterward end of the proposed project is more than 200 feet. The angle of the proposed dock and its Spatial relation to the main Horseshoe Beach turning basin cause no impediment to navigation. The placement of Coast Guard Safety lights on the dock would minimize any potential for impeding navigation or posing a danger to the public health or safety during hours of darkness.
Recommendation Based on all of the foregoing, I recommend that the Department of Environmental Regulation issue a Final Order in this case granting the permit applied for by Dixie County. It is also recommended that the permit be made subject to the following additional conditions: That one or more Coast Guard safety lights be placed on the proposed expansion to the dock; That catwalks be added down the middle of the two most landward of the proposed boat slips; and That a reasonable number of trash or garbage receptacles be permanently located on the proposed expansion to the dock to minimize the possibility of trash and garbage being thrown overboard. DONE AND ENTERED this 30th day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1448 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The paragraph numbers referred to below are references to the paragraph numbers in the parties' respective proposed recommended orders. Ruling on findings proposed by the Petitioners: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: First sentence is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than a proposed finding of fact. Second and third sentences are rejected as repetitious Paragraph 5: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 6: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 7: Rejected as contrary to the greater weight of the evidence. Paragraph 8: Entire paragraph is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than proposed findings of fact. Paragraph 9: Entire paragraph rejected as contrary to the greater weight of the evidence; construction of the dock may be expected to bring about some changes in the nature of the boat traffic in the immediate area, but nothing of the nature or magnitude suggested by these proposed findings. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Paragraph 11: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in part and rejected in part. Rejected portion is irrelevant. Third sentence is rejected as irrelevant. Fourth Sentence is accepted. Fifth sentence is rejected as contrary to the greater weight of the evidence and as repetitious Sixth sentence is rejected as contrary to the greater weight of the evidence. Paragraph 12: Entire paragraph rejected as contrary to the greater weight of the evidence. Rulings on findings Proposed by the Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: First two sentences accepted in substance. Last sentence rejected as irrelevant. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Rejected as unnecessary recitation of opposing party's contentions and not proposed finding of fact. Paragraph 8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Accepted in substance. Paragraph 12: Accepted. Paragraph 13: First sentence accepted in substance. Second sentence accepted in part and rejected in part; rejected portion concerns riparian rights, which are irrelevant to whether this permit should be issued. Paragraph 14: Entire paragraph rejected as irrelevant. Paragraph 15: Accepted in substance. Paragraph 16: Accepted. Paragraph 17: Accepted in substance. COPIES FURNISHED: Frederick M. Bryant, Esquire Moore, Williams & Bryant, P.A. Post Office Box 1169 Tallahassee, Florida 32302 J. Doyle Thomas, Esquire County Attorney Post Office Box 339 Cross City, Florida 32628 Ann Cowles-Fewox, Legal Intern Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Karen Brodeen, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301 Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Respondent, the Department of Labor and Employment Security, had the sole authority to administer the Net Ban Assistant Program enacted in Section 370.0805, Florida Statutes. For purposes of this record, this program has been called the net buy-back program (or the program). The Petitioner, Stephen E. English, is a fisher who filed an application for assistance under the buy-back program on July 5, 1995. The Department received applications from many fishers who sought to participate in this program. Those fishers who were deemed eligible to receive assistance from the program were notified of a time and date certain to present their nets for buy-back. The Department advised all fishers that their claims would be processed on a first come, first served basis. The initial estimate of the total buy-back expense to the Department (and the assumption that the fund was sufficient to cover same) was based upon the types of nets listed on the buy-back applications which had been filed. For example, Petitioner listed that he would be selling 5,000 yards of gill net (49 meshes or less); 5,000 yards of gill net (50 meshes or more); 1,000 yards of beach, purse or seine net; and 4,000 yards of trammel net. Based upon the foregoing information, when the Department reviewed the Petitioner's application and the amounts applicable to each type of net was computed, it was presumed Petitioner would receive approximately $25,000.00 for his nets. This process was repeated for all applications filed and led the Department to believe that, based upon what the fishers had described in their applications, there would be sufficient funds to pay all fishers who were deemed eligible for all nets listed in their applications. When the Department made the decision to set appointments for the buy- back program it erroneously presumed the fishers would turn nets in as described in the applications. Therefore, although the appointments were to be on a first come, first served basis (based upon the date and time of the filing of the applications), the appointments were scheduled at various sites around the state on the basis of when applications were turned in, what nets were expected to be received, and total volume of work a location could be expected to do on a given day. Several buy-back sites were selected in an effort to accommodate the fishers hauling their nets in for sale. Had the Department used only one buy- back site, and set the appointments by time only, fishers traveling long distances to turn in their nets would have been inconvenienced. Delays inherent in the process of waiting for identification of nets and receiving them by the Department would have been greater than those incurred at the multiple sites. Since the Department did not expect any site to be able to handle more than 80 nets per day, the numbers of nets expected to be turned in also affected the scheduling of the appointments. None of these minor deviations from the first come, first served policy would have effected the buy-back program had the fishers, in fact, turned in nets according to their applications. That did not happen. Instead, when fishers presented nets for buy-back on the first days of the program in August, 1995, they turned in huge volumes of seine nets. The buy-back amount for a seine net was much greater than the other types of nets. As a result, the claims to the buy-back fund greatly exceeded the amounts initially computed by the Department. In fact, it became apparent that the fund could not repay fishers for all seines expected to be turned in. This impacted Petitioner because the first appointments for the buy- back program at Petitioner's buy-back site (Stuart or Salerno) began on September 5, 1995. Petitioner's appointment was for September 7, 1995 at 8:00 a.m. By September 5, 1995, the Department was in the process of evaluating claims and stopping the buy-back program. On September 6, 1995, at 5:00 p.m. the Department called a halt to the buy-back at all sites. On September 6, 1995, before the buy-back program was stopped, Petitioner attempted to sell his nets. He was advised by the Department's agents at the buy-back site that he would not be allowed to turn in his nets until his appointment time. Petitioner observed others, who had appointment times after his, being allowed to turn in their nets on September 6, 1995. The Department refused to purchase Petitioner's nets on September 6, 1995. The net purchase process can be described as follows: a fisher presented the net for purchase, it was identified by type, measured over a roller, and a voucher receipt issued. This procedure was repeated for each type of net turned in until all nets from a fisher were processed. Although unexpected by the Department some buy-back locations were able to process more than 80 nets per day using the described procedure. After the buy-back program was resumed, Petitioner was permitted to sell his nets but was advised he would only be paid for 1,200 yards of seine nets (the amount shown on his application). Petitioner was advised that the remainder of his nets would be acceptable in any other type other than seine net. Consequently, Petitioner was paid as follows: $11,608.68 for trammel nets, $6,999.60 for seine nets, and $10,382.51 for gill nets (50 meshes or more). Thus, the total Petitioner received for his nets was $28,990.79. The underlying problem with the buy-back program was caused when fishers who turned in nets ahead of Petitioner altered their nets to claim reimbursement as seine nets. Since the appointment letters did not advise fishers that they would only be able to sell the nets described on their applications, the fishers took advantage of the definition of "seine" net as then in effect and presented "seine" nets at the buy-back locations. In response to this definition issue, the Department enacted an emergency rule, 38BER95-1, to define the types of seine nets more particularly so that the integrity of the buy-back program was assured. Persons who were given vouchers for their "seine" nets who were later disallowed have filed a class action lawsuit against the Department. Petitioner did not receive a voucher for his nets on September 6, 1995, so he is not a member of the class action suit. Petitioner maintains he should have received a voucher for his nets on September 6, 1995; that he was treated differently than others whose nets were purchased at his site on September 5 and 6, 1995; and that he has been damaged and should receive a voucher from the net buy-back program in the amount of $55,000.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order denying Petitioner's claim for additional compensation based upon the nets returned under the buy-back program, and dismissing Petitioner's request for a voucher or to make him a member of the class action lawsuit. DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 20th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5781 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 6, and 14 through 17 are accepted. Paragraphs 7 through 13, 18 and 19 are rejected as contrary to the weight of the credible evidence, argument, or irrelevant. Further, it is concluded that Petitioner had no vested right to sell his nets before 8:00 a.m. September 7, 1995. Since the program had been suspended by that time, he was compensated according to the rules and his application at the next appointment date and time. Thus, he was paid all monies contemplated under his original application. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 18, and 22 through 38 are hereby accepted and adopted by reference. With regard to paragraph 19, it is rejected as repetitive. With regard to paragraph 20, it is rejected as irrelevant. With the correction to September 6, 1995 at 5:00 p.m., paragraph 21 is accepted. The Department bought no nets on September 7, 1995. COPIES FURNISHED: Louise T. Sadler, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2189 Stephen E. English, pro se Post Office Box 814 Port Salerno, Florida 34992 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
