20-001360PL Department Of Agriculture And Consumer Services vs. Robert K. Lee Status: Closed Recommended Order on Friday, November 20, 2020.

Summary: The Petitioner proved the allegations in its Second Amended Administrative Complaint by clear and convincing evidence.

S TATEMENT OF T HE I SSUE S

The issues are whether Respondent committed the violations alleged in

Petitioner’s Second Amended Administ rative Complaint; and, if so, what

penalties should be imposed.

P RELIMINARY S TATEMENT

The Department of Agriculture and Consumer Services (“the

Department”) issued an Amended Administrative Complaint on

November 14, 2019, alleging that Robert K. Lee (“Mr . Lee”) violated the

following provisions of the Florida Administrative Code on approximately

August 23, 2019 1 : (1) r ule 5L - 1.007(2) by failing to affix a harvester tag to

containers of shellstock before leaving the harvesting location; (2) rule 5L -

1.008(7 ) by failing to timely deliver oysters to a certified processing facility; and (3) rules 5L - 1.008(5)(a) and 5L - 3.007(8)(c) by harvesting and replanting

wild shellfish stock on submerged lands leased from the Board of Trustees of the Internal Improvement Tr ust Fund. The Department’s Amended

Administrative Complaint also alleged that Mr. Lee failed to sort and wash

shellfish as required by Aquaculture Best Management Practices when he

attempted to transport oysters to a private residence for those purposes

ra ther than sorting and washing the oysters over his lease or at a certified

processing facility.

Mr. Lee requested a formal administrative hearing, and the Department

referred this matter to DOAH on March 16, 2020. The undersigned issued a

notice on March 30, 2020, scheduling the final hearing for June 24, 2020. I n

order to accommodate Mr. Lee’s circumstances, the final hearing was

1 Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida

Statutes. In disciplinary proceedings such as the instant case, a tribunal applies the statutes

and rules that were in effect during the conduct at issue. Childers v. Dep’t of Envtl. Prot . , 696

So. 2d 962, 964 (F la. 1st DCA 1997).

scheduled outside the 30 to 70 day window during which final hearings are

normally scheduled.

After convening a telephonic sta tus conference on June 17, 2020, the

undersigned issued an Order on June 19, 2020, continuing the final hearing

to July 20, 2020, because Mr. Lee needed more time to prepare for the final

hearing.

On July 15, 2020, the Department filed a Motion to Amend seeking to add

a fifth count to its Amended Administrative Complaint. Specifically, the

Department wished to further allege that Mr. Lee was adjudicated guilty on

June 15, 2017, of the criminal offenses of possessing untagged oysters in

violation of sectio n 597.0041(4), Florida Statutes, and rule 5L - 3.007(8)(c)9.

The Department also requested that the final hearing scheduled for July 20,

2020, be continued.

Via an Order issued on July 17, 2020, the undersigned granted the

Department’s Motion to Amend and specified that the instant case would

henceforth proceed based on the Department’s Second Amended

Administrative Complaint. The aforementioned Order also canceled the final hearing and gave the parties until July 22, 2020, to provide mutual dates of

avail ability for a rescheduled final hearing.

On July 22, 2020, the undersigned issued an Order rescheduling the final

hearing for September 18, 2020.

The final hearing proceeded as scheduled. The Department presented

testimony from Charles Culpepper, III, Mr . Lee, and Officer David Travis of

the Florida Fish and Wildlife Conservation Commission. The Department

introduced Exhibits A through G 2 into evidence.

Mr. Lee testified on his own behalf and did not introduce any exhibits into

evidence.

The Transcrip t from the final hearing was filed on October 6, 2020. B oth

parties filed proposed recommended orders that were considering in the

preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the evidence adduced at the final hearing, the record as a whole,

the stipulated facts, and matters subject to official recognition, the following

Findings of Fact are made:

The Parties and the Events of August 2 4 , 2019

1. The Department is the state agency charged with encouraging the

development of aquaculture 3 in Florida. § 597.003(1), Fla. Stat. “When any

qualified person desires to lease a part of the bottom, water column, or bed of

any [state waters] for the purpose of growing oysters or clams . . . , he or she

shall present to [the Department] a written app lication . . . .” § 597.010(1),

Fla. Stat.

2 . Mr. Lee and his father, Robert J. Lee, jointly hold Aquaculture

Certificate of Registration No. AQ1529074. On January 5, 2016, they applied to the Department for a state owned submerged land aquaculture le ase in the

2 Petitioner’s Exhibit G is a flash drive containing video footage of Offic er Travis ’ s traffic stop

and subsequent arrest of Mr. Lee.

3 Section 597.0015(1), defines “aquaculture” as “the cultivation of aquatic organisms.”

Section 59 7.0015(3), defines “aquaculture products” as “aquatic organisms and any product

derived from aquatic organisms that are owned and propagated, grown, or produced under

controlled conditions.”

vicinity of Alligator Harbor in Franklin County, Florida. The lease was to be

used for the commercial cultivation of oysters and clams.

