The Issue Whether proposed rules promulgated by the Florida Marine Fisheries Commission are an invalid exercise of delegated legislative authority.
Findings Of Fact The Florida Marine Fisheries Commission (MFC) has proposed rules requiring use of bycatch reduction devices (BRD.) The proposed rules are applicable where trawling for shrimp is permitted in specified Florida waters within the Gulf of Mexico. The notice of proposed rulemaking was published in Volume 23, Number 30, Florida Administrative Weekly, July 25, 1997. The Petitioners have challenged the proposed rules, specifically the provisions prohibiting possession of an otter trawl (a type of trawling net) that is rigged for fishing aboard any vessel without having a required BRD installed. All parties have standing to participate in this proceeding. The federal government requires BRDs in the Florida waters not impacted by the proposed rules at issue in this proceeding. The federal rules are intended to protect red snapper in the Gulf and weakfish and Spanish mackerel in the Atlantic Ocean. The MFC rules are intended to offer broader protection than federal rules, and are intended to protect the Gulf ecosystem rather than specific species of organisms. Shrimp trawls operating in the Gulf of Mexico harvest approximately 2.4 pounds of non-shrimp species for every pound of shrimp harvested. The MFC goal is to reduce the level of bycatch harvested by 50 percent. The proposed rules do not cover the “Big Bend grass beds” where trawling for shrimp is already prohibited. The proposed rules do not cover Florida’s northeast coast where other BRD rules are in effect. The Petitioners challenge the same provision in three separate rules. Proposed Rule 46-31.010(4), Florida Administrative Code, provides: In the Northwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.012(4), Florida Administrative Code, provides: In the Southwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.013(2), Florida Administrative Code, provides: In all waters of the Southeast Region outside nearshore and inshore Florida waters, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) On a shrimping boat, “otter trawl” nets are suspended from the ends of “outriggers” attached to the sides of the boat. When in use, the nets are dropped from the outriggers into the water. Once in the water, the nets are dragged along behind the boat, collecting shrimp and other marine species. The non-shrimp marine species collected are referred to as the “bycatch.” The phrase “rigged for fishing” means that the nets are shackled to the outriggers and are in a condition ready to fish, but are not yet in the water or being dragged along the bottom of the water. Nets attached to the outriggers of a shrimping boat and ready to be dropped into the water are rigged for fishing. Nets lying on the deck of the boat which are not attached to the outriggers are not rigged for fishing. It takes no more than a few minutes to attach the nets to the outriggers. The phrase being challenged in the proposed rules essentially prohibits a shrimp boat operator from suspending the nets above the water prior to dropping the nets into the water without having the BRD installed in the nets. Although there is no credible evidence indicating the reason shrimp boats leave the docks with nets in a position rigged for fishing, many apparently do so. There is no credible evidence suggesting any reason nets would be suspended from the outriggers other than in anticipation of initiation of shrimp harvest activity. There is no credible evidence that any impact would result from requiring that non-BRD equipped nets remain unrigged for fishing until outside of waters affected by the proposed rule. Use of the BRDs results in a substantial reduction of bycatch. There is no evidence that use of the BRDs results in any reduction in shrimp harvest. The evidence establishes that the reduction in bycatch will contribute towards the preservation of renewable marine fishery resources and will benefit the continuing health of the resources. There is no evidence that the proposed rules are unfair or inequitable to any persons including shrimp boat operators. The Petitioners assert that because the penalty for violations of the rules may eventually result in incarceration, the cited phrase creates a criminal presumption that a shrimp boat operator with non-BRD equipped nets is presumed to be fishing without a BRD. The evidence fails to support the assertion. There is no presumption being created by the proposed rule. The challenged rules are gear specifications for shrimp trawls, and are clearly within the realm of the MFC's rulemaking authority. The cited phrase does not prohibit the mere possession of a net without a BRD installed. The cited phrase prohibits suspension of a net from an outrigger without having a BRD installed in the net. There is no reason, other than in anticipation of immediately dropping the net into the water, that a trawl net must be suspended from an outrigger. The Petitioners assert that the rule would impact shrimp boat operators who are passing through Florida waters traveling to waters outside the areas impacted by the proposed rules. There is no evidence that the proposed rules would interfere with fishing operations. In the example of boat operators fishing outside Florida waters and using non-BRD equipped nets, compliance with the rule requires only that the nets remain unrigged for fishing while passing through Florida waters. The Petitioners assert that there are instances due to emergency, weather or otherwise, that may result in a shrimp boat operator working waters outside those covered by the proposed rules, raising non-BRD equipped nets and moving through into Florida jurisdictional waters. In such an event, the Petitioners assert that an operator could be subject to application of the rule even though the non-BRD equipped nets, still rigged for fishing, were not used in Florida waters. The Florida Marine Patrol will be responsible for enforcement of the proposed rules. Obviously, a Marine Patrol officer’s judgment will be required to determine the existence of an emergency and whether any official action is appropriate. A shrimp boat officer cited for violation of the proposed rules is entitled to challenge the application of the rule.
The Issue Whether the amendments respondent proposes to Rules 46- 22.001, 46-22.002 and 46-22.003, Florida Administrative Code, and the new rules it proposes, 46- through 46-22.007, or any of them, constitute an invalid exercise of delegated legislative authority, within the meaning of Section 120.54(4), Florida Statutes, (1985)?
Findings Of Fact Comprised largely of commercial fishermen, the petitioners are organizations which represent commercial fishing interests, including not only commercial fishermen, but also fish houses, fish processors, and at least one restaurateur. The parties have stipulated that petitioners have standing to bring this rule challenge. The intervenor, Florida Conservation Association (FCA), is an organization to which recreational fishermen and "a number of people ... involved in the sports fishing industry" (T VIII. 7), including fishing guides, marina owners, bait and tackle dealers, tackle manufacturers, and "motels that ... cater to a fishing clientele," (T.VIII. 8) belong. According to the intervenor's executive director, "one of the primary goals of the organization ... has been to work towards gamefish status for redfish, which would be basically what we have been trying to do with the rule, for game fish status." (T.VIII 6.) Respondent Marine Fisheries Commission (MFC) is charged by statute with regulating fishing in the salt waters of the state, which extend nine nautical miles from shore. (T.I.29) The rules and rule amendments the MFC has proposed for redfish were published on July 11, 1986, in Volume 12, No. 28 of the Florida Administrative Weekly on pages 2595, 2596 and 2597. They read, as follows: * 46-22.001 Purpose, Intent and Repeal of Other Laws. The purpose and intent of this chapter are to protect, manage, conserve and replenish Florida's depleted red drum (redfish) resource, species <<Sciaenops ocellata,>> which has suffered extreme declines in abundance in recent years and which is now overfished throughout the state. This chapter will <<implement measures designed to reduce fishing pressure on this species; including>> [[initially impose]] minimum and maximum size limits, <<bag limits, closed season, and prohibition of sale,>> for [[harvestable]] redfish <<harvested from state waters,>> [[to provide interim protection for the resource while a comprehensive management scheme is being formulated for later promulgation in this chapter.]] Accordingly, it is the intent of this chapter to repeal and replace those portions of section 370.11(2)(a)4., Florida Statutes dealing with redfish. This chapter is not intended, and shall not be construed, to repeal any other portion of section 370.11(2)(a)4., Florida Statutes; any other subdivision of section 370.11, Florida Statutes; or any other general or local law directly or indirectly relating to or providing protection for the redfish resource. * * * 46-22.002 Definitions "Harvest" means the catching or taking of a fish by any means whatsoever, followed by a reduction of such fish to possession. <<"Harvest" also includes the intentional killing of a fish, whether or not it is subsequently reduced to possession.>> Fish that are caught but immediately returned to the water free, alive and unharmed are not harvested. In addition, temporary possession of a fish for the purpose of measuring it to determine compliance with the minimum or maximum size requirements of this chapter shall not constitute harvesting such fish, provided that it is measured immediately after taking, and immediately returned to the water free, alive and unharmed if undersize or oversize. <<"Land," when used in connection with the harvest of a fish, means the physical act of bringing the harvested fish ashore.>> (3)(2) "Person" means any natural person, firm, entity or corporation. (4)(3) "Red drum" or "redfish" means any fish of the species <<Sciaenops Ocellata,>> or any part thereof. <<"Native redfish" means any redfish harvested from the territorial waters of the State of Florida.>> (5)(4) "Total length" means the length of a fish as measured from the tip of the snout to the tip of the tail. (6) <<"Vessel" means and includes every description of water craft used or capable of being used as a means of transportation on water, including nondisplacement craft and any aircraft designed to maneuver on water.>> 46-22.003 Size Limits. No person shall harvest in or from the [[following designated]] waters of the State of Florida at any time, or unnecessarily destroy, any redfish of total length less than <<18 inches.>> [[that set forth as follows:]] [[(a) In the Northwest region as hereinafter defined, redfish of total length less than 16 inches. In the remainder of the state, redfish of total length less than 18 inches.]] [[For purposes of this subsection, the tern "Northwest region" shall mean and include all state waters along the Gulf of Mexico north and west of a straight line drawn from Bowlegs Point in Dixie County, southwesterly through marker 16, and continuing to the outer limit of state waters.]] [[No person shall harvest in or from the waters of the state of Florida at any time, or unnecessarily destroy, any redfish of total length greater than 32 inches, except that one (1) redfish larger than this maximum size limit may be harvested per person per day. No person shall possess at any time more than one redfish larger than 32 inches in total length, harvested from state waters.]] <<(2)(a) No person shall harvest in or from the waters of the State of Florida at any time, or unnecessarily destroy, more than one (1) redfish per day of total length greater than 32 inches.>> (b) <<No person shall possess more than one (1) redfish of total length greater than 32 inches, harvested from waters of the State of Florida.