The Issue The issue is whether the Respondents’ decision to award a landscaping maintenance contract to Cornerstone Tree Farm, Inc., is arbitrary or capricious.
Findings Of Fact The Districts are local units of special-purpose government authorized by Chapter 190, Florida Statutes (2008).1 Fishhawk Community Development District was established by Hillsborough County Ordinance No. 96-24, dated September 12, 2006. Fishhawk Community Development District II was established by Hillsborough County Ordinance No. 02-23, dated December 10, 2002. The Districts issued the RFP for landscape maintenance for the common area within the Districts. Addendum No. 1 was issued on June 23, 2008, and included a revised Section IV, which contained the scope of services and “general maintenance conditions/specifications.” Section I of the RFP provides: The purpose of this bid proposal is to arrive at a total lump sum bid amount and to determine the monthly maintenance of the landscaped areas as described in the Scope of Services. All responses must itemize the cost of each of the items described in the Scope of Services in Section IV (break out all costs such as the # of mowing by month and $ value by month etc.). Only those items specifically indicated in the Landscape Services Agreement and Scope of Services documents, shall be included in the bid amount. * * * The scope of work for this bid shall include mulching, planting of annuals, mowing of all grassy areas, trimming of all trees and shrubs, fertilizing and pruning of all landscaping, pest control and disease, weed control, edging, and inspection as outlined in the Landscape Services Agreement and the Scope of Services and the response must include all items described in the scope of work attached and described in Section IV. Section I of the initial RFP provides: Basis of Award/Right to Reject: The owner reserves the right to reject any and all bids, make modifications to the work, and waive any minor informalities or irregularities in Bids as it deems appropriate. The evaluation criteria (Exhibit B) will be used to evaluate the proposals. * * * The Bids will be evaluated based on the evaluation criteria in Exhibit B. The bids will be evaluated by the Fishhawk CDD & Fishhawk CDD II Board Members. The District shall select the lowest responsive and responsible bidder in accordance with this Invitation to Bid and the Fishhawk CDD & Fishhawk CDD II Rules of Procedure. Subsection 4.3(2)(f) of the Districts’ Rules of Procedure provide the following concerning contracts for maintenance services: In determining the lowest responsive and responsible bidder, the District Representative may consider, in addition to the factors described in the Invitation or request, the following: The ability and adequacy of the professional personnel employed by each bidder or proposer. The past performance of each bidder or proposer for the District and in other professional employment settings. The willingness of each bidder or proposer to meet time and budget requirements. The geographic location of each bidder or proposer’s headquarters or office in relation to the project. The recent, current, and project workloads of the bidder or proposer. The volume of work previously awarded to each bidder or proposer. Whether the cost components of each bid or proposal are appropriately balanced. Whether the bidder or proposer is a certified minority business enterprise. The Lowest Responsive and Responsible Bid/Proposal shall be accepted; however, the Board shall have the right to reject all bids, either because they are too high or because the Board determines it is in the best interests of the District. Addendum I, included the original advertisement of the RFP, provides the following: The District reserves the right to reject any and all bids with or without cause, award bids in total or in part, to waive technical errors or information, and to select the proposal determined by the District, in its sole discretion to be the proposal most advantageous to the District. It is unclear why the advertisement was issued as an addendum to the RFP. It is clear, however, that based on the Districts’ rules and the provisions of the RFP, the contract was to be awarded to the lowest responsive and responsible bidder. Subsection 1.0(2) of the Districts’ Rules of Procedure provides that “[d]efinitions located within any section of the Rules shall be applicable within all other sections, unless specifically stated to the contrary.” The definitions contained in Sections 4.1(2)(c) and (d) define “responsive bid/proposal” and “lowest responsible bid/proposal” as follows: “Responsive bid/proposal” means a bid or proposal which conforms in all material respects to the specifications and conditions in the invitation to bid or request for proposal and these Rules, and the cost components of which are appropriately balanced. A bid/proposal is not responsive if the person or firm submitting the bid fails to meet any requirement relating to the qualifications, financial stability, or licensing of the bidder. “Lowest Responsible bid/proposal” means, in the sole discretion of the Board, the bid or proposal (i) is submitted by person or firm capable and qualified in all respects to perform fully the contract requirements and with the integrity and reliability to assure good faith performance, (ii) is responsive to the invitation to bid or request for proposal as determined by the Board, and (iii) is the lowest cost to the District. Minor variations in the bid may be waived by the Board. Mistakes in arithmetic extension of pricing may be corrected by the Board. Bids may not be modified after the opening. Section 4.5 of the Districts’ Rules of Procedure deals with the procedures for purchasing contractual services and provides that "[a]ll purchases for contractual services (except for maintenance services) may, but are not required to, be made by competitive Invitation to Bid.” Subsections 4.5(2)(d) and (e) of the Districts’ Rules of Procedure define “responsive bid or proposal” and “lowest responsible bid or proposal” as follows: “Responsive bid or proposal” means a bid or proposal which conforms in all material respects to an Invitation to Bid or Request for Proposal and these Rules, and whose cost components are appropriately balanced. A bid or proposal is not responsive if the person or firm submitting the bid or proposal fails to meet any requirement relating to qualifications, financial stability, or licensing of the bidder or proposer. “Lowest responsible bid or proposal” means, as determined in the sole discretion of the Board, the bid (i) is submitted by a person or firm capable and qualified in all respects to perform fully the contract requirements who has the integrity and reliability to assure good faith performance, (ii) is responsive to the Invitation to Bid or Request for Proposal as determined by the Board, and (iii) which is for a cost to the District deemed reasonable by the Board. Minor variations in the proposal may be waived by the Board. Mistakes in arithmetic extension of pricing may be corrected by the Board. Bids may not be modified after opening. According to Debby Bayne, who was managing the bid solicitation of the Districts, the definitions of “responsive bid/proposal” and “lowest responsible bid/proposal” contained in Section 4.1 of the Districts’ Rules of Procedure applied to the procurement of maintenance contracts such as the one at issue. The bids were to be evaluated in five areas: personnel, experience, the bidder’s understanding of the scope of work, financial capacity, and price, and each area was assigned points. The RFP provided the following evaluation criteria: Personnel (E.g., skill set and experience of key management and assigned personnel, particularly the project manager; present ability to manage the project; proposed staffing levels, etc. Skill set includes certification, technical training, and experience with similar projects.) 20 Points Experience (E.g., past record and experience of the respondent in similar projects, volume of work previously awarded to the firm; past performance in any other contracts; character; integrity, reputation, references of respondent, skilled labor force assigned, inventory of all equipment and year of equipment, etc.) 25 Points Understanding of Scope of Work Does the proposal demonstrate an understanding of the District’s needs for the services requested? Does it demonstrate clearly the ability to perform these services? Were any suggestions for “best practices” performances included? Do you have additional skilled manpower to provide this service? 20 Points Financial Capacity Demonstration of financial resources and stability as a business entity necessary to implement and execute the services required. If all financial information is not provided, Proposer will earn no more than five (5) points. 5 Points. Price 30 Points Section I of the RFP provides the following for the awarding of points for price: Price--Will be awarded to the Proposer submitting the lowest bid for completing the work for the initial term of the contract. All other proposals will receive a percentage of this amount based upon the difference between that Proposer’s bid and the low bid. Although the RFP provided for the award of points to the bidders based on the evaluation criteria, nowhere in the RFP does it state that the contract will be awarded to the bidder who receives the highest number of points. The RFP did not provide that a bidder had to garner a certain number of points to be considered responsive and responsible. The RFP provided that the contract award would be made to the lowest responsive and responsible bid/proposal. The bidders who were responding to the RFP were required to submit a lump sum price for the work to be performed pursuant to the contract. The lump sum amount was to be set forth on the bid form contained in Section II of the RFP. The bid form also required that the bidders “include an itemized schedule of each monthly service by cost.” Section IV of the RFP provides the following specifications for the planting of annual flowers and the mulching of planting beds and tree rings: Variety and Rotation Schedule: The annual bed plantings of flowers at Fishhawk Ranch shall be maintained with year round color. Seasonal rotations of four (4) different “crops" are required by the Landscape Contractor each year (Approximately 15,000 plants). Plants shall be in 4” pots and planted at 10” on center (tip to tip) in staggered rows throughout the bed area. The owner’s representative and the Contractor shall determine the flower varieties. The annuals are to be contract grown with an approved grower. * * * Mulching: All shrub planting beds and tree rings shall be maintained with a minimum 3” thick layer of medium sized pine bark nuggets as the mulch product. In some areas pine straw is currently used and is allowed; however, pine bark mulch throughout Fishhawk Ranch shall be re-mulched once per year to remove decaying, matted material and allow for fertilizer to penetrate to the shrubs root zone. The new mulch is to be installed in December and January. The specifications for the mulch did not include a specific amount that was to be applied. The contractor was to apply however much mulch it took to maintain a three-inch layer of mulch at all times and to replace the mulch entirely once a year. The RFP did not call for a unit price to be bid for mulch, nor did the RFP require the bidders to state a certain amount of mulch that would be applied. The specifications for the planting of annuals