3 . The Department issued a ten - year lease, Sovereignty Submerged Land

Aquaculture Lease No. 19 - AQ - 1465, to Mr. Lee and his father on February 3,

2016. One provision therein required the lessee to be bound by the current

and future versions of the Florida Statutes and the Florida Administrative

Code. Another provision stated that a violation of c hapter 597 and/o r c hapter

5L - 1 “may be cause for this lease to be terminated without further notice to

the lessee and shall result in the forfeiture to lessor of the works,

improvements, and shellfish in and upon the leased premises.”

4. On June 15, 2017, Mr. Lee pled no lo contendere to several charges filed

in Franklin County, Florida. Two of the aforementioned charges pertained to

the criminal offenses of possessing untagged and undersized oysters, and

Mr. Lee was adjudicated guilty of all charges.

5. At approximat ely 3:00 a.m., on August 24, 2019, Officer David Travis of

the Florida Fish and Wildlife Conservation Commission was on patrol in

Carrabelle, Florida, and traveling west on US - 98, 25 miles from Alligator

Harbor. He observed a Chevrolet Tahoe pulling a boat 4 that had no trailer

lights. A Ford Fusion was closely following the Tahoe. Officer Travis then

made a U - turn in order to initiate a traffic stop based on the lack of trailer

lights and the failure of both vehicles to use their blinkers prior to making

tw o turns. Mr. Lee was driving the Fusion , and a friend of Mr. Lee’s was

driving the Tahoe.

6. Upon inspecting the boat, Officer Travis saw four untagged baskets, one

blue and three orange. The blue basket was completely full with at least 40

4 The boat was registered to Mr. Lee’s father.

pounds of uncul led 5 oysters. The orange baskets were approximately the

same size as the blue basket, and two of the orange baskets were at least

75 percent full with unculled oysters. The third orange basket contained 15

to 20 culled oysters.

7. The boat and the conte nts therein were wet. Officer Travis found

multiple pairs of wet gloves and one pair of wet socks inside a yellow oyster

sack at the boat’s stern. At the bow, he found several casting nets that were soaking wet and containing fresh grass, mu d, sand, and li ve crustaceans.

Officer Travis also found a mullet in a cooler that appeared to have been recently caught.

8. During an inspection of the Tahoe, Officer Travis found a large, white

cooler with a large quantity of culled oysters in a bed of ice. According to

Mr. Lee, those oysters were harvested from his Alligator Harbor lease on August 22, 2019, and were intended for personal consumption.

9. Mr. Lee told Officer Travis during the traffic stop that he had taken the

oysters described in paragraph 6 from his lease in Alligator Harbor on August 23, 2019, between 10:00 a . m . and 6:00 p . m. Mr. Lee further stated to

Officer Travis that he had transported the oysters at issue to his girlfriend’s

house in Carrabelle where he had begun to cull some of them. Accord ing to

Mr. Lee, he and his girlfriend had gotten into an argument, and Mr. Lee decided to take the oysters to his father’s home in order to finish culling

them. Mr. Lee and his friend were supposedly driving to Robert J. Lee’s home

when Officer Travis pull ed them over.

10. Officer Travis arrested Mr. Lee and his friend.

Ultimate Findings

11. Count I of the Department’s Second Amended Administrative

Complaint alleges that Mr. Lee violated rule 5L - 1.007(2) on approximately

5 commonly grow together in clumps. “Culling” refers to the process by which Wild oysters

wild oysters are separated from each other. The term can also encompass the cleaning,

grading, and sorting of oysters.

August 23, 2019, by failin g to label containers holding oysters. Neither

Officer Travis’s arrest report nor his testimony mentioned any tags on the

baskets in the boat or the cooler in the Tahoe. Also, no tags are visible during

the footage from Officer Travis’s body camera. While Mr. Lee testified that he

had a bulk tag that applied to all of the containers at issue, the undersigned

does not find Mr. Lee’s testimony to be credible. Accordingly, the Department

proved Count I by clear and convincing evidence.

12. Count II of the De partment’s Second Amended Administrative

Complaint alleges that Mr. Lee failed to timely deliver oysters to a certified

processing facility on approximately August 23, 2019, as required by rule 5L -

1.008(7). The aforementioned rule requires that “shellfish shall be harvested

between sunrise and sunset as established by the U.S. Weather Service.” As

noted above, Officer Travis observed that the contents inside the boat were

wet and fresh, and that evidence convincingly undermines Mr. Lee’s

assertion that the oysters at issue were harvested on August 23, 2019 , prior

to 6:00 p . m. While Mr. Lee asserted that the oysters in question were

intended for personal consumption rather than for sale, that assertion is

undermined by the large number of oysters Officer Trav is observed in the

boat during the August 24, 2019, traffic stop. Therefore, the Department

proved Count II by clear and convincing evidence.