>> [[(3) It is unlawful for any person to possess, transport, buy, sell, exchange or attempt to buy, sell or exchange any redfish harvested in violation of this chapter.]] * * * <<46-22.004 Prohibition on Sale and Commercial Harvest of Native Redfish. It is unlawful for any person to: Buy, sell exchange or attempt to buy, sell or exchange any native redfish. Harvest, possess or transport, for purposes of sale or with intent to sell, any native redfish. The prohibitions contained in subsection (1) of this section do not apply to non-native redfish that have entered the State of Florida in interstate commerce. However, the burden shall be upon the person possessing such redfish for sale or exchange to show, by appropriate receipt(s), bill(s) of sale, or bill(s) of lading, that such redfish originated from a point outside the waters of the State of Florida, and entered the state in interstate commerce. It is unlawful for any wholesale or retail seafood dealer or restaurant to possess, buy, sell, or store any native redfish, or permit any native redfish to be possessed, bought, sold or stored on, in, or about the premises or vehicles where such wholesale or retail seafood business or restaurant is carried on or conducted; provided, however, that native red fish which have been lawfully harvested may be kept on the premises of a restaurant for the limited purpose of preparing such red fish for consumption by the person who harvested them, so long as such redfish are packaged or on strings with tags bearing the name and address of the owner clearly written thereon. When any person buys, sells, possesses or transports non-native redfish under circumstances requiring documentation under this section, failure to maintain such documentation, or to promptly produce same at the request of any duly authorized law enforcement or conservation officer, shall constitute a separate offense under this chapter and shall also constitute prima facie evidence that such red fish were harvested from Florida waters and are being transported and/or possessed for purposes of sale.>> <<46-22.005 Season, Bag and Possession Limits. (1) During the months of March and April, the harvest of redfish in or from state waters or possession of native redfish is prohibited. Possession of redfish by any person aboard a vessel fishing in state waters during such months constitutes prima facie evidence that such redfish were harvested out-of-season in state waters. (2)(a) Except as provided in subsection (1), all persons are subject to a bag limit of five (5) native redfish per person, per day, and a possession limit of five (5) native redfish per person. Only one (1) native red fish larger than 32 inches total length may be harvested per person, per day, and no more than one (1) such redfish may be possessed by any person at any time. Possession of redfish in excess of the applicable bag or possession limit by any person aboard a vessel fishing in state waters constitutes prima facie evidence that such red fish were harvested from state waters. (3) Nothing in this section shall be construed to permit the harvest of native red fish from any area during any time, or the use of any gear where same is otherwise prohibited by law.>> * * * <<46-22.006 Other Prohibitions. The harvest of any redfish in or from state waters by or with the use of any treble hook in conjunction with live or dead natural bait is prohibited. Gigging, spearing or snagging (snatch hooking) of redfish in or from state waters is prohibited. It is unlawful for any person to possess, transport, buy, sell, exchange or attempt to buy, sell or exchange any redfish harvested in violation of this chapter. When any provision of this chapter is violated by a person aboard a vessel, the operator of that vessel, if different from such person, shall be deemed to have assisted and participated in the violation and such assistance and participation shall constitute a separate offense under this chapter. All redfish harvested from Florida waters shall be landed in a whole condition. The possession, while on state waters, of redfish that have been deheaded, sliced, divided, filleted, ground, skinned, scaled or deboned is prohibited. Mere evisceration or "gutting" of redfish, or mere removal of gills from redfish, before landing is not prohibited. Preparation of red fish for immediate consumption on board the vessel from which the fish were caught is not prohibited.>> <<46-22.007 Severability. If any provision of this rule chapter, or its application to any person or circumstances is held invalid; the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this rule chapter are declared severable.>> Petitioners' Exhibit No. 1 (Added language underscored, de- leted language struck through) * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The proposed rules and rule amendments under challenge are designed to replace the initial redfish rules, which took effect September 12, 1985, and remain in force. Since before the current rules' adoption, statutory provisions have imposed a statewide 12-inch minimum size limit for redfish, Section 370.11(2)(a)4, Florida Statutes (1985), and forbidden the use of purse seines. Section 370.08(3), Florida Statutes (1985). Youth and Age The redfish, also known as red drum and, to ichthyologists, as Sciaenops ocellatus, has a life span of 25 to 35 years. The adult redfish or "bull reds" swim offshore in deep water ordinarily, but not always, in schools. They are commonly found with schools of blue runner and little tunny. Respondent's Exhibit No. 29, 2-1. Schools of adult redfish are not found in inshore waters. But adults do approach the mouths of estuaries to spawn in the fall, mostly in September. Eggs borne by incoming tides and newly hatched, microscopic redfish larvae swimming inland make their way through the passes and well up into the bays and bayous along Florida's coasts, often all the way into fresh water, where rivers empty into the estuaries. By April of the following year, some redfish spawned in September have attained a length of 12 inches. By the following September, all redfish spawned a year earlier have reached 12 inches in length. A redfish gains one to five pounds a year. (T.I.31) When they are 18 to 26 inches long, they weigh from 3 to 6 pounds. On average, an 18 inch redfish is about a year and a half old. Juvenile redfish also swim in schools, often with sea trout, mullet and catfish. Once a redfish reaches three or four pounds, man is one of the few creatures in the estuaries big enough to eat it. (T. I. 45) But scientists put the mortality rate for juvenile redfish at 30 percent. (T.58) Only when they are about 4 1/2 years old do redfish leave the juvenile population's estuarine habitat for the blue waters the adult population inhabits. On average they then weigh 12 to 14 pounds and have obtained a length of 29 to 30 inches. Tagging studies and age frequency data suggest that as few as two percent of redfish recruits, or perhaps only a tenth of that number, survive long enough to escape the estuary. (T.I.63) For at least the last ten years, the escapement rate has been on this order of magnitude, and the escapement rate may have been dropping during this period. (T.I.67) The size distribution of redfish taken offshore reflects significantly lower numbers of spawners escaping during the last 20-some years than previously. Spawning redfish tend to return to the point on the coast where they themselves were spawned, but this is by no means a hard and fast rule: "Drift", also called diffusion or filtration, is known to occur. Redfish range throughout the Gulf of Mexico and are found in the Atlantic Ocean as far north as New Jersey. Because redfish caught offshore are taken with purse seines, they cannot legally be landed in Florida. They are mostly brought ashore in Louisiana and mostly caught in that part of the Gulf. Juvenile redfish in the Florida Keys are not believed to swim back and forth between the Gulf and the Atlantic, but adult redfish may. Blackened Redfish Commercial fishing offshore requires a six-figure investment in boat and equipment and a crew of several men. Until relatively recently, the big offshore operations largely ignored redfish, in favor of fish that could be sold at higher prices. But a dramatic increase in the demand for redfish has provided the economic incentive to make redfish an important target of the offshore fishery since 1982 or 1983. (The redfish's new-found popularity has been attributed to a New Orleans chef, who made famous a dish called "blackened redfish.") For whatever reason, massive catches of red fish offshore have depleted the adult stock of redfish in the last four or five years by as much as half, by some estimates. Before 1983, catches averaged less than 100,000 pounds a year. In the first half of 1986, some 7,000,000 pounds of redfish were taken in federal waters in the Gulf of Mexico. In other species, declines in the number of spawners have precipitated collapses of fisheries. The pattern has been, however, that declines in spawning populations have initially caused increases, rather than decreases, in juvenile populations. In the case of the yellow croaker, for example, the juvenile population initially increased ashe adult population dwindled. Only after 80 percent or more of the spawning stock was wiped out did a dramatic drop in the juvenile population ensue, spelling the end of the fishery. Whether the juvenile redfish stock has diminished in consequence of the decline of the spawner population is not clear. According to anecdotal evidence from Steinhatchee, the redfish catch there has increased over the last five years. The evidence did not establish whether fishermen's efforts to catch juvenile redfish at Steinhatchee or elsewhere in shallow state waters have changed significantly in recent years. Steinhatchee fishermen report large schools of two to four pound redfish beginning in October. Such reports are often unreliable evidence of general conditions, however. Trends in catch data are evidence of population trends, but they require careful interpretation. For one thing, experts generally believe the commercial catch to be under-reported and the recreational catch to be overestimated. (T.I.48-9) Constant catches in response to increasing effort may reflect a decline in population. Even increasing catches are not incompatible with population decline, considered in conjunction with other factors. The most recent catch data from Charlotte Harbor suggest smaller catches last year and the year before than in immediately prior years, during which the trend was generally up. But last year's statistics particularly are subject to revision and should be treated as preliminary only. To some extent, moreover, last year's change from a 12-inch to an 18-inch minimum size limit in Charlotte Harbor would account for any decrease in catch. The Charlotte Harbor redfish catch reported for 1984 is comparable to catches reported in the mid 1950s, 1964, and 1969, and exceeds the redfish catches reported in 1967, 1966, and certain earlier years. In short, the Charlotte Harbor data since 1983 neither confirm the previous upward trend nor establish any change in trend. Catch statistics with regard to the state as a whole are similarly inconclusive. In 1979, fishermen caught 3,177,590 pounds of redfish in Florida waiters. The total catch fell by more than a third to 1,917,005 pounds in 1980, and climbed to 3,160,122 pounds in 1981, about the level of two years before, even excluding recreational catches in January and February. In 1982, the total catch increased some two and a half times to 8,977,274 pounds, although MFC's executive director suspects that the recreational catch estimates, and, therefore, the totals for 1982 are inflated. The total redfish catch fell to 5,738,260 pounds in 1983, then rose to 6,375,250 pounds in 1984. Table 5, Petitioner's Exhibit No. 4. These catches do not include adult redfish in any significant numbers. (T. I.33) Fish Scaling MFC staff used a computer model developed by one of the commissioners, William W. Fox, Jr., to predict the effects regulatory changes would have on the escapement rate. This computer model, the generalized exploited population simulator (GXPOPS), has been used to predict the population dynamics of such diverse species as pandalic shrimp, with its "protandric hermaphroditic life history strategy," Petitioner's Exhibit No. 8, p. 38, and grouper, a "protogynic hermaphroditic population." Id. Redfish have distinct genders and differ from grouper and shrimp in other important attributes. Computer models are the only tools available for predicting population changes in response to regulatory changes, however; and, as far as the evidence showed, no other computer model has been more closely tailored to redfish or would be any more likely to predict the effects of regulatory changes on redfish populations more accurately than GXPOPS. Various GXPOPS generated tables are in evidence displaying data stated in millions of pounds of redfish, or in millions of fish, but nobody knows how many redfish are in the sea, so that a principal use of the numbers is as ratios; more than one scale has been used, and not all the tables are directly comparable. The MFC considered what biological or resource objective to set in terms of a proportional increase in the rate of escapement. The greater the fraction of juvenile recruits that survive long enough to escape the estuaries, the more rapidly the diminished spawning stock could be replenished offshore. Although there is some confusion on the point, it is not an unfair characterization to say that the MFC adopted a 50-fold increase in the escapement rate as its biological goal for redfish. If, as may be the case, the present escapement rate is only 0.2 percent, a 50-fold increase would only bring the escapement rate to half the