provided the amount of annuals as an estimate. The contractor was to provide sufficient annuals so that four-inch pots of annuals could be planted in the beds on ten-inch centers in staggered rows four times per year. The RFP did not call for a unit price for the annuals. Eight responsive bids were received by the Districts in response to the RFP. Greenbriar and Cornerstone were among the responsive bidders. Both Greenbriar and Cornerstone were determined to be responsible bidders. The lump sum bid by Greenbriar was $664,389.00. In the price itemization required by Section I and the bid form of the RFP, Greenbriar listed the monthly cost of mulch at $2,987.75 for an annual cost for mulching of $35,853.00, representing 918 cubic yards of mulch. Under the itemization for the bedding plants, Greenbriar listed 15,000 annuals per rotation of bedding plants for an annual total cost of $84,140.00. The lump sum bid by Cornerstone was $691,428.27. Cornerstone itemized the annual cost of mulch as $103,125.00, which represented 2,750 cubic yards of mulch. Cornerstone listed the cubic yard price of the mulch as $37.50. Cornerstone listed the annual cost of the bedding plants as $91,000, which represented four rotations of 13,000 annuals at a price of $1.75 per annual. The itemized price for mulch for the other bidders ranged from $46,200.00 to $66,300.00 with the average price of $57,250.00 for the other bidders. Greenbriar's pricing for mulch was more in line with the amount of the other bidders than the pricing of Cornerstone. The proposals were provided to the members of the Board of Supervisors for the Districts. The board members reviewed the proposals and in some cases investigated the experience and references of the bidders. On July 11, 2008, the Districts’ board members met to consider the proposals received in response to the RFP. Some board members were concerned about the wide discrepancy of the price of mulch for Cornerstone and for Greenbriar. A suggestion was made to delete the cost of the mulch in order to compare the eight proposals. The board members were told to evaluate the proposals without considering the cost of the mulch. The only evaluation category that would have been affected by deleting the mulch was price. The board members evaluated the bids without including the cost of mulch, except for at least one board member who did include the cost of mulch in his evaluation. Based on the evaluations, Cornerstone received the highest ranking, and Greenbriar was next in line. The board members voted to award the contract to Cornerstone and authorized the negotiation with Cornerstone for the amount of the mulch. The unit price for mulch listed in Cornerstone’s bid would be included in the contract as well as the unit price included for annuals. Thus, the final amount of the landscape maintenance including mulch would not be known until negotiations were completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the protest of Greenbriar. DONE AND ENTERED this 11th day of September, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 11th day of September, 2008.
Findings Of Fact Petitioner, James Kashou (Kashou), is the executive vice president and authorized representative of Vilano Ventures, Inc., (Vilano) the riparian owner of property situated on the east bank of the Tolomato River, in North Beach, St. Johns County, Florida. The area of the Tolomato River adjacent to the Vilano property has been classified as approved for shellfish harvesting. Rule 16R-7.004, Florida Administrative Code. The Respondent, State of Florida, Board of Trustees of the internal improvement Trust Fund (the Trustees), is the agency of the State empowered to manage state lands and to grant easements to riparian owners for the use of sovereign-owned submerged lands. On or about April 11, 1985, a request was submitted to the Trustees, on Vilano's behalf, for authorization to construct two access channels connecting the Tolomato River to a proposed multi-slip docking facility. On or about August 24, Kashou filed a new request reflecting modifications to the proposed marina project. The access channels are each to be 100 feet long by 50 feet wide and will require the dredging of 2,000 cubic yards of sovereign- owned submerged lands. The docking facility to which the channels provide access is to consist of 34 boat slips and will be of interior design--that is, it will be constructed entirely from privately owned uplands. Each slip will be assigned to a particular vessel owned by a unit owner in the adjacent multi- family residential project being developed by Vilano. The adjacent residential development will include 294 residential units. In an effort to minimize any potential adverse impacts which could result from the 34 slip marina, Vilano intends to provide a sewage pump out facility at the marina. The pump-out facility will not include a holding tank, but will, instead, convey all sewage directly into the collection lines of North Beach Utilities, a 300,000 MGD wastewater treatment system. The pump-out system will be stationary and will be maintained on a regular basis. The marina will also be located within 200 yards of upland restroom facilities and live-aboards will not be allowed. Any boat having a toilet facility on board will be required to utilize a Type III device--that is, a marine sanitation device which permits no through-the-hull discharge of sanitary wastes. Furthermore, the marina will neither provide refueling nor maintenance facilities. In order to ensure continued compliance with these precautionary measures, Vilano will allow the Marine Patrol and other state personnel to have access to the marina for purposes of inspection. Vilano will also verify the compliance of individual boats at the time slips are assigned and will require continued maintenance of amenities and adherence to precautionary measures, such as the pump-out facility, through its sales agreements and through the existing homeowners' organization. These various compliance and precautionary measures do not now exist in the referenced documents. Despite the design and operation precautions proposed by Kashou on Vilano's behalf, the Trustees' staff (the staff of the Division of State Lands, in reliance on the Division of Marine Resources (Marine Resources) assessment and recommendation on potential impacts on shell fishing areas) concluded that the marina would necessitate the closure of shellfish harvesting areas adjacent to the project. As a result, the Trustees' staff proposed to deny Kashou's request for an easement to dredge the two access channels to the marina. It is from this proposed denial that the extant proceeding was instituted. The Department of Natural Resources has the responsibility for opening and closing Florida waters to shellfish harvesting. Rule 16R-7.005, Florida Administrative Code. These activities are conducted by the Shellfish Environmental Section (SEAS) of the Bureau of Marine Resource Regulation and Development within the Division of Marine Resources. The SEAS is not a permitting agency. The SEAS is asked by other regulatory and permitting agencies for its comments as to the effect of proposed activities or projects on shellfish harvesting waters. POTENTIAL IMPACT OF THE MARINA ON SHELLFISH HARVESTING AREAS The overriding factual issue pertinent to this proceeding is whether the proposed marina will so adversely impact adjacent shellfish resources as to require that the area be reclassified to prohibit shellfish harvesting. Kashou contends that there is no reasonable basis for projecting such a result, while Marine Resources--and, as a consequence, the Trustees--disagree. The area adjacent to the proposed marina does not support a commercially-harvestable number of shellfish. Rather, only small numbers of oysters and clams inhabit the Tolomato River at that location. Nevertheless, the area is classified as approved for shellfish harvesting. When assessing the potential impact of a marina on shellfish, the pollutants of concern are hydrocarbons, trace metals, and fecal coliform. High levels of hydrocarbons can result in shellfish fatalities. Hydrocarbons in the water can also taint shellfish so that they become distasteful to the consumer. Trace metals pose a public health concern in that shellfish can accumulate such substances in their tissue. At high enough tissue levels, such contaminated shellfish can threaten the health of the consumer. A marina,such as the proposed Vilano project, which provides dockage for no more than thirty-four boats, does not offer fueling, repair, or maintenance services, and is well flushed, will cause minimal, if any, adverse impact on shellfish or their consumers as a result of hydrocarbons and trace metals. Fecal coliform, themselves, do not represent a public health risk. However, since the 1920's, fecal coliform have been utilized as an indicator species to measure the presence of a range of human pathogens. Specifically, fecal coliform thrive in the intestinal tracts of warmblooded animals and, in particular, prefer human body temperatures. At present, fecal coliform levels offer the best measure of the level of all human-derived bacterial pathogens. Although viral pathogens do not behave in a manner similar to that of bacterial pathogens, statistical analysis has established that, when fecal coliform levels in a water body do not exceed a median most probable number of 14 fecal coliform per 100 milliliters and no more than 10 percent of the samples reflect a most probable number of 43 fecal coliform per 100 milliliters, (the 14/43 standard) the chances of contacting any illness from the consumption of shellfish taken from such waters are very slim. There is no standard or test available to determine the presence of viral contamination. Fecal coliform are measured in terms of their most probable number (MPN), which is a statistical reflection of the number of bacteria that are found through a series of dilution tests. This method of testing for fecal coliform is environmentally conservative because, during the testing process, fecal coliform taken from stressed environments become rehabilitated. The water quality criteria for fecal coliform adopted by both the Department of Environmental Regulation and the Department of Natural Resources for waters approved for shellfish harvesting is, in part, based upon a determination of the median level of fecal coliform detected in "a large number of samples taken over a large number of days under a large number of different climatic conditions." A median value is the value which falls in the middle of a series of values. It reflects the central tendency of the data and must be differentiated from the average of the data. Where the data reflects a large number of very low numbers and a few spikes, or high numbers, an average value would be skewed toward the spikes. The median value, in contrast, does not reflect this skewing and would be lower than the value obtained by merely averaging the quantities collected. For instance, the data collected at one of the sampling stations adjacent to the proposed marina, Station 101, reflects samples collected and fecal coliform levels measured on 32 separate days. Values range from an MPN of 2 per 100 milliliters to 11 per 100 milliliters. When the 32 values are averaged, it can be seen that the average recorded fecal coliform level for that sampling station was an MPN of 3.2 per 100 milliliters. However, the median value of the 32 samples is merely the value which falls in the middle of the data--that is, the value which falls between the sixteenth and the seventeenth recorded value. For station 101, the median is an MPN of 2 fecal coliforms per 100 milliliters. Fecal coliform are adversely affected by high