The Issue The issue is whether the Florida Game and Fresh Water Fish Commission (Commission) should renew Respondent's permit to possess captive wildlife.
Findings Of Fact Operating under the name of South Florida Reptile Exchange, Respondent, Alvin Weinberg, has been permitted since 1978 by the Commission to possess captive wildlife. On September 2, 1992, the Commission issued an Administrative Complaint seeking to deny renewal of Respondent's permit for violations of minimum pen specifications and unsanitary and inhumane conditions at his facility. Under Rule 39-5.004, Florida Administrative Code, the Commission may revoke or deny renewal of any license or permit if the licensee or permittee is convicted or found guilty, regardless of adjudication, of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission. On June 16, 1992, Respondent's facility was inspected by Lt. Charles Dennis and Lt. John West. In the course of that inspection, they found a number of unsanitary and inhumane conditions. Specifically, most of the water bowls for the animals were empty. There were dead animals, maggots and an accumulation of fecal matter in many cages. Up to 150 turtles were kept in one pit that measured only 5' X 5'. Many reptiles had not been fed properly. For instance, one Monitor lizard was so emaciated that the inspectors were surprised it was still alive. The conditions found at Respondent's facility on June 16, 1992, were the worst seen in the 17 years experience of Lt. Dennis. Respondent was issued two criminal citations on the basis of these observations, for violations of a Commission rule relating to sanitation requirements and the humane treatment of captive wildlife, Rule 39-6.0023(5), Florida Administrative Code. These citations resulted in a criminal conviction of Respondent in St. Lucie County Court, Cases 92-1754MM and 92-1755MM. Respondent was previously issued a criminal citation in July of 1991 for violation of a Commission rule relating to sanitation requirements and humane treatment of wildlife at his facility. This citation also had resulted in a criminal conviction in St. Lucie County Court, Case 91-1345MM. Before these criminal proceedings, Respondent had received warning citations from inspectors for violations of Commission rules relating to sanitation and the humane treatment of animals. During the pendency of these proceedings, Respondent's facility was inspected again on January 6, 1993. Some conditions at the facility had improved, but there were still deficiencies related to sanitation and the humane treatment of the animals. Respondent has consistently been below the industry standard with respect to sanitary conditions and the humane treatment of wildlife kept at his facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's application to renew his permit to possess captive wildlife be DENIED by Final Order of the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1993. COPIES FURNISHED: James T. Knight III Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mr. Alvin H. Weinberg South Florida Reptile Exchange 20510 Glades Cutoff Road Port St. Lucie, Florida 34987 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue The 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 the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At present Tony's Fish Market, Inc. t/a Tony's Fish Market, is the holder of license no. 23-1624-SRX, series 4-COP held with the State of Florida, Division of Beverage. Prior to September 1, 1974, Armand Cerami owned 50 shares of stock in Tony's Fish Market, Inc., which represented a 50 percent interest in that corporation. In addition, Armand Cerami held 50 shares of stock in Tony's Fish Market of Ft. Lauderdale, Inc., representing a 50 percent interest in that corporation and was the holder of 50 shares of Tony's Sweet Enterprises, Inc., which represented a 50 percent interest in that corporation. During the time period of September 1, 1974, Armand Cerami had been charged with violation of the Internal Revenue Laws of the United States, under a federal indictment no. 74-407-CR-JE, in the United States District Court for the Southern District of Florida. This charge was placed against Cerami for Internal Revenue Law Violations which allegedly took place on tax returns on the tax year 1968. In contemplation of a plea of guilty which Cerami intended to enter in the above cited case, he entered into a contract for purchase and sale of the corporate securities in the aforementioned corporations. Petitioner's