level advocated by the Gulf of Mexico Fisheries Management Council. If, as may also be the case, a dramatic decrease in the number of recruits is either imminent or already in progress, even a 50-fold increase in the rate of escapement may not increase the number of spawners leaving the estuaries to the levels needed to preserve the redfishery. The evidence falls far short of showing that the MFC has set the escapement rate goal too high. On the contrary, the evidence established that the MFC set the escapement rate goal so low that attaining the goal will not guarantee the continued viability of the redfish fishery. If, as respondent's executive director testified, it is like driving toward a cliff in the fog, the wisest thing might be to stop the car till the fog clears. Means To An End Once a biological or resource goal has been set, the question becomes how to reach the goal. The MFC considered two options that the GXPOPS model predicted would meet its resource goal without closing down the commercial fishery: a five-month closed season together with a 17 inch minimum size limit; and a six-month closed season together with a 16-inch minimum size limit, There are numerous other approaches that would not involve conferring gamefish status on the redfish. Exhibit 1 to Dr. Fox's deposition; Dr. Austin's testimony. It may be that prohibiting redfishing for three, instead of only for two months would have permitted continuation of the commercial fishery. (T.XI. 52-4) In regulated fisheries throughout the world "there is a fairly clear hierarchy," (T.X. 72), among types of regulations. Minimum-size limits, then closed seasons, then catch restrictions (bag limits for recreational fishermen and quotas for commercial fishermen) are preferred, in that order, both because within each category the magnitude of change necessary to accomplish the same result increases in descending order; and because the complexity of assumptions that must be made to predict the effect of the regulation increases for each category in descending order. In the present case, for example, an increase of three inches in the minimum size limit applicable in peninsular territorial waters, from 18 to 21 inches, would be a less drastic change than leaving the minimum size limit at 18 inches and closing state waters to the taking of redfish for five months, although either change would accomplish approximately the same increase in the escapement rate. The only assumptions that underlie minimum size restrictions concern age size correlations and the "mortality that occurs when fish have to be released [because they are too small], which is relatively well known in this fishery." (T.X. 74) Predicting the effect of closed seasons requires more complex assumptions about seasonal abundance of the fish, the likelihood that fishermen's efforts A to catch the species will drift into the open season, and the chances that scofflaws will shorten the closed season de facto. In general, a prohibition against possession is more readily enforcible than a prohibition against disposition. It is a simple matter to count the number or to measure the size of fish a person has in his possession. Proving an intent to sell is more difficult. Other Management Plans On July 20, 1986, the United States Secretary of Commerce closed the federal conservation zone, which is the area more than nine and less than 200 nautical miles out from shore, to the taking of redfish. The Gulf of Mexico Fisheries Management Council (GMFMC) has recommended that the original ban, which was to have been effective only through September 23, 1986, be extended for another 90 days pending adoption of regulations prescribing a permanent ban. The GMFMC has also recommended that the Gulf states adopt regulations that would allow at least a fifth of redfish recruits to escape the estuaries. As of January 1984, Alabama prohibited the taking of red fish smaller than 14 inches and the taking of more than two redfish larger than 36 inches, placed geographic and temporal restrictions on the use of nets, limited recreational catch to 25 fish per day and imposed a possession limit of 50 on recreational fishermen. Respondent's Exhibit No. 29, 7-16 and 17. Alabama forbids the sale of native redfish. Alabama Administrative Code Section 220-3- 12. As of January 1984, Mississippi placed gear restrictions on fishermen taking redfish, prohibited the taking of redfish in certain places (including Redfish Bayou!) and of a size less than 14 inches, limited to two per day the number of redfish exceeding 30 inches in length, limited recreational catch to 10 redfish per day, imposed a possession limit of 30 redfish, closed state waters to commercial fishing from September 15th to November 15th, and authorized closing of the commercial fishery for the remainder of any year in which landing reports indicate 200,000 pounds have been taken. Respondent's Exhibit 29,7-14,15. As of January 1984, Louisiana closed certain areas to commercial fishing, disallowed the use of certain gear by commercial fishermen in certain other areas, and imposed gear restrictions on all fishermen. Recreational fishermen were limited to two redfish per day more than 36 inches in length but were subject to no minimum size limit. Recreational fishermen were entitled to take no more than 50 spotted sea trout and redfish combined per day, and subject to a 100-fish possession limit. Commercial fishermen were subject to a 16-inch minimum size limit but to no maximum size limit. Effective August 30, 1986, counsel advise, recreational fishermen are permitted to keep no more than two red fish greater than 30 inches in length and possession of redfish on board a vessel carrying a purse seine is illegal, citing Act. No. 613, 387, 611, 660. As of July 1984, commercial fishing for redfish had been outlawed in Texas, although licensed fish importers may, and do, sell redfish from Mexico and other states. No redfish less than 16 inches long or greater than 30 inches in length could be taken. The weekend use (1:00 p.m. Friday to 1:00 p.m. Sunday) of nets and trot lines was forbidden. As of September 4, 1986, the minimum size limit was 18 inches, and hook and line was the only lawful way to take redfish. Respondent's Exhibit No. 2, pp. 78A. At the time Texas dilettantized its redfishery, commercial fishermen were taking most of the catch. Fishermen must use either fishing poles or a single "sail line" which is a "special trotline[] with one end on shore, pier or jetty, and with the other end attached to a wind-powered device or sail and attended at all times." Respondent's Exhibit No. 29, 7-7. Florida Fisheries Fishing gear and methods in Charlotte Harbor, the principal site for commercial redfishing in Florida, have been constant for some time. Since the 1950s fishermen have used synthetic, instead of natural, fibers for their nets. In December, January and February, cold fronts in Charlotte Harbor seem to "concentrate the fish" into schools that experienced fishermen can spot. There is also a "night fishery" in the summer months, when redfish are taken at first light or "dawn pink." Petitioner's Exhibit No. 9, p 31. Ninety percent of the red fish commercial fishermen catch in Charlotte Harbor are taken with trammel nets, deployed from flat-bottomed shallow draft boats 19 to 24 feet long, with beams of five to eight feet. Although "pole skiffs" are sometimes used in very shallow water (four inches or less), the boats are mostly powered by outboard motors, mounted forward in wells. In Steinhatchee, the fishermen call these boats "bird dogs." Even the largest of them can be handled by a single fisherman, and can be built with materials that cost less than $3,000. None could be safely taken very far off shore. Undersize or other undesirable fish taken in trammel nets can be returned to the water alive. Ordinarily trammel nets consist of two outer "walls" of larger mesh flanking a central, finer mesh curtain or "bunt." When the fishermen encircle the fish, the three components of the net stand vertically in the water; the lines along the upper edges of each bunt are kept on the surface by floats, while the weighted lines along the bottom edges fall to the bottom. Fish swimming through an opening in one wall and into the small- mesh bunt push the finer netting through openings in the other wall, which creates a pouch or pocket in which the fish remains ensnared, when the fisherman hauls in the trammel net. Gill nets, which are also sometimes used, consist of a single swatch with mesh calibrated to stop fish of a certain size. Smaller fish swim through while larger fish are repelled. Fish taken by gill nets die from injuries they sustain when they become lodged in an opening in the net. In Steinhatchee almost half the red fish sold to the fish houses are caught by hook and line fishermen who have salt water products licenses, which can be bought for $25 and authorize the holder to sell his catch. In Charlotte Harbor, the "bucket brigade" as they are there called makes a contribution, although a less significant one, to the commercial catch. Hook and line fishermen have the advantage, an important one in the Steinhatchee fishery, of being able to take their boats up the river into fresh water. Eighty percent of redfish are caught from boats. Making a Payday Commercial fishermen take only an eighth to a quarter of the redfish caught in Florida state waters. As far as the evidence showed, not a single commercial fisherman in Florida depends exclusively on the sale of juvenile redfish for his income. Redfish comprise less than one percent of the food fin fish commercial fishermen catch in Florida waters. Almost all of the approximately 1800 commercial fishermen in Florida who catch redfish in state waters depend on the sale of other fish for most of their income. At a given time, certain species are available and certain species are not; and the prices they fetch vary. Mullet may bring as little as $.25 a pound while pompano can go for as much as $3.10 per pound. Commercial fishermen in Charlotte Harbor, whose annual income averages $11,334 after expenses, take mullet, sea trout, pompano, mackerel, jacks and sand bream as well as redfish. Not every fisherman targets each of these fish, but the overwhelming majority do seek mullet, which they call their "bread and butter" fish. Even for those fishermen whose equipment and skills enable them to pursue several species, the different species are not readily interchangeable. Rather than offering each load of fish they catch to the highest bidder, commercial fishermen like the individual petitioners who testified in the present case, ordinarily sell their catch to a single fish house, year after year. This practice offers some protection against seasonal market fluctuations. When roe mullet begin to run in the fall, demand for these and other fish exceeds the supply. But, during the summer months, the fish house operators will not buy mullet from fishermen with whom they have not already established a relationship. Because supply greatly exceeds demand in summertime and because freezer space is limited, fish house operators impose quotas even on fishermen with whom they have longstanding relationships. The fish houses do not sell all of the catch locally. About half leaves Florida. Exporters drive refrigerated semi-trailers to the fish houses where they buy fish by the 100-pound box for resale out of state. Georgia, their nearest destination, is several hundred miles from Charlotte Harbor, the principal site of redfishing in Florida waters. Except during the roe mullet run, these drivers call ahead to inquire of the fish houses how many "fancy fish" they have, "fancy fish" meaning redfish or sea trout. If a fish house has no redfish or sea trout on hand, the drivers may pass it by altogether or, at best, buy only a few boxes of mullet. Explicitly or otherwise, fish houses with redfish to sell may condition their sale on the buyer's taking, along with each box of redfish, four to ten boxes of mullet, depending on market conditions. Fishing For Fun According to those who have studied the question most carefully, including Dr. Holland, who testified at hearing, the attractiveness of recreational fishing trips depends less than might be expected on the hope of catching any fish at all, much less one of a particular species, when several are available. Very few recreational fishermen "limit the goals of their fishing experience to catching fish. The majority are more interested in perceiving freedom, escaping from responsibilities, and enjoying an outdoor natural environment." Petitioner's Exhibit No. 17, p. 137. Things like "being exposed to polluted surroundings... ruin[] a fishing trip more than not catching a fish. These conclusions are based on answers given by a sample of fishing association members who actively fish (an average of 31 days a year)." Petitioner's Exhibit No. 17, p. 136. As Mr. Raulerson explained with reference