salinities and die off at increased rates as salinities increase. At salinities of 35 parts per 1000, 50 percent to 100 percent of fecal coliform present would be expected to die-off within 24 to 36 hours. In clear water, on a bright day, die-off rates in highly saline water would be in the order of 90 percent in less than 24 hours. At salinities of 19 parts 1000, which is more typical of an estuarine environment, fecal coliform would perish at a rate of from 50 percent to 75 percent in a 48 to 72 hour period. The Tolomato River at the project site is an estuarine system. An estuary is a body of water in which saltwater and freshwater mix and in which there is transition between a freshwater and marine environment. The river water in the project vicinity is primarily saline, with salinity values at the closest reported sampling stations ranging from 19.0 to 35.0 part per 1000 and averaging 31.6. A salinity value of 35 is akin to oceanic salinity levels. Fecal coliform are also adversely impacted by temperatures which diverge from 98.6 degrees Fahrenheit, normal human body temperature. The Tolomato River at the project site, is tide dominated. The average tidal range, as reported by the National Oceanic and Atmospheric Administration (NOAA) is 4.5 feet, with the spring tide range reaching 5.2 feet. The tidal range is the height difference between low tide and high tide. Tidal velocities measured at the project site ranged from 1 to 3.5 feet per second, which reflects a very swift current. Until a project such as the proposed marina is constructed, the only recognized method of evaluating its potential impacts on water quality is by modeling. Modeling is the customary method of evaluating a proposed project's potential impacts. Other methods of evaluating water quality impacts, though perhaps appropriate to already constructed facilities or to facilities to be constructed out in an existing waterbody are inappropriate. Specifically, dye tracer studies may have some value in evaluating the potential impacts of existing facilities or of a facility built out in the river, but they cannot be used to successfully assess the impacts of a project such as the proposed Vilano marina because the basin within which pollutants may be discharged does not yet exist. As a consequence, dye cannot be released at the location where pollutants might be expected to originate. Marine Resources has never conducted a dye tracer study on a marina. A valid predictive model must take into consideration the sum of the water inflows, minus the water outflows, minus any die-offs of the pollutants of concern. Hydrograhic Modelling of the Proposed Marina Dr. Gregory Powell, an expert in coastal and oceanographic engineering, hydraulics, fluid mechanics, and mathematical modelling, modelled the potential impacts of the proposed marina. The particular modelling technique which he utilized is based upon tidal dynamics in that focused on the flow of water into and out of the proposed marina basin as the result of the tides. There are two primary components to tidal action which were utilized by Dr. Powell in his modelling. The first is tidal prism flushing. The tidal prism is that volume of water entering the basin between low tide and high tide. As this volume of water is exchanged between high tides, pollutants are moved from the system. An analogy can be made to a glass of water into which red dye is added. If half of the red-dyed water in the glass is poured out and is replaced with clean water, the dye is diluted and becomes lighter. Each time some volume of water in the glass is poured out and replaced with clean water, the dye concentration is decreased. The second component utilized by Dr. Powell is tidal flow-through flushing. This type of tidal action only occurs in basins which have more than one entrance. A marina basin having dual entrances, like the proposed Vilano project, is subject to flow-through flushing due to a slight change in elevation which is created by the propagating tidal wave. In essence, on a rising tide, the water at the downstream entrance is slightly elevated compared to the upstream entrance. The driving force which results from this difference in elevation causes water to flow through the marina. On the falling tide, the difference in elevations are reversed, causing the flow through the marina to reverse direction. By combining the effects of tidal prism flushing, and flow-through flushing rate for the proposed marina. Powell concluded that the proposed marina would be well-flushed. There are other factors, other than tidal prism and flow-through, which impact flushing rates. Two major such factors are wind and buoyancy effects. These factors, if added in to Powell's model would have increased the calculated flushing rate because both tend to invigorate the system. Factoring in the effect of docking and other structures which will be present in the basin would tend to enhance mixing within the basin. In addition to the tidal flushing rate he calculated, Dr. Powell incorporated into his model certain other coefficients. These included die-off rates, loading rates, and inlet head losses. For each of these factors, Powell utilized conservative values chosen from scientifically accepted manuals. The die-off rate utilized by Powell, 90 percent die-off over a 48 hour period, is consistent with the testimony given at hearing by Dr. Norman Blake, an expert in shellfish biology and ecology and Ms. Leslee Williams, an expert in microbiology and the ecology of pathogenic vibrios in the estuarine environment. The loading rate was taken from the EPA Coastal Marina Assessment Handbook, an accepted authority specifically focusing on marinas. Similarly, the inlet head loss values selected by Dr. Powell were taken from scientific literature and were chosen to reflect the most environmentally conservative scenario, i.e., inlet head losses which would reflect the highest predicted pollutant concentrations. With respect to inlet head losses, Dr. Powell used the upper end values for inlets constructed of a very rough substance like riprap. The access channels of the proposed marina are to be constructed of riprap. Dr. Powell took two different approaches in conducting his modelling of the proposed marina: the closed basin approach and the mixing chamber approach. He utilized the former to simulate instantaneous worst case conditions and the latter to simulate average conditions. The results of these two different simulations were then compared to the two-part water quality- standard for fecal coliform: one an upper 10 percent standard and the other a median standard. Under both the closed basin and mixing chamber approaches, Dr. Powell applied several different scenarios. He first assessed the impact of the marina on water quality if all of the boats in the facility had Type III marine sanitation devices and pump out service was available. He further assumed that, despite these precautions, some of the boats discharged human wastes directly into the marina basin. In order to predict an instantaneous level of fecal coliform, Dr. Powell looked at the effect of a single boat's discharge. His modeling indicated that resulting fecal coliform levels inside the marina itself would be an MPN of 30 per 100 milliliters. For a prediction of the average levels of fecal coliform, over the course of a single tidal cycle, Dr. Powell assumed that 25 percent of the boats in use in the marina ignored marina requirements and discharged human wastes into the basin. This analysis projected an MPN within the basins of 11.1 of fecal coliform per 100 milliliters. Under both peak and average conditions, projected water quality levels would be less than the maximum acceptable levels of fecal coliform, 14/43 standard, set forth in Department of Environmental Regulation and Department of Natural Resource regulations. Dr. Powell next analyzed the water quality impact of the marina assuming that none of the boats had Type III marine sanitation devices but, instead utilized the less restrictive Type I and Type II devices permitted under Coast Guard regulations. Type I device can discharge no more than 1,000 fecal coliform per 100 milliliters of flush water. Assuming all of the boats had Type I devices, fecal coliform in the basin would increase only by 0.067 even if all boats flushed instantaneously. If all of the boats use Type II devices--which allow only 200 fecal coliforms per 100 milliliters to be discharged--a simultaneous discharge from all boats would result in an increase of only 0.0015 fecal coliform. The probability that all of the boats in the marina will discharge from their toilet facilities simultaneously--taking simultaneously to mean within one hour of one another--is greater than 2 x 10. In other words, such an event could be expected to occur once every 5 x 1032 years. Such an event could not be expected to reflect median conditions, nor could it be expected to occur 10 percent of the time. Thus, any analysis based upon a simultaneous discharge from all 34 boats in the marina bears no relationship to water quality levels which can be measured against the dual 14/43 standard for fecal coliform. All of Dr. Powell's modelling reflects projected water quality levels inside the marina basin itself. Water quality outside the basin would be better than that inside the basin. Since water quality levels inside the marina basin can be expected to meet water quality standards, water quality outside would also be expected to be below maximum acceptable levels. The only calculations performed by Dr. Powell which specifically predict water quality levels outside the basin include the assumption of a higher loading rate than did his other models. Essentially, Dr. Powell conducted this analysis utilizing the same loading rates used by Marine Resources in their assessment--that is a fecal coliform discharge from each of the 34 boats in the marina of 4 x 10 fecal coliform (2 X 10 each from two persons on each boat) over a single tidal cycle. With this loading rate, Dr. Powell found that, while fecal coliform concentrations inside the basin would exceed an MPN of 43, concentrations outside the marina basin would only reach an MPN of 11.1 per 100 milliliters. This is below the maximum levels specified by state regulations. Dr. Powell's model includes a safety margin in that his predictions reflect instantaneous and average levels, rather than 10 percent and median levels. As was explained above, median fecal coliform counts are lower than are average levels. In addition, a possible one time occurrence of a significant number of boats discharging over a single tidal cycle would not be an event which could be expected to occur 10 percent of the time. Nor would an instantaneous fecal coliform level exceeding an MPN of 43 necessarily cause closure of an area classified as approved for shellfish harvesting. In fact, in its 1985 survey of shellfish growing areas in St.Johns County, Marine Resources found that sampling station number 772 met the standards for an approved area, even though actual fecal coliform samples for that station reflect one instance on which an MPN of 240 fecal coliform per 100 milliliters was measured. Marine Resources' Assessment of The Proposed Marina's impact Marine Resources conducted its own assessment of the proposed marina's impact on the adjacent approved shellfish harvesting area. This assessment was based upon a written marina policy which, in essence, adopts statements formulated by the Interstate Shellfish Sanitation Conference, a voluntary organization of states, members of the shellfish industry, the Food & Drug Administration, the U.S. Environmental Protection Agency, and the National Marine Fisheries Services. Marine Resources' marina policy