Exhibit #2, admitted into evidence is a copy of the contract for purchase and sale of corporate securities, which was entered into between Armand Cerami and Pamela Ann Cerami, his wife, on September 1, 1974. The terms of the contract were that Pamela Ann Cerami would pay Armand Cerami $20,000 cash and would give to Armand Cerami a promissory note payable in the amount of $200,000, in ten equal installments of principal and interest at 6-1/2 percent payable on the anniversary date of the contract. On September 20, 1974, the Board of Directors of the three subject corporations accepted the resignation of Armand Cerami as the Secretary-Treasurer of those corporations, and elected Pamela Cerami as Secretary-Treasurer in Armand Cerami's stead. Those Board of Directors were Tony Sweet, Frank Sweet and Armand Cerami. Armand Cerami returned to federal court on October 18, 1974, and entered a plea of guilty to counts one and five of the aforementioned indictment, for which he was sentenced to three year on each count to run concurrently, but was given a split sentence of 6 months time in confinement, thereafter to be placed on a probationary period for 2-1/2 years. A copy of the judgement and commitment is Petitioner's Exhibit #1, admitted into evidence. They are felony offenses. Subsequent to his release from prison, Armand Cerami served as a co- manager and host of the licensed premises, Tony's Fish Market, located at 1900 N. Bay Causeway, North Bay Village, Florida, license no. 23-1624-SRX, series 4- COP and in the same capacity at Tony's Fish Market of Ft. Lauderdale, located at 1819 S.E. 17th Street, Ft. Lauderdale, Florida, license no. 16-1320-SRX, series 4-COP. He remained in this capacity until September 30, 1976, when a change in Section 562.13(3)(a), F.S. prohibited convicted felons from being managers of the licensed premises, licensed by the State of Florida, Division of Beverage. The change in the law took effect on October 1, 1976. At that point two separate individuals were hired as managers of the subject licensed premises. Armand Cerami remained in the position as host of those licensed premises, up to and including the date of the hearing. Although this title and this position was held by Armand Cerami, on December 16, 1976, while conducting a routine visit, beverage officer, William Valentine was told by Frank Sweet, a Director in the subject corporations, that Frank Sweet was in charge of the kitchen of the Tony's Fish Market of Ft. Lauderdale and that Armand Cerami was the real manager, ran the restaurant and was responsible for hiring and firing of employees. Pamela Ann Cerami was not shown to have any active interest in the management of the licensed premises. Pamela Ann Cerami as the Secretary-Treasurer in the three corporations which she purchased shares in, does not draw a salary from the operation of the two restaurants. Her background and financial involvement in the licensed premises, can be traced to certain trusts in her name and a certain gift from her husband, Armand Cerami. The joint composite exhibit #1, admitted into evidence in the hearing, shows that Pamela Ann Cerami, at one time Pamela Crumly, was a beneficiary of the estates of Gail Crumly and Mildred Crumly, her grandparents. Certain distributions of money were made to Pamela Ann Cerami from those estates. On April 3, 1970, she received $6,093.94; on July 3, 1970, she received $121.88; on October 5, 1970, she received $182.82; and on December 31, 1970, she received $925.65, which represented a partial distribution of her 1/2 interest in the Gail Crumly estate. As of April 1, 1970, she had been given $5,292.59 as a portion of the 1/3 distribution of her share in the estate of Mildred Crumly. The total value of her share in that estate being $16,157.02, and the conditions of her rights to the estate being set forth in the will of Mildred Crumly which is found in the joint composite exhibit #1. Pamela Ann Cerami had worked as an airline stewardess prior to her marriage to Armand Cerami and had certain funds from her employment in that capacity. Other funds of the marriage include a certificate of deposit in the Bank of Nova Scotia in Nassau, Bahamas in the amount of $18,000, at 8-1/4 percent interest, as deposited May 20, 1970 with a maturity of November 20, 1970. This certificate of deposit was in the name of Armand D. Cerami and/or Pamela Crumly now Pamela Ann Cerami. The interest received on that certificate of deposit was redeposited along with the principal