to tourists who fish in Florida's salt waters, the prospect of catching a fish may be less significant than the prospect of being out on the water in weather much warmer than what the tourist has left behind; and sighting a porpoise can be the principal benefit tourists derive from a fishing trip. For most recreational anglers, keeping a fish to eat is even less important than catching it. The only one of the intervenor's witnesses who testified on the point, Richard A. Shapley, a Tallahassee resident and an IBM employee who goes fishing every weekend, characterized himself as "more of a sports fisherman than a fish eater," (T.VII p. 16) and candidly admitted that he would not be particularly bothered by having to release all the redfish he caught. Currently, only 7.6 percent of sports fishermen catch more than five redfish per trip. Their catch amounts to eleven percent of the recreational catch, which has accounted for three quarters to seven eighths of all the redfish harvested in Florida waters. Almost five percent (4.975 percent) of marine sport fishermen in Florida caught (but did not necessarily seek) or sought (but did not necessarily catch) redfish, according to the most reliable statistics available for the period 1979 to 1984. An economist employed by the Sport Fishing Institute (SFI), whose "programs serve the long-term interests of the sport fishing industry, which provides the base of ... [SFI's] financial support," Respondent's Exhibit No. 1, p. 1, offered the opinion that up "to $121,416,000 in [1985] retail marine sport fishing expenditures can be attributed to redfish." Respondent's Exhibit No. 1, p. 11. Marine sport fishing is without doubt an important source of income for many Floridians, and retail marine sport fishing expenditures figure significantly in the state's economy, but the SFI estimate of retail expenditures attributable to redfish is a very substantial overstatement. To obtain the figure of $121,416,000, SFI's economist used a study that attributed to fishing not only all sums expended on fishing trips, but also all food and lodging expenditures for the whole of each day on which a tourist did any fishing; then assumed that catching or seeking redfish was the sole motivation for 4.975 percent of the fishing trips sportsmen made in Florida's salt waters. Neither of these assumptions bears up under scrutiny. Even on the assumption, which the evidence showed to be contrary to fact, that all fishing trips arise wholly from a desire to catch fish, the use of the 4.975 percent factor was not justified. At least for purposes of the present case, retail expenditures made by fishermen who had no desire or intention to catch redfish can hardly be said to be attributable to the availability of redfish. In addition, the number of recreational fishing trips taken by anglers in pursuit of redfish should, at the very least, be reduced to allow for trips on which the hope of taking other species was the dominant purpose. End of An Era If the proposed rule changes take effect, commercial fishing for redfish in Florida waters will come to an end. The effects on commercial fishermen would be overwhelmingly adverse. The one possible silver lining is that the loss of redfish as a commercial species would make mullet so much harder to sell that marginal commercial fishermen would look for other work, leaving more fish for the more skilled full-time commercial fishermen. Red fish sell for about eighty cents per pound ex-vessel. At least one fish house has had recent offers of $1.45 or $1.50 per pound for redfish. The economic impact statement puts the secondary wholesale value of redfish at 2.8 times the ex-vessel price. Grocery stores, seafood markets and restaurants sell redfish at retail. On the assumption that the retailers could substitute imported redfish for native redfish, if commercial fishing is banned by the proposed rule, the economic impact statement ignores retail losses and predicts a "total annual longterm commercial loss ... [of] approximately $4.733 million in income [which] could force some fishermen and fish houses that rely primarily on redfish out of business." Petitioners' Exhibit No. 5, p. 2. The economic impact statement's analysis assumed a loss of commercial catch of only 961,646 pounds, the 1982-1984 average. On the same assumption, an economist analyzing the problem from the perspective of sport fishermen, predicted the total economic impact of closing the commercial fishery would be $6,494,629 annually, taking retail sales into account and using certain multipliers. Respondent's Exhibit No. 1, pp.9 and 10. Neither of these calculations takes into account the economic value of redfish as leverage in mullet sales, although the economic impact statement does mention that "having no redfish to sell will hurt the mullet sales." Petitioners' Exhibit No. 5, p. 21 Fewer, Fatter Fish for Frying If the proposed rules take effect and the fishery does not collapse, the escapement rate will increase by a factor of 58.43 and, except for the fish that escape, the recreational fishermen will have available not only the fish now caught by commercial fishermen, but also all of the predicted increase in the weight of the redfish catch. The present recreational catch, estimated at 2.1 million pounds, before the new minimum size regulations took effect on September 12, 1985, would grow to 5.65 million pounds at equilibrium three or four years out. Petitioners' Exhibit No. 4, p. 10, All of this increase would be attributable to an increase in the average size of the fish caught, because, over the same period, the number of fish caught by recreational anglers would fall from 1,190,000 to 1,030,000. Id. The precise effects these changes would have on the recreational fishing industry are not clear. The two-month closed season would have an adverse affect, since some 7.4 percent of recreational fishing trips on which redfish are caught or sought now occur in March or April. On the other hand, there would be more redfish, they would weigh more on average, and they would be more likely to be caught not only during the ten months they could lawfully be taken, but also during the two months when the law would require fishermen to release them, if caught. The proposed rule would make it more likely that unskilled fishermen who would not otherwise have caught a redfish will catch redfish, and that those who would otherwise have caught less than five will be more likely to catch as many as five. T.X. Skilled fishermen might be discouraged by the proposed five fish bag limit. Increased abundance would presumably be irrelevant to the 7.6 percent of recreational anglers now catching more than the proposed bag limit of five. They may, indeed, be lured to Alabama where the bag limit is 25, or to some other site. The effects a change in the availability of redfish might have on recreational fishing were the subject of much testimony at the hearing. The economic impact statement assumed a response elasticity for non-residents" of 0.1203, i.e., that an increase of eight percent in pounds of redfish available would cause an increase of approximately one percent of the number of fishing trips on which redfish were caught or sought. The 0.1203 figure is "Green's coefficient," and was used by Green to correlate changes in numbers of fishing trips taken by non-residents already in Florida with changes in multi-species catch (in pounds) per trip, not with changes in the total number of pounds of a particular species available to be caught. As far as the evidence showed, moreover, the weight of fish in Green's study was a good proxy for numbers of fish. In the present case, the increase in weight would occur despite a reduction in the number of fish caught and kept. Despite all the problems, however, Green's coefficient is a much more satisfactory measure of elasticity than any other offered at hearing. The economic impact statement summed up the situation fairly by saying with respect to recreational fishing, "little is known of the effects of being able to harvest less of one species of fish, especially in saltwater where a multitude of species are available as substitutes." Petitioner's Exhibit No. 5, p. 3. The converse is also true, although fishermen "tend to go to the spot where... [they] think... [they] can catch the most fish." But the proposed rules would decrease, not increase, the numbers of redfish that recreational fishermen could take. (T.V. 148) Studies in evidence show that increased availability of fish attract fishermen to the site of the increase. Even if it is assumed that bigger fish attract fishermen just as greater numbers of fish do, it does not follow that the total number of fishing trips occurring everywhere increases, rather than that fishing has fallen off at alternate sites within the fisherman's geographical range. (T.V. 147-148) For many tourists the geographical range will be determined by factors unrelated to fishing. Tourists, including tourists who eventually go fishing in salt water here, come to Florida for many different reasons. Perhaps the children want to go to Disneyworld. Whether a fishing trip is among their recreational pursuits once they arrive depends on how attractive a fishing trip seems in relation to other recreational possibilities. This depends, in turn, on a host of other factors, including, for example, relative cost. The cost of a fishing trip is five times more important than the availability of fish, as a variable determining whether the fishing trip will be taken. Even anglers choosing a Florida vacation in order to go fishing will not necessarily take the availability of redfish into account. Enforcement Considerations Size restrictions are more easily enforced against commercial fishermen than against recreational fishermen, because almost the entire commercial catch moves through licensed, frequently inspected fish houses, while the low numbers of marine patrol officers make enforcement of such regulations against recreational fishermen a haphazard affair. The so-called night fishery for redfish during summer months occurs at first light. Even if fish are taken while it is dark, they must, with few exceptions, move through easily monitored channels if they are to be distributed commercially. Closed seasons create the possibility of erosion when they begin, by fishermen jumping the gun, and when they end, by fishermen persisting unlawfully. Redfish can be frozen, which makes it difficult to determine just when they were caught. Under the proposed rule, however, frozen redfish can be imported, so the possibility of passing off native red fish as imports would exist, just as, in a mixed fishery with a closed season, the possibility of passing off redfish taken out of season as having been taken lawfully would exist. There is also the possibility, if bag limits apply to recreational, but not to commercial, fishermen that recreational fishermen will buy salt water products licenses to escape the bag limits. Such a strategy would appeal to recreational anglers who successfully fish for redfish now. Data from other, similar fisheries suggest that successful anglers' catch goes up proportionally much less than marginal or unsuccessful fishermen's catch in response to increased abundance. Recreational vs. Commercial Economic analyses of intergroup reallocations assume that the marginal utility of income is the same in each group. Since this is unlikely to be the case, such analyses are of limited importance. The accepted way to compare economic benefits attributable to commercially caught redfish and those attributable to redfish caught recreationally is to sum the producer's surplus and the consumer's surplus for the commercial catch and to do the same calculation for the recreational catch, and then compare the two. But there was virtual unanimity that adequate data do not exist to make these calculations. This makes the expenditures approach to valuation of red fish taken recreationally one of the few possibilities for quantifying their economic importance. But in a very real way, this approach is all wrong. Attributing fishermen's food and lodging costs to redfish they catch is analogous to allocating to each redfish sold in a restaurant the entire price of the meal, the babysitter's wages, and costs incurred for transportation to the restaurant. An increase in the price of gasoline results in an increase in the value assigned to redfish taken by recreational fishermen, although higher gasoline prices actually make fishing trips and the fish they might yield less attractive. Dr. Austin offered the most interesting approach, an approach which it is instructive to apply to the numbers Mr. Davis supplied on the last day of hearing. Dr. Austin's technique requires identifying the increase in recreational catch attributable to closing the commercial fishery. A close approximation is possible. The proposed rules would close down the commercial fishery by two