is as follows: in accordance with the provisions of the interstate Shellfish Sanitation Program and Food and Drug Administration Policy, the possibility of chance contamination of shellfish in the immediate vicinity would require a reclassification of that area within the marina proper to Prohibited for the harvesting of shellfish. Additional Prohibited areas beyond the marina limits may be required as well, depending on such factors as marina design and quality, marina usage, and hydrography. (Emphasis supplied). Despite Kashou's contention that water quality inside the marina proper would not require it, Marine Resources' classification of the basin of the proposed marina itself as closed to shellfish harvesting was not disputed in this proceeding. Rather, it is the necessity of reclassifying now approved areas in the river which is the subject of this controversy. Marine Resources contends that the proposed marina will cause the closure of an area the radius of which extends 772 feet outside the marina basin. In reaching this conclusion, Marine Resources disregards all design and operating precautions which are to be included in the proposed marina. This is inconsistent with the agency's own policy which specifically states that closed buffer zones may be required, "depending on such factors as marina design and quality, marina usage, and hydrography." Marine Resources' prediction that an area outside the marina will have to be closed is premised upon a simplistic dilution calculation which not only disregards design and operating precautions to be implemented at the Vilano marina, but also disregards the specific hydrographic features of the project site. Dr. Robert Weisburg, an expert in physical oceanography and the hydrodynamics of estuarine systems, analogized Marine Resources' calculations to looking at the effect of pouring pollutants into a static bucket of water. Because the hydrodynamics of the project are not considered, the calculation is not a valid predictive model. The Trustees offered the testimony of David Heil, an expert on the Department of Natural Resources' administration of its rules and policies relating to shellfish area assessments and on the impact of marina contaminants on shellfish and public health, to explain Marine Resources' calculation. Mr. Heil admitted that the assumption that all 34 boats will discharge over a tidal cycle--a critical assumption in the dilution formula-- is unreasonable. He attempted to rehabilitate the dilution calculation by stating that this unreasonable assumption is offset by another, the assumption that contaminants will be uniformly mixed. Clearly, in attempting to validly predict the impacts of a facility on water quality, two improper assumptions cannot balance one another out. In fact, the evidence reflects that the second assumption, uniform mixing, is not unreasonable at all. Marine Resources' incorporation of an unreasonable assumption into its assessment of the Vilano project's impacts further undermines the weight such an assessment can be accorded Any credence which might be given Marine Resources' assessment is thoroughly eroded by the agency's failure to tie such assessment to its own adopted criteria for classifying shellfish waters. Marine Resource's calculation purports to calculate a volume of water within which fecal coliform levels would reach an MPN of 14 per 100 milliliters. It does not predict median conditions; it reflects worst case conditions. The Trustees offered no evidence to suggest that any area outside the marina basin would exceed an MPN of 43 fecal coliform per 100 milliliters under even the worst possible conditions. Therefore, even if Marine Resources' dilution calculation were correct in predicting the area of the river which would contain an MPN of 14 fecal coliform per 100 milliliters--which the evidence indicates it does not do accurately-- this still would not violate water quality criteria for classifying an area as approved for shellfish harvesting. Mr. Heil stated at hearing that the numeric water quality standard for an approved shellfish harvesting area would not apply to the area of the Tolomato River adjacent to the proposed marina because "that area will not meet the definition of [Florida Administrative Code Rule 16R-7 .004(2)] (a)." Apparently, Heil feels that this area of the river will be "so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous. . . ." Rule 16R- 7.004(2)(a), Florida Administrative Code. However, the evidence admitted at hearing establishes that the dual 14/43 standard for fecal coliform effectively protects the public health. While protection against the threat posed by viral pathogens may not be as assured as is the threat of bacterial pathogens, the fecal coliform standard is the best indicator available. Marine Resources' own use of fecal coliform as the indicator species for defining its proposed buffer zone indicates that the agency itself accepts this premise. In conclusion, Kashou has established, using the only valid predictive method available, that the Vilano marina will neither (1) cause water quality levels in the Tolomato River to exceed a median MPN of 14 fecal coliform per 100 milliliters or an MPN of 43 fecal coliform for 10 percent of the samples taken; nor (2) cause the river to become so contaminated by fecal coliform or any other pollutants as to pose a hazard to shellfish or shellfish consumers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the internal improvement Fund enter a Final Order granting the easement requested by James Kashou for Vilano Ventures, Inc., subject to the following conditions: Appropriate modifications to the sales agreements and the charter of the homeowner's association to ensure maintenance of and adherence to the precautionary measures. Termination of the easement, after appropriate due process proceedings, in the event that the adjacent shellfish areas cease to meet the criteria of Rule 16R-7.004(2),Florida Administrative Code, as a result of the operation or existence of this marina. DONE and ENTERED this 8th day of September, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-1994 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-10(1-10); 11-35(12-36); and 37-47(37-47). Note: No paragraph 36 was in the proposed findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(10); 2(5); 3(6-8); 4(9); 6(7); 7(9); 8(11); 9(2); 28(13); 29(14); 30(14); 31(16); and 32 (16) 2. Proposed findings of fact 5, 10, 11, 13-15, 18-21, 25, 33 38,49, and 42 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 12, 26 and 27 are unnecessary. Proposed findings of fact 16, 17, 41 and 43 are not supported by the creditable, competent and substantial evidence. Proposed findings of fact 22-24 and 39 are irrelevant. COPIES FURNISHED: Martha Harrell Hall Mary E. Haskins Attorneys at Law Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Ross S. Burnaman Margaret S. Karniewicz Attorneys at Law Suite 1003, Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 3299 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether proposed amendments to Rule 46-39.005 adopted by the Marine Fisheries Commission, setting maximum lengths for nets used for the commercial harvesting of mullet, establishing one week alternating closure periods for mullet harvests during the late fall/ early winter roe season, setting a 500 pound per vessel per day harvest limit during the pre-roe season and a one thousand pound limit if two licensed commercial fishermen fish together during the roe season, constitute invalid exercises of delegated legislative authority. The Petitioners assert that the economic impact statement which accompanied the notice of rulemaking is inadequate.
Findings Of Fact The Parties Sigma International, Inc., owns and operates a mullet processing, wholesaling and exporting business in Florida. The restrictions embodied in the proposed rules will substantially affect its interests. Seafood Consumers and Producers Association is a non-profit association of businesses and consumers interested in fishery resources and fish harvesting in Florida and elsewhere. The rules would substantially affect interests of the association and the interests of individual members of the association. Bob Combs Fish Co. are fishermen, a first receiver of fish caught by others, and a fish wholesaler doing business in Florida. The proposed rules would substantially affect its interests. Everglades Fish Corporation are fishermen, are first receivers of fish caught by others, and fish wholesalers doing business in Florida. The proposed rules would substantially affect their interests. Houston Brown is a fisherman who does business in the State of Florida. The proposed rules would substantially affect his interests. Triad Seafood is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interests. Horse Weeks Fish Co. is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interest. A.P. Bell Fish Co. are fishermen, a first receiver of fish caught by others, a wholesaler, retailer, and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interests. SaltWater Enterprises, Inc., are fishermen, a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Fisherman's Market, Inc., is a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Marine Fisheries Commission (Commission) is legislatively created and assigned to the Department of Natural Resources. It has authority to adopt rules. Sections 370.025, 370.026 and 370.027(1), Florida Statutes (1991). It adopts fishery conservation and management measures which promote the continued health and abundance of marine fisheries resources in Florida. Section 370.025(2)(a) and (c), Florida Statutes (1991). The Fish Black or striped mullet is a popular food sought for the flesh of the fish and especially for its roe, which is available annually during the autumn spawning season beginning in October. Mullet roe is highly valued by the Japanese, and much of the roe is exported to Japan. Mullet is the most intensively harvested finfish in Florida; in 1989 mullet accounted for 19.3 percent of the state's total finfish catch. Florida is the source for 85 percent of the nation's black mullet catch. Since 1976 the demand for the export of black mullet roe has increased, which has increased fishing pressure on the species' egg bearing females. Roe-bearing fish caught during roe season are about four times as valuable as the fish would be if caught in the pre-roe season. Mullet has a shelf life as a fresh fish of no more than four days due to the oil in its flesh. Although it can be frozen, in the Florida retail market frozen mullet is not considered a desirable food. There is a California market for frozen mullet, however, where it is popular with Asians. Since the closures during the roe season proposed in the Commission's rules will be for periods of one week, there could be days when no fresh mullet would be available to Florida consumers. Earlier Regulation of the Black Mullet Fishery - 1989-1992 Black or striped mullet (mulgi cephalus) are regulated by the Commission as a restricted species. Section 370.01 (20), Florida Statutes (1991), and Rule 46-39.001(4), Florida Administrative Code. Size and bag limits are imposed on recreational takings of mullet. Commercial fishermen taking mullet must hold a saltwater products license with a restricted species endorsement. When they sell their catch they must provide a trip ticket to the purchaser of the fish which includes the fisherman's name and license number, the gear used in the catch, the place of the catch, the species caught and the number of pounds of fish caught. This information is then sent by the purchaser to the Department of Natural Resources, and is an important part of the Department's data base used in regulating