and a second certificate of deposit was purchased on May 23, 1974 in the amount of $23,480.74, to become mature on November 25, 1974. This certificate was withdrawn on October 18, 1974 and the receipt of 10-1/4 percent interest was paid. The amount of interest thereby being $975.89. Copies of the above mentioned certificates of deposit may be found as part of the joint composite exhibit #1 admitted into evidence. Continuing an examination of the financial circumstances of Pamela Cerami and Armand Cerami, there is found a warranty deed from Willard H. Keland to Pamela Ann Cerami for certain real estate in Dade County, Florida, for which Pamela Ann Cerami paid Willard H. Keland the amount of $158,000. This deed is found as Petitioner's exhibit #4 admitted into evidence and was recorded on January 11, 1974. On that same date a closing was held on the property. Petitioner's Exhibit #5, admitted into evidence is a copy of the closing statement. Conditions of the closing was a cash deposit in the amount of $15,800 and $69,251.64 to close. A first mortgage in the amount of $67,500 and interest of $1,028.75 was given to the Miami Beach First National Bank. The $158,000 paid for this estate corresponds to a gift which was given by Armand Cerami to Pamela Ann Cerami in the amount of $158,000 as shown in the gift tax return, a copy of which is Petitioner's Exhibit #6, admitted into evidence. The effective date of the gift is established in the gift tax return as February, 1974. The federal income tax return filed by Armand Cerami for the year 1974, shows the sale of the stock of the three corporations. That income tax return would further show the $20,000 installment sale payment, a portion of which was treated as income to Armand Cerami. Finally, that return shows $13,000 of interest which was treated as income to Armand Cerami. On October 1, 1975, Pamela Ann Cerami gave a first mortgage on the property that she had paid $158,000 for, this mortgage being given to Bob Erra, as trustee. A copy of the mortgage deed is found a Petitioner's Exhibit #9, admitted into evidence. The amount of the mortgage was $40,000 and the proceeds of the mortgage amount were distributed as $7,000 to Pamela Cerami and $33,000 to Armand Cerami. These distributions were placed as time certificates of deposit with the Pan American Bank of West Dade, copies of which are found as Petitioner's composite exhibit #8. The amount of interest returnable on the time certificate of deposit held by Armand Cerami is shown in his 1975 federal income tax return. Tony's Fish Market, Inc. t/a Tony's Fish Market, made application with the State of Florida, Division of Beverage, to change Armand Cerami as Secretary-Treasurer of Tony's Fish Market Inc. and substitute Pamela Cerami as Secretary-Treasurer of that corporation and to transfer the stock for ownership in the licensee corporation from Armand Cerami to Pamela Cerami. This change of officer and transfer of stock ownership involves the license no. 23-1624-SRX, Series 4-COP. This application was denied by letter of June 16, 1975, from the Director of the Division of Beverage. Subsequent to the sale of the stock and the removal of Armand Cerami and the substitution of Pamela Cerami as the Secretary-Treasurer of the aforementioned corporations, an application was made with the State of Florida, Division of Beverage to transfer the ownership of the license of Tony's Fish Market, Inc. to Tony's Fish Market, Inc. and Tony's Sweet Enterprises, Inc. In addition application was made to chance the trade name of the restaurant from Tony's Fish Market to Tony's Fish Market Restaurant. This application involved the same license no. 23-1624-SRX, series 4-COP. This latter application for transfer of the license and the change of the trade name was denied by a letter of the Director of the Division of Beverage dated August 21, 1975. In fact, Armand Cerami had been convicted of a felony, and is interested in an indirect way in the licensed premises.
Recommendation It is recommended that the applications to change the officer, transfer the stock ownership, transfer the license, and change the trade name, in license no, 23-1624-SRX, series 4-COP, set forth in this hearing be denied. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Division of Beverage The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Tobias Simon, Esquire 1492 S. Miami Avenue Suite 208 Miami, Florida 33130 Sy Chadroff, Esquire Suite 2806 120 Biscayne Boulevard North Miami, Florida 33132