overlapping devices: the bag limit and the ban on sale. Mr. Davis supplied the GXPOPS predictions of equilibrium effects for the "18 inch option," which differs from the proposed rules in that it has no bag limits does not forbid the sale of native redfish, and has no closed season. According to Mr. Davis, respondent's executive director, recreational fishermen would take 3,950,000 pounds and commercial fishermen would take 1,112,000 pounds of redfish at equilibrium, with the 18 inch option, assuming the fishery did not collapse. At equilibrium under the proposed rules, again assuming the fishery did not collapse, the total annual catch (which would all be recreational) is predicted to amount to 5,650,000 pounds. At equilibrium, the recreational catch with the proposed rules in place would exceed the recreational catch under the 18 inch option by 1,700,000 pounds 1/ (5,650,000 minus 3,950,000 equals 1,700,000). There would be no commercial catch under the proposed rules, but the 18 inch option would result in annual commercial catches of 1,112,000 pounds, at equilibrium. With the methodology developed at page four of the economic impact statement, Petitioners' Exhibit No. 5, it is possible to predict a 5.2 percent increase in recreational trips, or an increase of 14,641 fishing trips annually attributable to choosing the proposed rule over the 18 inch option. (283,078)(.1203)(1,700,000 divided by 3,950,000). If the proposed rules are adopted, the commercial sector's loss, at equilibrium, of 1,112,000 pounds a year may be said to have made possible the increase in recreational trips. Dividing the number of pounds lost by the number of trips gained yields the number of pounds of catch commercial fishermen would have to forego, in order to induce each additional recreational trip. Dividing 1,112,000 by 14,641 yields 76 pounds of commercial catch foregone for each recreational trip induced. The economic impact statement values each recreational trip at $53, citing Bell's study. Petitioner's Exhibit No. 5, p. 7. This compares with the retail price of 76 pounds of redfish - at $2.70 per pound - of $205.20. Another way to view the economic consequences of reallocation from the commercial to the recreational sector is to compare the relative costs of production, and efficiencies of distribution. Commercial fishermen produce redfish at an approximate cost of $.50 per pound, then introduce them into marketing channels, where they become available to all segments of the population. In contrast, SFI's economist acknowledged that it costs recreational fishermen somewhere between $19.94 and $31.37 per pound to harvest redfish, which is then available only to the sportsman and his circle of acquaintance. In short, the evidence did not establish an economic justification for closing down the commercial fishery and reallocating most of the fish that would have been taken commercially to the recreational sector. Neither the economic impact statement nor its author, who testified at hearing, claimed a net economic benefit would flow from a reallocation of redfish from the commercial to the recreational fishery. The issue of reallocation is, at bottom, a political question. Let Them Eat Mullet Although some people, like Mr. Shapley, may not be particularly interested in eating redfish, redfish is believed by many to be desirable as food. This includes people who do not own boats or go fishing. If native redfish becomes unavailable to Florida consumers, who would otherwise have eaten it, they will have to substitute frozen, imported redfish, or another species of fish or some other source of protein.
Findings Of Fact Acting on an anonymous tip, Michael L. Thomas, a Wildlife Officer with the Florida Game and Fresh Water Fish Commission, examined property in the Turnbull-Hammock area of Volusia County at a location between Edgewater and Oakhill and immediately adjacent to U.S. Route 1. This is a rural area which is unfenced and entirely open to the public. The particular property in question is reached by a substantial shell road running at a right angle from U.S. 1 and deadending in a borrow pit. A canal also is at right angles to the unnamed shell road at its borrow-pit end. The borrow pit is owned by Doug Cole. A smaller dirt road or jeep trail branches off from the shell road and passes between some thick trees and underbrush. Beyond the trees and underbrush, the jeep trail curves off slightly to the left where a pole barn or construction shack owned by Tom Foster is located. Instead of curving left, one can proceed on foot several more yards on a cleared pathway until one reaches a growth of vines which crosses the pathway and forms a sort of barricade across it. If one goes through the vines, one sees several narrower, winding, overgrown footpaths meandering back through the overgrowth quite some distance. The area beyond the vines is completely overgrown with tall weeds and brush except for these footpaths. Officer Thomas followed the route aforedescribed and followed one of the overgrown footpaths where he discovered approximately twenty-eight marijuana plants growing in plastic tubs deep in the underbrush. The plants were 8-10 feet tall and needed water. Officer Thomas' observation of the plants convinced him that the person who had cultivated them would have to water them soon. On the ground eight or ten feet before he reached the growing marijuana, Officer Thomas observed a pink plastic watering can, a metal can, some potting materials, and an empty box of "Miracle Grow" plant food. Officer Thomas and Sergeant Hightower "staked out" the area during the afternoon of September 16, 1989. More than three hours into their "stake out," the officers observed Petitioner park his truck at the pole barn and meander through the underbrush in the direction of the marijuana. He occasionally stopped and looked around him as he did so. Once Petitioner was beyond the vines, the officers could not "eyeball" him any longer. They did not see him touch any marijuana. They heard the sound of water cans being moved, and when Petitioner reappeared through the underbrush, he was carrying two empty containers he had picked up from those originally observed by Officer Thomas eight to ten feet in front of the marijuana crop. The officers interpreted Petitioner's looking around to have been checking to be sure he had not been followed or seen and interpreted his selecting the particular containers as evidence that he knew where and how to water the marijuana. The Petitioner then walked toward the canal with the containers and hunkered down on its bank. When he did so, Officers Thomas and Hightower sprang from their hiding place and placed Petitioner under arrest. They never saw him draw or scoop up any water into the containers, and the most credible evidence is that he stayed on the high side of the bank and did not approach the edge of the water in the canal below. Petitioner is a cement worker by trade. He stores his equipment, including his form boards, in the pole barn. The owner of the pole barn, Tom Foster, does not charge Petitioner any rent for this use. Petitioner was familiar with the area as far inward as the pole barn. On the day in question, the area immediately surrounding the pole barn was strewn with debris evidencing that teenagers had used it as a "partying area." It also was littered with discarded furniture and old boards that Petitioner identified as belonging to Tom Foster. On September 3, 1989 Petitioner's girlfriend had given him a used shotgun for deer hunting. On the day in question, a weekend, Petitioner had chosen Tom Foster's property to "tryout" that shotgun and see what type of pattern it shot. Petitioner explained that he had walked past all the other debris at the pole barn without selecting any of it as a target because it probably belonged to Tom Foster, the man who let him store his equipment without fee, and Petitioner did not want to lose Tom Foster's goodwill. Petitioner testified that he looked around himself as he walked and selected the containers far away from the pole barn because they did not seem to be Tom Foster's, that he had not even seen the marijuana let along recognized what it was, and that he was carrying the containers back to his truck to fetch his gun when a burrowing animal in the bank of the canal/ditch caught his attention and he hunkered down to watch it. Based on DOR's photographic exhibits and Officer Thomas' testimony, it is found that the tubs in which the marijuana was growing were obscured by underbrush from the view of anyone standing at the location of the watering and potting materials, although the marijuana tops could be seen from that point if one were looking in that direction. Officer Thomas readily agreed that many untrained people cannot recognize marijuana growing in the field. The officers did not note whether any burrowing was going on in the canal bank, but their subsequent search of Petitioner's truck turned up the shotgun and some birdshot. Officer Thomas testified that a better "pattern" effect could be obtained by aiming the shotgun at a larger object than the water containers and that some of the birdshot found with the gun might be lost on the smaller objects. He therefore ascribed no credibility to Petitioner's choice of the watercans as targets. No drug paraphernalia or materials for cultivation were found on Petitioner's person or in his truck. Petitioner was charged, tried before a jury, and acquitted of the criminal charge "manufacture of cannabis." A final judgment was entered to that effect. In deference to DOR's concerns expressed at formal hearing, it is noted that the judicial outcome of the criminal charge is not res judicata nor "law of the case" in the instant administrative proceeding which embraces different issues and burdens of proof. It does, however, support Petitioner's assertions that he has never used drugs or been convicted in connection with them. The original September 1989 DOR assessment used as a component base an estimated 24.25 weight of the 28 marijuana plants. The "estimate" was made by Mr. Wattercutter, who prepared the original assessment. Mr. Wattercutter telephoned the Volusia County State Attorney's Office, copied the arrest warrant, and interviewed Officer Thomas. He accepted what was told him without DOR calculating a chain of custody, calibration of scales, or finding out what parts of the marijuana had been weighed, or the quality or gender of the marijuana. The original DOR assessment used as a component multiplier a value assigned by the Florida Department of Law Enforcement price list in effect at that time. That list assigned a value of $600 per pound of marijuana. Mr. Wattercutter also applied a fraud penalty in accord with DOR policy. The original assessment amounted to $16,368.75. On August 20, 1990, Mr. Wattercutter and others who did not testify weighed some marijuana in two boxes in the evidence room of the Sheriff's Office in DeLand, Florida. After subtracting the weight of the empty boxes, Mr. Wattercutter applied the FDLE price list figure of $600 per pound and reassessed Petitioner's tax liability (excluding the inapplicable fraud penalty) at $5,850. The chain of custody of the marijuana was not presented. No evidence of calibration of the scale used was presented. The predicate for the $600 per pound valuation made by FDLE was presented through the deposition of Sherry Gomez, which is not persuasive that the charted figure is probative of the value of the marijuana in this case.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order dismissing the assessment/amended assessment against Petitioner. DONE and ENTERED this 29th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-10 Except as modified to exclude subordinate material, accepted. Respondent's PFOF: 1 Rejected as not probative. Undoubtedly, the fact that Ms. Gomez' deposition was taken by telephone contributed to its disjointed nature, but the predicate for the accuracy of the chart/graph was insufficient as set out in FOF 15. 2-4, 9 Accepted except for subordinate and cumulative material. Not adopted because the facts as found more accurately reflect the record as a whole. 5-8 Except for the last sentence, accepted except where subordinate or unnecessary. The last sentence of 8 is rejected as not supported by the more credible record evidence as a whole. 10 Subordinate as stated. Accepted that the plants were marijuana. Copies furnished to: Mark T. Aliff Assistant Attorney General Department of Legal Affairs Tax Section, The Capitol Tallahassee, Florida 32399-1050 David C. Robinson, Esquire Suite 6 1326 South Ridgewood Avenue Daytona Beach, Florida 32114 J. Thomas Herndon Executive Director Department of Revenue The Capitol Tallahassee, Florida 32399-0100 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether Petitioner is entitled to additional compensation for fishing nets that he sold to the State of Florida under the Net Buy-Back Program.