the fishery. The Marine Fisheries Commission began a study of black mullet in 1987, and adopted rules restricting commercial black mullet fishing in 1989. Those rules established gear restrictions, amended certain qualifications for licensure to catch mullet in commercial quantities, and set roe season closure periods for mullet fishing. During 15 weekends of the year, the fishery was closed for 36-hour periods. The minimum net size for mesh was set at three inches. Amendments to the rules in 1990 closed new areas to fishing, set minimum net mesh size which could be used during the roe season at four inches, and prohibited commercial fishermen from using spotter aircraft to locate schools of fish. The weekend closures were extended from 36 to 54 hours, and two more weekends were closed for fishing. In drafting all its management measures, the Commission attempted to make it possible for fishermen to fish year round for mullet, and thus make fresh mullet available to consumers throughout most of the year; See the Purpose and Effect Statement of the rule published at 18 Florida Administrative Weekly at 4931, which reflects this Commission policy. In 1991 the Commission debated whether additional regulation was necessary for the mullet stock and proposed new rules and amendments to existing rules which were published in Volume 17, No. 32, of the Florida Administrative Weekly on August 9, 1991, at pages 3593 et seq. but, as noted above, the validity of these rules was challenged. In a final order that was issued on December 9, 1991, provisions of those rules were found to be invalid exercises of delegated legislative authority (DOAH Case Nos. 91-5408R and 91-5422R). The District Court of Appeal affirmed that determination in the opinion entered in Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992). Those invalidated rules had their genesis in a decision made by the Commission in February 1991 which set a statewide spawning potential ratio (SPR) for black mullet. The SPR is a measurement tool used by the Commission and by other regulatory groups, such as the Federal Fishery Management Councils, in the regulation of fish stocks. It is a measure of the biomass (essentially the total weight) of those fish capable of reproducing, divided by an estimate of what would have been the total biomass of fish of reproductive age if there were no fishing at all in the fishery. The goal the Commission set of maintaining a 35 percent SPR for black mullet was chosen using the best information available. The goal is a reasonable tool for the Commission to use in assessing the effectiveness of any of its efforts to manage the black mullet population to produce maximum stock abundance. The 35 percent target is the minimum level which could be set to provide adequate management of the stock and avoid the risk of a dramatic reduction in the number of fish available. The Commission was disappointed that its August 1991 efforts to increase regulation (and in its view, protection) of the mullet population had been turned back through litigation. It credited data on mullet landings showing a continuing decline in the mullet population. This led the Commission to believe that the spawning potential ratio for mullet in the 1991-1992 fishing year had declined to 18-25 percent, well below the target of 35 percent. Review of nine management options and debate at its August 1992 meeting led the Commission to advertise proposed new rules and amendments to existing rules published in Volume 18, No. 35 of the Florida Administrative Weekly at pages 4931 et seq. on August 28, 1992. According to the Purpose and Effect Statement and Summary for these rules the changes proposed to the regulatory regime for black mullet would do six things: proposed rule 46-39.0036 would prohibit the recreational harvesting of mullet from October 1 through October 15, from November 1 through November 15, and from December 15 through January 15 each year; an exception to the closures would be recognized for possessing cut mullet to be used on boats as bait; an amendment was proposed to existing rule 46-39.005 to prohibit the use of gill or trammel nets or beach or haul seine nets longer than 600 yards; subsection (4) of existing rule 46-39.005 was deleted, it had closed the fishery to commercial operation during weekends in the roe season; a new subsection (5) was proposed to rule 46-39.005, which would close the fishery to commercial harvests for the same periods specified for recreational closures; a new subsection (6) was also proposed for rule 46-39.005, which set a limit on commercial harvesting of mullet to 500 pounds of mullet per vessel per day from July 1 through September 30, which is the pre-roe season. At its meeting of September 25-26, 1992, the Commission conducted a legislative-type hearing under Section 120.54(3), Florida Statutes (1991), for the rules it had noticed for adoption. More than 60 people commented on the proposed new rules and amendments to existing rules. On September 26, 1992, the staff of the Commission made a presentation of options it believed were available to the Commission to achieve increased SPR for black mullet and the Commission deliberated using all the information placed before it. Based upon the rule making record compiled, the Commission voted to make changes to the text of the rules as they had been published for comment on August 28, 1992. The Commission decided that instead of two week alternating closures of the mullet fishery for 61 days during the roe season (from October 1-15, November 1-15 and December 15-January 15), it would close the fishery for 56 days using alternating one week periods (from the first through the seventh and fifteen through the twenty-first days of the months of October, November, December and January). The proposed 600-yard maximum net length and 500-pound per fisherman trip limit during the pre-roe season remained, but an increased limit of 1,000 pounds per vessel during the roe season was added if two licensed commercial fishermen used a single vessel. These changes were published in Volume 18, No. 42, of the Florida Administrative Weekly, pages 6221 et seq., on October 16, 1992, as a notice of changes to the Commission's proposed rules. DSPOPS Model for Estimating Spawning Potential Ratio Authorities which manage stocks of pelagic fishes commonly assess the condition of the stock with biological models. Models attempt to account for dynamics of a fishery represented by variables, in an effort to mimic the behavior of the population in its natural state. The models' results provide managers with as accurate an estimate of future fish populations as current science can provide. The choice of a particular model is significantly affected by the data available to be loaded into the model equation. How well any model mimics the natural population necessarily is affected by the accuracy of each of the values used in running the model. The federal National Marine Fisheries Service uses models to assess the condition of stocks of king mackerel, Spanish mackerel and dolphin. The Florida Marine Fisheries Commission has used similar a model known as GXPOPS 1/ to manage the red drum population, with good results, and another for management of Spanish mackerel, which has been brought back from the point of collapse (i.e., a dramatic change in population from an insufficient number of juveniles reaching adulthood). Commission staff chose the biological model known by the acronym DSPOPS 2/ to analyze the current spawning potential ratio of the black mullet fishery. The DSPOPS model is rather sophisticated and contains a significant number of input parameters or variables, such as growth rates, age at sexual maturity, observed harvest levels, recruitment and mortality. The value for some of these parameters are relatively well known through biological sampling, such as age, size, sex and maturity. Values for others, such as mortality of black mullet due to fishing, are subject to some debate. There is sufficient data available to use the DSPOPS model. The model can be run using the high and low estimates for input variables, which yields a range for the SPR, based on those runs. Data the Commission staff used to run the model came from the southwest Florida area. About 75 percent of all mullet landings are made there (especially in the Tampa area), and there is no reason to believe that the dynamics of the black mullet population operate differently there than in the panhandle area or in eastern Florida waters. Catch and effort data for all areas of the state are sufficiently similar to show the fishery is a single unit. Analysis of mullet show Gulf and Atlantic mullet are part of a single gene pool. Moreover, the statute encourages the Commission to manage species populations as a single biological unit. Section 370.025(2)(d), Florida Statutes (1991). The Commission used data only for female mullet, which is appropriate when calculating the spawning potential for a fish where eggs are a limiting factor for the number of fish in a population. Recruitment is a term that refers to those fish that survive the egg and larval stages and eventually mature into adults which can be harvested with fishing effort. There is a relationship between the number of fish able to spawn and the number of fish that are added or "recruited" into a fishery as the result of the spawning, which is known as the spawner recruit relationship. Unfortunately, the spawner recruit relationship cannot be estimated for mullet with enough precision to incorporate it into the model. To account for this, Commission staff ran the model assuming constant recruitment, that is, the assumption was made that there is no relationship between spawning stock and recruitment. This produces an estimate of spawning potential ratio that may be accurate or may be higher than it would be had a spawning recruitment relationship been determined (or assumed). Thus, use of a constant recruitment assumption tends to produce an optimistic assessment of the spawning potential ratio. The most basic variables used in a biological model designed to predict future fish stock are those for mortality rates. In fisheries science, total mortality is universally represented as the variable "Z." It is equal to the rate of fishing mortality, represented as "F," plus the rate of natural mortality "M." 3/ Thus, the equation is that Z = F + M. This is as basic to fishery science as the equation "debits = credits" is to accounting. It is also significant that under this equation, if any two of the three variables are known, the third can be calculated. Non-Parametric Statistics and Independent Review Many of the parameters used in the DSPOPS model have threshold values, they are not parameters which would be expected to have a normal or bell-curved type distribution (such as the average age of fish in a population). Threshold values are non-parametric statistics, and there are no confidence intervals or other measures of variation, such as coefficients of variation, associated with them. This does not mean that the expected SPR levels produced by the model lack utility, are unscientific, or are inherently untrustworthy. Other efforts are made to test the correctness of the parameters values used in the model, or in using the model's output. Using the model to estimate a range of SPR for various regulatory regimes is the best way to manage a fishery. It is for this reason that the Department convened an independent review panel to evaluate the values which its staff had loaded into runs of the DSPOPS model, to represent what would happen in the fishery if various management measures were imposed. This group of outside scientists met with the Commission staff on July 9-10, 1992, to review