Findings Of Fact Petitioner is a commercial fisher who is an affected person under the Florida Net Ban, which is set forth in the Florida Constitution, Article X, Section 16. Section 370.0805(5), Florida Statutes, which became effective on July 1, 1995, establishes the Net Buy-Back Program. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. The Legislature appropriated $20 million to the Seafood Workers Economic Assistance Account (the Account) to fund the payments authorized in Section 370.0805, as well as agency expenses in administering the program. Section 370.0805(3)(b) directs Respondent to purchase nets "according to the availability of funds on a first-come, first-served basis determined by the date of receipt of each completed application." By Net Buy-Back Application signed on July 5, 1995, and filed with Respondent at 7:39 am on the same day, Petitioner applied to sell nets to the State of Florida. His application form is completely filled out and shows two saltwater-product license numbers, both for vessels. The application form calls for the applicant to list the "TOTAL NUMBER OF YARDS OF EACH NET TYPE THAT YOU INTEND TO SELL." The form lists five categories of nets: gill (49 meshes or less); gill (50 meshes or more); beach, purse, seine; trawl; and trammel. The former gill net is a shallow-water gill net. The latter gill net is a deepwater gill net. Petitioner listed on his application "maximum allowed." He did not otherwise fill in the blanks as to types or yardage of nets. After checking a data base maintained by the Department of Environmental Protection, Respondent found that Petitioner held three saltwater- product licenses. Respondent thus processed Petitioner's application as though he had three licenses, not two. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 18 nets" and set an appointment for him to turn in the nets on September 14, 1995. A few days prior to September 14, a representative of Respondent telephoned Petitioner and told him that the net buy-back appointment was canceled and Respondent had shut down the program temporarily in order to make changes. The problem was that Respondent had discovered that the Account might be exhausted before Respondent had paid for all of the nets that fishers might lawfully seek to sell to the State. Respondent thus canceled Petitioner's appointment and suspended payment on outstanding vouchers while Respondent considered changes in its administration of the program. The purpose of the Net Buy-Back Program, as provided by Section 370.0805(5)(a), Florida Statutes, was to allow, "[a]ll commercial saltwater products licensees and persons holding a resident commercial fishing license" to apply to Respondent "to receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net fishing." The emphasis was on economic assistance. Section 370.0805(5)(a) authorizes Respondent to make payments only "in nonnegotiable amounts not intended to reflect the actual value of the nets." Section 370.0805(5)(a) assigns payment amounts of $3500 for beach, purse, or seine nets of at least 600 yards in length; $500 for trawls and shallow-water gill nets of at least 600 yards in length; and $1000 for trammel nets of at least 600 yards in length and deepwater gill nets of at least 600 yards in length. Section 370.0805(5)(a) states that, except for trawls, nets of less than 600 yards in length shall be "valued proportionately." Section 370.0805(5)(c) limits the number of nets that a commercial fisher could sell, based on his annual earnings from the sale of eligible saltwater products. The limits range from four nets, for licensees whose annual earnings average from $2500 to $4999 in earnings, to ten nets, for licensees whose annual earnings average more than $30,000. Respondent relied on another data base from the Department of Environmental Protection to determine the average yearly earnings of applicants. The Department of Environmental Protection maintains records of each licensee's trip tickets, which disclose earnings. The only other limit in the statute as to the type and number of nets to be purchased is that, under Section 370.0805(5)(d), "[n]o licensee may be paid for more than two ... trawls." Respondent reviewed the applications that it received from the initial fishers who filed applications. The purpose of the review was to determine whether the funds in the Account would be sufficient to cover the nets that the State was to be purchasing. Respondent found from the applications that seine nets represented a small percentage of the nets that fishers intended to sell to the State. Relying on this information, Respondent calculated the potential encumbrance of $6.5 million on the Account, based on an average payment that reflected the absence of a significant number of the most expensive seine nets. Applying liberal eligibility criteria, such as calculating the number of nets that each applicant could sell based on the number of licenses that he held, Respondent raised its estimate of the potential encumbrance to $8.775 million. But in recalculating the potential encumbrance on the Account, Respondent still assumed that the average payment per net would not be affected by a significant number of seines. Respondent began receiving nets in early August, 1995. Through the first three weeks of August, Respondent purchased seine nets at the relatively low rate that it had anticipated. After this point, fishers started turning in much larger numbers of seine nets than they had listed in their applications. During this first phase of the program, Respondent paid fishers for whatever types of nets they presented at their net buy-back appointment. Respondent paid a fisher entitled to sell six nets for seine nets if he turned in seine nets, even though he had listed only gill nets on his application. This policy jeopardized the solvency of the Account because the payments to fishers turning in all seine nets were much greater than the figures that Respondent had used in calculating the potential encumbrance on the Account. From the fishers' perspective, the program acquired an element of chance, as applicants with earlier appointment times-which did not necessarily correspond with earlier-filed applications-netted fine catches of economic assistance at the expense of their counterparts, upon whom destiny had bestowed later appointment times. By late August, the applicants began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Before long, Respondent was purchasing nothing but seines. After a brief period of trying to stay the course, Respondent decided on September 6, 1995, that it had to take action or else the Account would be exhausted before the State had purchased all of the nets listed on the applications. Respondent immediately suspended the program and developed new criteria to apply to all persons not yet paid for their nets. As of September 6 (retroactive to August 28), Respondent began the second phase of the Net Buy-Back Program. In this phase, Respondent paid for seine nets, but only up to the greater of the number of seines shown on the application or the number of seines based on past use of seines. Respondent determined the latter figure from the trip tickets, which also contained information as to types of catch, from which Respondent could infer the type of net used. As in the first phase, Respondent continued to insist the fishers turn in seines if they were being paid for seines. Petitioner's application lists no seine nets. But his application put Respondent on notice that Petitioner sought to sell as many nets, as at high a value, as the law would permit. This would mean seine nets. And based on his possession of three licenses, this would mean 18 seine nets, given Petitioner's earnings during the relevant period. Petitioner claimed that he turned in seine nets. If turned in during the first or second phase of the program, Respondent would have treated these nets as seine nets. But these nets were turned in during what became the third phase of the Net Buy-Buyback Program. After canceling Petitioner's net buy-back appointment, Respondent sent Petitioner a letter, setting another net buy-back appointment for October 2. The letter states that Respondent would purchase a total of 18 nets, but none could be a seine net. Dissatisfied with the effects of the restrictions introduced by the second phase of the program, Respondent added a third phase by promulgating an emergency rule defining "seine nets," effective October 2, 1995. This third phase, which did not change Respondent's policy of paying for the greater number of seines as shown on the application or the trip tickets, restricted the kinds of nets that fishermen could turn in as seine nets. Rule 38BER95-1 provides that, for the purpose of "the implementation of the Net Buy-Back Program" described in Section 370.0805(5): "Gill net" means a wall of netting suspended vertically in the water, with floats across the upper margin and weights along the bottom margin which captures fish by entangling them in the meshes, usually by the gills. Any net offered for the net buy-back program that consists of at least fifty-one percent (51 percent) gill net, shall be considered a gill net. "Seine" means a small-meshed net suspended vertically in the water, with floats along the top margin and weights along the bottom margin, which encloses and concentrates fish, and does not entangle them in the meshes. No net offered for the net buy-back program shall be considered a seine if the wings are composed of entangling mesh. * * * THIS RULE SHALL TAKE EFFECT IMMEDIATELY UPON BEING FILED WITH THE DEPARTMENT OF STATE. Effective Date: October 2, 1995 Under the emergency rule, Respondent's nets were not seines, but were gill nets because they were at least 51 percent, by area, gill net.
Recommendation It is RECOMMENDED that the Department of Labor and Employment Security enter a final order directing payment from the Account to Petitioner of the difference between the amount he has already received and the amount he would have received had all 18 of the nets that he delivered to Respondent been valued as seine nets. ENTERED on October 4, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 4, 1996. COPIES FURNISHED: Secretary Douglas L. Jamerson Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Charles L. Wilson, pro se 9210 West Robson Tampa, Florida 33615 Louise T. Sadler Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
Findings Of Fact Petitioner is the owner and developer of a housing subdivision and its associated canal system known as "Alligator Harbor, Franklin County, Florida." Petitioner's property was originally a saw grass marsh which was, during times of high water, connected to Alligator Harbor by a shallow creek. In 1971, Petitioner's agent, Harry Morrison, filed an application with the Trustees of the Internal Improvement Trust Fund seeking to connect a proposed race-track shaped canal built on the upland property to Alligator Harbor by way of an access channel 120 feet wide, narrowing to 15 feet wide, 598 feet long, with depths at mean low water ranging from .1 foot to 3.2 feet. Construction of the inland canal began in 1972, and was completed in January of 1973, prior to final action by the Trustees on the access channel application. In order to construct the inland canal, dredging was conducted around the perimeter of the saw grass pond, with the dredged material being deposited in the center of the dredged area, thereby creating an oval inland canal surrounding an island created by deposition of the dredged material. At the same time, further dredging from the oval canal through the natural tidal creek was performed in order to straighten the creek. In February, 1973, a connection was made to Alligator Harbor from the inland canal when the creek was dredged to allow removal of the dredging equipment through the waters in Alligator Harbor. The connection between the upland canal and Alligator Harbor was then plugged, although an overflow pipe, two feet in diameter, was left in the plug. There is no reliable evidence in the record of this cause to establish either the elevation at which this overflow pipe was located, or the volume or frequency of water exchanges between the inland canal system and Alligator Harbor through that pipe. By April, 1973, the plug apparently had been washed out, but was replaced within a month at the request of the Trustees. The 1971 application to the Trustees for a permit to connect the canal to Alligator Harbor was subjected to the customary permit review process, which included requests for comments from other agencies. The Department of Natural Resources and the Game and Fresh Water Fish Commission submitted comments and recommendations for denial, respectively, in March and May, 1972. The Department of Pollution Control, DER's predecessor agency, in February, 1973, recommended denial of the request on the grounds that the receiving waters were approved shellfish harvesting areas. The proposed project remained dormant for a number of years, apparently because the applicant wished to make modifications in the proposal. Finally, on March 25, 1976, a Letter of Intent to deny was sent to the applicant, whereupon the application was withdrawn. Over a period of years, the material placed in the canal plug by Petitioner was washed away. This process was completed during a storm event, apparently in 1978. The washout of the plug and overflow pipe resulted in a direct water connection between the upland canal and Alligator Harbor. The upland canal system is now affected by daily natural tidal cycles. The upland canal system, as presently constituted, consists of an oval canal, approximately one mile in length, with a single connection to Alligator Harbor at the site of the washed out plug and overflow pipe. This oval canal surrounds the aforementioned island created by depositing material dredged from the former saw grass marsh. The upland canal varies in depth from areas that are totally exposed at low tide, to other areas that at times exceed ten feet in depth. The average depth of the canal is approximately six feet at low water. The banks of the canal are unstabilized and eroding. Layers of organic material exist on the banks, apparently as a result of deposition there during the dredging process. In addition, a thick layer of organic material exists on the bottom of the canal. On February 27, 1980, Petitioner submitted to DER a partial after-the- fact permit application to connect the inland canal system to Alligator Harbor by dredging an access channel 400 feet long by 40 feet wide, to a depth of -4 feet. In addition, the permit application sought to shoal a deed depression in the interior canal to -5 feet mean low water; fill an indention in the canal waterway; replace two metal culverts which currently connect the canal beneath a causeway to the island with a box culvert, 13 feet wide, to a height of +5.2 feet mean high water, and a depth of -4 feet mean low water. After these proposed modifications, the canal system would average -4 feet mean low water, with a maximum depth of -5 feet mean low water. DER notified Respondent on March 17, 1980, that the application was deemed incomplete. When no satisfactory response to the letter notifying Petitioner of the incomplete status of his application was received, a Letter of Intent to deny was forwarded to Petitioner on May 28, 1980, stating the following reasons for denial of the permit application: The proposed project is located in Class II waters, approved for shellfish harvesting, and dredging in such waters is prohibited by Rule 17-4.28(8)(a) Florida Administrative Code; Petitioner failed to provide reasonable assurances that the project would not violate state water quality standards for Class II waters contained in Chapter 17-3, Florida Administrative Code, particularly7for the parameters of dissolved oxygen (DO), nutrients, bacteriological quality and biological integrity; The proposed project is located in Alligator Harbor, which has been designated an Outstanding Florida Water (OFW), and no DER permit or water quality certification may be issued for the construction of a stationary installation which significantly degrades water quality in OFWs either alone or in combination with other stationary installations, pursuant to Rule 17-4.242(1)(a) Florida Administrative Code. Further, DER advised Petitioner that he had not affirmatively demonstrated that the proposed activity or discharge was clearly in the public interest Pursuant to Rule 17-4.242(1)(a)2, Florida Administrative Code, and that existing ambient water quality within Alligator Harbor would not be lowered as a result of the proposed activity or discharge in accordance with Rule 17-4.242(1)(a)2b, Florida Administrative Code. The project and impacts from similar projects would degrade Alligator Harbor, and would interfere with the conservation of fish, marine and wildlife or other natural resources and natural shoreline processes to such an extent as to be contrary to the public interest in accordance with Rule 17-4.29(6)(a), Florida Administrative Code. Alligator Harbor, which, as indicated above, is a Class II water body designated for shellfish harvesting, and which has also been declared an Outstanding Florida Water, is a shallow marine basin with sediments ranging from soft mud to sand. Large marsh areas bordering on the harbor produce large quantities of organic detritus, and are characterized by soft, organic bottoms. Because of the ready exchange of waters between many of these marshes and Alligator Harbor, that water body likewise is characterized by an organic bottom, where fine, silty sediments have settled out. As indicated above, Petitioner's application to dredge an access channel into the waters of Alligator Harbor indicates that the channel's length will be 400 feet from its junction with the inland canal system, and that it will be dredged to a depth of -4 feet. At 200 feet offshore of the mouth of the inland canal system Alligator Harbor has a natural water depth of approximately one foot, dropping off to two feet 400 feet offshore, and three feet at a distance of 500 feet offshore. Because of the soft organic bottoms present in Alligator Harbor, the access channel may be expected to fill in with the fine sediments present in the system within a short period of time. As a result, in order to keep the channel available for its obviously intended uses, extensive maintenance dredging will have to be performed, perhaps as often as annually. In fact, the canal systems already existing in the Alligator Harbor area have evidenced such a maintenance dredging problem, and have all begun to shoal in extensively within a year from their construction. Frequent maintenance dredging results in a constant disturbance of existing biological systems. These systems may repopulate after a single maintenance dredging event, only to be disturbed again when additional dredging is necessitated to alleviate shoaling problems. Where maintenance dredging occurs, total elimination of biological systems in the area of dredging results. As the areas in either the navigation channel or portions of the inland canal shoal in as a result of the soft bottom sediments, water circulation would be reduced, thereby reducing the quality of water contained ire the inland canal system. At present, 114 lots on Petitioner's property have been platted for single family homes. Few homes have been built in the subdivision. However, those that have been built have all utilized septic tanks. Although Petitioner does not propose to develop the fill island until a central sewage facility is available, local regulations permit the installation of septic tanks on those lots around the outside perimeter of the inland canal. Petitioner's application, in fact, indicates that septic tanks will be utilized on the outside perimeter, and that those tanks will be placed in the landward 50 percent of those lots. Studies have indicated that septic tanks, when utilized in coastal areas, should be limited to areas of low residential densities because constituents from septic tanks often reach coastal waters in very short periods of time. The most common constituents found in septic tank leachate are nitrogen and total organic carbon. These are commonly found in higher amounts in canal systems surrounded by intense development. Because of the naturally high water table in coastal areas, septic tank leachate percolating through the soil tends to perch on top of organic materials, and then move laterally toward canal waters. In addition to nitrogen and total organic carbon, phosphorus, bacteria, and viruses also are constituents of septic tank leachate. Although some removal of biological constituents might be expected to occur, those constituents not removed would remain in the soil until washed into the canal waters either by the action of rainfall falling in situ, or through tidal influences. The record in this cause establishes that, should the canal system be opened, and the proposed improvements in that system completed, the system would flush in 5.6 tidal cycles, or about three days. The standard mathematical model applied to the canal system to reach this conclusion is called the "tidal prism model." This model measures the volume of water entering an exiting the system on every tide to determine the number of tidal cycles necessary before the ratio of the original concentration of any pollutant in the system to the final concentration of that pollutant reaches 10 percent. As a result, even though the proposals might improve water quality in the inland canal system, any pollutants entering the system, any pollutants entering the system either through storm water runoff or septic tank leachate would be removed from the inland canal system into waters of the State within a relatively short period of time. During September of 1981, both DER and Respondent performed water quality sampling in and adjacent to the canal system. DER sampled for temperature, surface salinity, surface pH and dissolved oxygen (DO) at eight locations, seven within the canal system and one location in Alligator Harbor. DER sampling stations were numbered one through eight, with station No. 4 representing the location in Alligator Harbor where samples were taken. Sampling began at 7:45 a.m. on September 17 and ended at 9:30 a.m. on that same date. Results of the DER sampling are shown on the table on the following page. Station Time Temp. deg Surface Salinity D.O. Surface pH Celsius Percent 1 7:45 27(S) 27(1m) 26 2.0(S) 2.9(1m) 7.7 2 8:10 27(S) 27(1m) 24 3.4(S) 3.3(1m) 7.6 3 8:25 27(S) 27(2m) 25 3.8(S) 8.8(2m) 7.5 4 8:45 26(S) 26(0.75m) 26 5.4(S) 5.0(0.75m) 7.8 5 9:00 26.8(S) 26.8(0.5m) 26 5.4(S) 5.4(0.5m) 7.8 6 9:14 26.5(S) 26.5(1m) 24 6.0(S) 3.1(1m) 7.8 7 9:23 27(S) 27(1m) 26 5.3(S) 3.4(1m) 7.8 8 9:43 27(S) 27.5(1m) 26.5 (2.3m) 24 4.8(S) 2.0(1m) 4.8(2.3m) 7.6 DER rules require that DO concentrations in all waters shall not average less than five milligrams per liter in a 24-hour period, and are required to never be less than four milligrams per liter. The record in this cause establishes that these water quality samplings were conducted in accordance with accepted methodology, and that the circumstances under which they were taken, including location and time of day, were sufficient to establish their accuracy. In addition to the DO violations presently existing in the inland canal system, further development of the property could also be expected to further aggravate the situation by way of increased storm water runoff, increased contributions of nutrients from septic tanks, detergents, and oils and greases from boat traffic, all of which inhibit the transfer of oxygen. If Petitioner's application is granted, his inland canal system will be connected to Alligator Harbor, an Outstanding Florida Water. Petitioner has asserted that he will provide a public boat ramp in conjunction with the development of his property, and that granting him access to Alligator Harbor by way of the canal system and associated access channel will stimulate single family home construction, thereby increasing the tax base of Franklin County. However, the record in this cause establishes that ample public access to the waters of Alligator Harbor and its environs already exists. Finally, Petitioner's assertion that granting his application for variance would stimulate single family home construction and increase the tax base of Franklin County, insofar as can be determined from this record, is conjectural, and not supported by any credible evidence.