the data and reach a consensus on the appropriate values to be used for all parameters introduced into the model equation. They cross checked data, and evaluated its consistency with published studies. Although Petitioners complain that scientists who testified for them at the Section 120.54(4) final hearing on the 1991 rules were not invited to this meeting, the Commission's explanation for this is persuasive. The scientists invited were independent, had no association with the Commission, DNR or the Petitioners, and had no other prior associations or biases militating against reaching a consensus. The panel concluded that data available showed female SPR was in the range of from 15 percent to 26 percent, with the most likely value being 21 percent or less. F Value Determined by Tag/Recapture Data and Z Using Time Series of this Data Dr. Behzad Mahmoudi, of the Florida Marine Research Institute, performed a tag/recapture experiment on mullet in southwest Florida in an attempt to determine the F value (fishing mortality) to be used in the DSPOPS biological model. The determination of F can be a problem; for some fish species it is not available. In a few fisheries researchers are assigned to observe and record activity on commercial fishing vessels; there F (fishing mortality) may be calculated by analyzing catch per unit of fishing effort, i.e., the number of pounds of fish landed per hour or per day of fishing. Florida's data gathering through trip tickets does not permit this, since it provides no means to account for the common situation of a fishing trip which yielded no mullet catch. Dr. Mahmoudi's experiment for determining fishing mortality was a good one, which carefully accounted for the biases normally associated with studies designed to estimate F. In a tagging experiment mullet are handled, a smooth plastic filament streamer or tag inserted in a small slit, and then the fish is reintroduced into the waters of the Gulf. These streamers are thin enough to be pulled through the mesh of the crown of fishing caps, where they are sometimes worn by fishermen disinclined to return them to the Commission's researchers, although they are paid $5.00 per tag returned. These tags are then returned to the Florida Marine Research Institute by fishermen or fish processors when tagged fish are caught. When used in conjunction with data on landings of mullet, the proportion of tags returned from among those landed gives an indication of the fishing mortality for the species. The fish were tagged at the beginning of the '89-'90 and '90-'91 seasons, and captured over the following two seasons. Fish tagged in the first year may not be caught until the second year or later. Dr. Mahmoudi also performed ancillary experiments. He put a sample of tagged fish in pools, and evaluated mortality over time caused by the tagging process itself. He also evaluated tag rejection by monitoring tagged fish placed in pools to determine the proportion of spontaneous tag loss. Lastly, he and associates evaluated the non-return rate for tagged fish commercially caught by going to fish processors, and examining commercial catches made by licensed fishermen. After the fishermen and processors had finished with the fish, and returned all tags that were going to be returned, researchers examined those fish to see how many tags yet remained and had not been removed or returned to the Commission. This permitted calculation of the rate at which tags on fish caught are returned. Through these three ancillary experiments, Dr. Mahmoudi accounted for the major variability likely to be introduced into estimations of F (fishing mortality) based on tag recovery. He did not add a specific adjustment to his F value for any increased predation on tagged fish, for there was no reason to believe that it would be anything other than de minimis. Due to the nature of the tag and the placement of the tags on the fish, it is unlikely that tagged fish were ensnared in nets at any higher rate than untagged fish. It is also significant to remember that the recovery rate for tags is not affected by fishing effort. It is based on the percentage of tags which are returned from among fish caught, and is a proportion of fish caught. The more fishermen fish, the larger the absolute number of tags returned, but if the price of fish falls, and fishermen make fewer fishing trips, the proportion of tags returned does not change, although fewer tags may be returned. The range of values which Dr. Mahmoudi estimated for F based on his tag return data of .88 through 1.13 are quite accurate. Moreover, the numbers are consistent with published studies and confirmed by separate calculations discussed below which are consistent with these F values. By treating tagged fish as if they were the whole fish population, Dr. Mahmoudi was also able to determine how many tags were returned at different time intervals, and by using this time series data, was able to calculate a value for Z (total mortality) of 1.5. Since he then had values for both F and Z, he was able to calculate the value of M (natural mortality) as .3. Independent Calculation of Z Through Catch Curve Analysis A commercial catch of fish contains individual fish of different ages. When gear such as gill nets are used, small fish escape, but after the fish reach a certain size, all but the biggest fish are caught (big fish may bounce off or swim around gill nets). The range of ages of the fish caught in gill nets mirrors the age distribution in the fish population, after an adjustment for the smallest and largest fish which escape gill net capture. It is possible then to calculate the slope of a line by plotting the age of fish versus the percent of fish of that age in the catch, and by this method to derive a value for Z (total mortality). Dr. Mahmoudi did this. He then went through an additional verification step. He made a catch of fish using a purse seine net which, unlike a gill net, catches all fish regardless of size. He was able to superimpose the catch curve analysis from this purse seine catch over that generated by the catch curve for fish caught with gill nets, and they matched. This gave him two additional independent and consistent estimates of Z, which also were consistent with his Z estimate of 1.5 from the tag/recapture data. Corroboration of Z value by Otolith Size Mullet have bones in their ear which lay down layers of clear and opaque material creating rings. Counting the number of rings yields a determination of the fish's age. Dr. Mahmoudi counted otolith rings using a large sample of mullet, and he determined the average age of mullet in the fishery was 3.5 to 4 years. This is consistent with the estimates of Z as being 1.5, because use of 1.5 in the equation Z = F + M means that the average age of mullet in the fishery is 3.5 to 4 years old. Independent Calculations of M Natural mortality, or M, is a significant parameter in the DSPOPS biological model, and it is important to have a good estimate for it. Dr. Mahmoudi used three independent methods to calculate a value for M. The first he used, Pauly's method 4/, is one which can be done with little data, but provides a somewhat weak estimate. It was developed for use in estimating sardine populations, and is based on water temperature readings, and the rate of the growth of fish. It yields an estimate of mortality which is accurate within a range of from one half to two times the actual mortality rate for the fish. The independent review panel determined that it was likely that the estimate for mullet of .58 using Pauly's method would be on the high side, i.e., closer to the twice than to one-half of the actual mortality rate. Dr. Mahmoudi then calculated an M value with a different method, Alagaraja's method 5/, which provides a stronger estimate, but requires knowing the maximum age of the fish attained in an unfished environment. This is somewhat difficult because black mullet have been fished in Florida waters for more than 50 years. Other experiments in the scholarly literature showed mullet have been found that were at least ten old, so an age of at least ten years was appropriate and when used in Alagaraja's method yielded a value for M of .4. The consensus of scientists on the independent review panel was that the maximum age of mullet in an unfished population was probably closer to 15 years of age, and using that value, the Alagaraja's method yielded a M value of .3, which was consistent with the M value generated in the tag/recapture study, and reasonably close to the .4 value computed for M under Alagaraja's method using a maximum age of ten years for mullet. The third method was to calculate M based on the values of F and Z determined from the tag/recapture study. Summary of Biological Data For Z there were two independent estimates derived from catch curve analyses (one using gill nets and the other purse seine net catches) and the determination from otolith rings. There were two separate calculations of M using Pauly's and Alagaraja's methods. F was calculated from the tag/recapture study. Independent estimates for Z and M were derived from Dr. Mahmoudi's tag/recapture data, and all were consistent. There are number of reasons, therefore, to have great confidence in the values for the significant variables Z, F and M used by Dr. Mahmoudi in running the DSPOPS model. As with the values for other parameters loaded into the DSPOPS model, which have no statistical confidence intervals associated with them, it is not possible to say that the value of 1.5 for Z is correct within plus or minus X thousandths of a point, at the .05 level of confidence, as is commonly done with parametric statistics, such as reports of opinion polling data. For this reason, separate computer runs were done using high and low estimates of significant variables such as Z (total mortality), F (fishing mortality), and M (natural mortality), paying special attention to the estimates likely to produce the highest SPR value. Effects of Cold Fronts on Catchability and the Effect of Effort-shifting by Fishermen. The more cold fronts which occur during the closure season, the more likely it is that a higher proportion of fish will escape, and conversely if many cold fronts occurred during the open weeks, a larger proportion of fish ready to spawn would be caught. Dr. Mahmoudi ran simulations using data from 17 years on the occurrence of cold fronts, and using what is similar to a random number generator, performed a Monte Carlo simulation for likely occurrences of cold fronts based on the 17 years of data. This data was incorporated into the projections of likely SPRs for different regimes. Net Limitations The Petitioners attack the 600-yard net limitation found in the rule as arbitrary. At the time the rule was being considered, the average net length used in the fishery was about 1,000 yards. The reduction in the maximum net length would have an effect on the catch, but while catch may vary inversely with maximum net length, it does not vary directly with a reduction in net length. Consequently, Dr. Mahmoudi estimated that the 40 percent reduction in the maximum net length would result in an approximately 15 percent reduction in catchability. While this assessment of the effect of the reduction in gear is judgmental rather than statistical, it is reasonable, and not arbitrary, i.e., a judgment unsupported by fact or logic. Regulatory Options For the option proposed of two-week closures during the roe season of October through January of each year, coupled with the 600-yard net limitation and a 500-pound catch limit per vessel, the estimation of SPR mullet would achieve would be from 30 percent to 39 percent. This was the management option discussed at the Commission's August 1992 meeting which led it to the publication of the first iteration of the rule in the August 28, 1992 edition of the Florida Administrative Weekly. After that publication and before the legislative-type public hearing on the rule which had been noticed for adoption, Dr. Mahmoudi ran the DSPOPS biological model to consider four more management options, three of which were suggested by commercial fishermen or their representatives. The option which suggested the highest SPR range was not necessarily the best option, however, because the Commission also had to consider what the escapement rate would be for roe-bearing mullet during the roe season for that option, and how enforceable that option was likely to be. The commercial fishermen made it clear at the pubic hearing that they would prefer a one week open/one week closed regime, as opposed to the published text of the rule which would have closed the fishery for alternating two week periods. In addition, the rule was amended to allow two licensed fishermen on a single vessel to catch 1,000 pounds of mullet per boat trip during roe season. Fishermen believed that by fishing together when fish were more valuable they could lower their expenses and thus achieve a higher profit margin during the open weeks. The Petitioners argue that had the Commission chosen option 1, a 72- hour-per-week closure during roe season, with one 10 day closure, the predicted SPR would be approximately 32.3 percent (with a range of 27.9 to 36.7 percent), while option 4, the proposal for week one/week off closures, would produce an average SPR of 34.2 percent (having a range of 29.8 to 34.2 percent). They see the options as essentially identical in the SPR but would find option 1 much easier to live with, since it would be easier for fish processors to maintain their labor forces with shorter closures. Option 1 would also make it less likely that there would be many periods when no mullet would be available to retail consumers of fresh mullet since with a four-day shelf life, week long closures could produce periods when fresh mullet could not be found and 72-hour closures do not. The longer the closure period, the more likely closures will coincide with cold fronts; it is closures during these frontal periods which permit the escapement of the most fish. The significant differences between option 1 and option 4 are that under option 1, approximately 20 percent more spawning females would survive the roe season, but under option 4 (which is essentially the option the Commission adopted), the increase in the number of spawning females surviving through the roe season would be 48 percent. Option 4 intuitively is a better management option if the goal is to reach spawning potential ratio of 35 percent, the minimum ratio to sustain stock abundance over time. The Commission did adjust the closure period to help the commercial fishermen by switching the closures periods from a two-week on/two-week off regime to a one-week on/one- week off regime. The Economic and Small Business Impact Statement As is often the case with legislation, the goals stated in Section 370.025(2), Florida Statutes (1991), can be harmonized, but only with some difficulty. Section 370.025(2)(b) requires the Commission to base its conservation and management measures upon "the best information available, including biological, sociological, economic and other information deemed relevant by the Commission." Section 370.025(2)(c), Florida Statutes, requires that those measures "shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis." The Petitioners interpret this to require the Commission to achieve its biological goals with the least possible negative impacts on the economics or social conditions in the fishery. This is simply not what the statute says. No doubt those regulated would hope that the Legislature would require the least possible impact on them. But what was enacted was the mandate that the Commission's primary goal is to insure the continuing health and abundance of the species, and after doing so, then to permit reasonable quantities of annual harvest which can be sustained over time. The economic impact statement (EIS) was prepared by an economist, using data from a variety of sources. The statement itself is 16 pages long, it contains three pages of references, five figures to illustrate points, and six pages of tables of data to support its conclusions. Much of the important information was derived from a 1989 study published by the Institute of Food and Agriculture Science at the University of Florida by Robert Degner and others entitled "An Analysis of Potential Regulatory Changes on the Economic Structure of the Eastern Gulf of Mexico Finfish Industry Centered in Florida" (Reference 11). Section 3 of the EIS estimates the economic benefits and costs to persons directly affected by the proposed amendments. It analyzes who are the persons directly affected (Section 3.20); the costs and benefits of having no regulation, of maintaining current regulations, or of imposing the new regulations published in the August 28, 1992 edition of the Florida Administrative Weekly (Section 3.30); the result of changes in net lengths (Section 3.40); the result of the seasonal closures (Section 3.50), and of trip limits (Section 3.60). It contains as well an analysis of the impact of the proposed rules on competition in the open market for employment in Section 4.00, a small business impact statement in Section 5.00, and an analysis of alternatives in Section 6.00. Section 7.00 evaluates costs to the agency and to local governments. Section 8.00 describes the data and methods used by the Commission in making its estimates. The Petitioners presented testimony at final hearing of an economist that many of the views expressed in the economic impact statement are misinterpretations of economic data or are in error. It is essential to remember that the purpose of rulemaking is not to produce assessments of potential economic impact which can withstand the intense scrutiny of a Ph.D. dissertation. Rather, the EIS is required to insure that the agency considers each of the topics required in the statutory economic impact analysis before settling on a policy which will be embodied in its rule, and to give affected persons the opportunity to bring to the attention of the Commission information which could lead to other regulatory choices, if the Commission is persuaded by that economic evidence or argument. Basically, Mr. Murray's testimony at final hearing argued that the Commission's economic impact analysis focused on macro-economic results of the proposed regulations, but not enough on micro-economic results, that is, impacts on individual households and business (Tr. 458). The EIS concentrated on such things as estimates of total dollar losses caused by the regulation proposed. In Section 3.20 the EIS defines the persons directly affected by the rules as "those engaged in the directed harvest of mullet for commercial purposes;" and commercial harvesters (fishermen) were estimated to be between 455 and 3,150 persons, based on estimates in two sources (EIS at 5). The fishermen generally work alone, as two-man crews, and in a few instances in six to eight fishermen groups. These estimates of those directly affected appear to have an adequate basis. While a broader number of people will feel the pinch of the rule (for instance consumers wishing to buy fresh mullet at retail) they are indirectly rather than directly affected, since there is no prohibition against possession of mullet purchased at retail for home consumption during closure periods. The statute requires the analysis of the effect on those persons who will be prevented from harvesting mullet during closure periods and the EIS is not deficient for limiting its analysis to those whose actions would be directly regulated by the Commission. The section of the EIS dealing with the impact on competition and the open market for employment acknowledged that the rule would have seasonal affects on employment and the incomes of persons in roe mullet fishing and processing businesses (EIS Section 4.00 at 9). Most all of the fishermen are small businesses, so there is no effective way to tier the rules to impose lesser restrictions on small businessmen and ultimately achieve the impact the Commission intends to achieve. If small businesses were exempted, no regulation could be effective. EIS has an analysis of the effect on the standing stock of fish and the dollar value of that stock under four scenarios, (1) under equilibrium conditions with no regulation, (2) the then current weekend closure and net size regulations, (3) under the proposed rule as published and (4) under the assumption that the rule would result in an increased recruitment to the fishing stock of an additional 10 percent. The dollar value for the fish used in the these evaluations is probably inappropriate (the value is $6.70 for each fish, which is the ecological value the Department of Environmental Regulation was considering establishing for fish killed through violations of ecologic regulations). What is significant is the comparison of the increase in standing stock in each scenario, as well as the dollar value ascribed to that stock. Commissioners, legislators, or anyone else could interpret the dollar value by making different dollar assumptions for the stocks levels projected. Mr. Murray's written comments pointed out to the Commission that a better value might be 60 per pound. The EIS does provide a means of comparing the benefits of not adopting the rule to the benefits of adopting the rule, at least as far as an increase in the size of the fish stock is concerned. Proper notice of the proposed rule was sent to the Director of Economic Development, the Bureau Chief of Minority Business, and the Small and Minority Business Advocate, as well as to the Joint Administrative Procedure Committee. The Marine Fisheries Commission received neither a response nor an objection from any of these agencies. The Commission amended the proposed rules in significant ways in an attempt to relieve the burdens which the fishermen argued they would suffer if the rules were adopted with no changes. The one week on/one week off closure periods were substituted for the two week closure periods originally proposed, and the trip limit was amended to permit two licensed fishermen to fish in a single boat and bring in 1,000 pounds of fish during the roe season. The agency thus seriously considered alternatives to achieve their management goals while ameliorating the economic impact on those regulated. This shows that the economic information contained in the economic impact statement was seriously considered by the Commissioners. The only economic objection actually voiced to the Commission on September 25, 1992, during public testimony by Mr. Murray was that the EIS did not ascribe sufficient value to mullet flesh taken during roe season, but concentrated on the value of the roe. He informed the Commission that for some sellers, fresh mullet flesh was 80 percent of their sales, and that two week closures could put them out of business. (Ex. 12, at 57-58). This error in the EIS was remedied by Mr. Murray's testimony.
The Issue Whether Respondent, The MG Herring Group, Inc. (MG Herring), was an employer of Petitioners.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as Manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as Manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group) operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager, and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order denying the Petitions of all Petitioners. DONE AND ENTERED this 11th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2018.