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 is a commercial fishers who is an affected person under the Florida Net Ban, which is set forth in the Florida Constitution, Article X, Section 16. Section 370.0805(5), Florida Statutes, which became effective on July 1, 1995, establishes the Net Buy-Back Program. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. The Legislature appropriated $20 million to the Seafood Workers Economic Assistance Account (the Account) to fund the payments authorized in Section 370.0805, as well as agency expenses in administering the program. Section 370.0805(3)(b) directs Respondent to purchase nets "according to the availability of funds on a first-come, first-served basis determined by the date of receipt of each completed application." By Net Buy-Back Application signed on July 5, 1995, and filed with Respondent on the same day, Petitioner applied to sell nets to the State of Florida. His application form is completely filled out and shows two saltwater-product license numbers, one for an individual and one for a vessel. The application form calls for the applicant to list the "TOTAL NUMBER OF YARDS OF EACH NET TYPE THAT YOU INTEND TO SELL." The form lists five categories of nets: gill (49 meshes or less); gill (50 meshes or more); beach, purse, seine; trawl; and trammel. The former gill net is a shallow-water gill net. The latter gill net is a deepwater gill net. Petitioner listed on his application 800 yards of shallow-water gill nets, 4600 yards of deepwater gill nets, two trawls, and 600 yards of trammel nets. After checking a data base maintained by the Department of Environmental Protection, Respondent found only one of Petitioner's two listed saltwater-product licenses. Respondent thus processed Petitioner's application as though he had only one license. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 8 nets" and set an appointment for him to turn in the nets on September 6, 1995. On September 6, 1995, Petitioner appeared at the appointed site with nets to sell to the State of Florida. He delivered 4800 yards of seine nets, for which he received a voucher for $27,998.40. Prior to paying the voucher, Respondent discovered that the Account might be exhausted before Respondent had paid for all of the nets that fishers might lawfully seek to sell to the State. Respondent thus dishonored Petitioner's voucher, as well as the vouchers held by numerous other fishers, while Respondent considered changes in its administration of the program. The purpose of the Net Buy-Back Program, as provided by Section 370.0805(5)(a), Florida Statutes, was to allow, "[a]ll commercial saltwater products licensees and persons holding a resident commercial fishing license" to apply to Respondent "to receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net fishing." The emphasis was on economic assistance. Section 370.0805(5)(a) authorizes Respondent to make payments only "in nonnegotiable amounts not intended to reflect the actual value of the nets." Section 370.0805(5)(a) assigns payment amounts of $3500 for beach, purse, or seine nets of at least 600 yards in length; $500 for trawls and shallow-water gill nets of at least 600 yards in length; and $1000 for trammel nets of at least 600 yards in length and deepwater gill nets of at least 600 yards in length. Section 370.0805(5)(a) states that, except for trawls, nets of less than 600 yards in length shall be "valued proportionately." Section 370.0805(5)(c) limits the number of nets that a commercial fishers could sell, based on his annual earnings from the sale of eligible saltwater products. The limits range from four nets, for licensees whose annual earnings average from $2500 to $4999 in earnings, to ten nets, for licensees whose annual earnings average more than $30,000. Respondent relied on another data base from the Department of Environmental Protection to determine the average yearly earnings of applicants. The Department of Environmental Protection maintains records of each licensee's trip tickets, which disclose earnings. The only other limit in the statute as to the type and number of nets to be purchased is that, under Section 370.0805(5)(d), "[n]o licensee may be paid for more than two. . . trawls." Respondent reviewed the applications that it received from the initial 951 fishers who filed applications. This was a large majority of the 1104 fishers who would eventually sell their nets to the State under the Net Buy-Back Program. The purpose of the review was to determine whether the funds in the Account would be sufficient to cover the nets that the State was to be purchasing. Respondent found from the applications that seine nets represented only about five percent of the nets that fishers intended to sell to the State. Relying on this information, Respondent calculated the potential encumbrance of $6.5 million on the Account, based on an average payment of $1000 per net. Applications contained few seine nets because commercial fishers initially resisted selling their best nets to the State of Florida. The Net Buy-Back Program provided for payment of only $3500 per seine net, even though many seine nets were worth $10,000. And commercial fishers were optimistic at first that their legal challenges to the constitutional amendment would succeed. Applying liberal eligibility criteria, such as calculating the number of nets that each applicant could sell based on the number of licenses that he held, Respondent raised its estimate of the potential encumbrance to $8.775 million. But in recalculating the potential encumbrance on the Account, Respondent still assumed that the average payment per net would be $1000. Respondent began receiving nets on August 3, 1995. Through the first three weeks of August, Respondent purchased seine nets in roughly the same five-percent mix that it had used in calculating the potential encumbrances on the Account. After this point, however, fishers started turning in much larger numbers of seine nets than they had listed in their applications. During this first phase of the program, Respondent paid fishers for whatever types of nets they presented at their net buy-back appointment. Respondent would pay a fishers entitled to sell eight nets for seine nets if he turned in seine nets, even though he had listed only gill nets on his application. This policy jeopardized the solvency of the Account because the payments to fishers turning in all seine nets were 3.5 times greater than the figures that Respondent had used in calculating the potential encumbrance on the Account. From the fishers's perspective, the program acquired an element of chance, as applicants with earlier appointment times-which did not necessarily correspond with earlier-filed applications-netted fine catches of economic assistance at the expense of their counterparts, upon whom destiny had bestowed later appointment times. By late August, the applicants, less sanguine about their litigation prospects (as the fishers suggest) and more inventive in recasting old gill nets as seine nets (as Respondent suggests), began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Eventually, the cumulative effect of this trend raised the total mix of seines purchased from five percent, during the first three weeks, to sixty percent. After a brief period of trying to stay the course, Respondent decided on September 6, 1995, that it had to take action or else the Account would be exhausted before the State had purchased all of the nets listed on the applications. Respondent immediately suspended further payments on issued vouchers and applied new criteria to persons holding unpaid vouchers, as well as to applicants who had not yet received vouchers. This action stopped payment on all vouchers issued from around August 28 through September 6. At the time that it stopped payment on outstanding vouchers, Respondent had approved the purchase of nets from about 750 fishers. About 450 of these applicants received their money prior to the suspension of payments, leaving about 300 applicants, including Petitioner, holding worthless vouchers. However, a large number of the 450 applicants who were actually paid for their nets prior to September 6 sold a relatively large percentage of gill nets rather than seine nets. As of September 6 (retroactive to August 28), Respondent began the second phase of the Net Buy-Back Program. In this phase, Respondent paid for seine nets, but only up to the greater of the number of seines shown on the application or the number of seines based on past use of seines. Respondent determined the latter figure from the trip tickets, which also contained information as to types of catch, from which Respondent could infer the type of net used. As in the first phase, Respondent continued to insist the fishers turn in seines if they were being paid for seines. The 300 fishers holding dishonored vouchers filed a class action suit. Petitioner's voucher for his first eight nets was covered in this legal action and is not the subject of this case. Petitioner received slightly more than $10,000 on his claim for about $28,000. In the meantime, Respondent discovered that Petitioner in fact held two licenses, as he had represented on his application. By letter dated October 5, 1995, Respondent advised Petitioner that it had reconsidered his application and determined that he had the right to sell 16 nets, not eight nets, but none could be a seine net. Respondent issued Petitioner a new voucher for these additional eight nets. This voucher is in the amount of $7996.80 for 4800 yards of deepwater gill net. On October 13, 1995, Petitioner turned in eight nets and received his money. Petitioner's application lists no seine nets. His application, as noted above, lists one and one-third shallow- water gill nets (i.e., 800 yards), eight deepwater gill nets, two trawls, and one trammel net. Petitioner claimed that he turned in seine nets. If turned in during the first or second phase of the program, Respondent would have treated these nets as seine nets. But it is Petitioner's unique fortune to have been intimately involved with all three phases of the Net Buy-Back Program. Evidently dissatisfied with the effects of the restrictions introduced by the second phase of the program, Respondent added a third phase by promulgating an emergency rule defining "seine nets," effective October 2, 1995. This third phase, which did not change Respondent's policy of paying for the greater number of seines as shown on the application or the trip tickets, restricted the kinds of nets that fishers could turn in as seine nets. Rule 38BER95-1 provides that, for the purpose of "the implementation of the Net Buy-Back Program" described in Section 370.0805(5): "Gill net" means a wall of netting suspended vertically in the water, with floats across the upper margin and weights along the bottom margin which captures fish by entangling them in the meshes, usually by the gills. Any net offered for the net buy- back program that consists of at least fifty- one percent (51 percent) gill net, shall be considered a gill net. "Seine" means a small-meshed net suspended vertically in the water, with floats along the top margin and weights along the bottom margin, which encloses and concentrates fish, and does not entangle them in the meshes. No net offered for the net buy-back program shall be considered a seine if the wings are composed of entangling mesh. * * * THIS RULE SHALL TAKE EFFECT IMMEDIATELY UPON BEING FILED WITH THE DEPARTMENT OF STATE. Effective Date: October 2, 1995 Under the emergency rule, Respondent's nets were not seines, but were gill nets because they were at least 51 percent, by area, gill net. At the time of the final hearing, Respondent estimates that the Account balance is about $300,000 with about 160 contested claims remaining to be resolved.
Recommendation It is RECOMMENDED that the Department of Labor and Employment Security enter a final order dismissing the petition for additional payment from the Account. ENTERED on October 3rd, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 3rd, 1996. COPIES FURNISHED: Secretary Douglas L. Jamerson Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 John Wayde Campbell 1103 67th Street Northwest Bradenton, Florida 34209 Louise T. Sadler Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