13. Count III of the Department’s Second Amended Administrative

Complaint alleges that Mr. Lee violated rule 5L - 3. 004 on approximately

August 23, 2019, by attempting to transport oysters to a private residence for sorting and washing rather than performing those activities over his lease.

As noted above, Officer Travis observed a large quantity of unculled oysters

dur ing the traffic stop. Those oysters had not been sorted and washed over

Mr. Lee’s lease. Also, the allegation in Count III is consistent with what

Mr. Lee told Officer Travis during the traffic stop. Accordingly, the

Department proved Count III by clear a nd convincing evidence.

14. Count IV of the Department’s Second Amended Administrative

Complaint alleges that Mr. Lee violated rules 5L - 1.008(5)(a) and 5L -

3.007(8)(c) in December of 2018 by harvesting and replanting wild shellfish

stock on the submerged la nds of his lease. However, the Department

presented no clear and convincing evidence that Mr. Lee violated rules 5L -

1.008(5)(a) and 5L - 3.007(8)(c).

15. Count V of the Department’s Second Amended Administrative

Complaint alleges that Mr. Lee was convicted on June 15, 2017, of possessing

untagged oysters in violation of section 597.0041(4). As noted above, Mr. Lee

was adjudicated guilty on June 15, 2017, of possessing untagged and

undersized oysters. The Department thus proved Count V by clear and

convincin g evidence.

C ONCLUSIONS OF L AW

16. DOAH has jurisdiction over the subject matter and the parties to this

proceeding in accord ance with sections 120.569 and 120.57(1), Florida

Statutes.

17. The Department is required to prove the allegations in its Second

Amended Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

18 . Clear and convincing evidence “requires more proof than a

‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano , 69 6 So. 2d 744, 753 (Fla. 1997). The court

in Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), stated that:

[ C]lear and convin cing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issu e. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

The First District Court of Appeal has followed the Slomo witz test and added

the interpretive comment that “[a]lthough this standard of proof may be met

where the evidence is in conflict . . . it seems to preclude evidence that is

ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986,

988 (F la. 1st DCA 1991).

19. The Department alleges in Count I of the Second Amended

Administrative Complaint that Mr. Lee violated rule 5L - 1.007(2) on

approximately August 23, 2019, by failing to label each container of oysters.

The aforementioned rule requires , in pertinent part, that “[e]ach commercial

harvester or each shellfish processor shall affix a durable, waterproof tag of

minimal size – 1 5/8 by 5 1/4 inches – to each container of shellstock . . .

regardless of capacity of container . . . .”

20. As fo r Count II of the Second Amended Administrative Complaint, the

Department alleges that Mr. Lee failed to timely deliver oysters to a certified processing facility on approximately August 23, 2019, as required by rule 5L -

1.008(7). The aforementioned rule re quires that “shellfish shall be harvested

between sunrise and sunset as established by the U.S. Weather Service. All

shellfish shall be delivered, same day of harvest, by the harvester directly to

a certified shellfish processing facility.”

21. In Count III of the Second Amended Administrative Complaint, the

Department alleges that Mr. Lee violated rule 5L - 3.004 on approximately

August 23, 2019, by attempting to transport oysters to a private residence for sorting and washing rather than performing those activities over his lease.

Rule 5L - 3.004 incorporates the November 2016 version of the Aquaculture

Best Management Practices Manual (“the Manual”) by reference. The

pertinent portion of the Manual provides that “sorting or washing of shellfish

may be perfo rmed by the aquaculturist over his lease (approved waters) or at

a certified shellfish processing facility.”

22. The Department alleges in Count IV that Mr. Lee violated rules 5L -

1.008(5)(a) and 5L - 3.007(8)(c) in December of 2018 by harvesting and

replan ting wild shellfish stock on the submerged lands of his lease. The

former rule mandates that “[a]qualcultured shellfish are the only shellfish

allowed to be replanted/resubmerged.” The latter rule prohibits “commingling wild and aquaculture products.”

23 . Count V of the Second Amended Administrative Complaint alleges

that Mr. Lee was convicted on June 15, 2017, of possessing untagged and

undersized oysters in violation of section 597.0041(4). The aforementioned

statute provides that “[a]ny person who viol ates any provision of s. 597.010 or

s. 597.020, or any rule adopted under those sections, commits a misdemeanor

of the second degree . . .” Rule 5L - 3.007(8)(c)9 . subjects a certificate holder to

discipline for failing “to properly tag aquacultured shellfis h pursuant to Rule

Chapter 5L - 1, F.A.C.”

24. As noted above, the Department presented clear and convincing

evidence that Mr. Lee committed the violations alleged in Counts I through

III and V in the Second Amended Administrative Complaint. However, the

D epartment presented no clear and convincing evidence that Mr. Lee violated

rules 5L - 1.008(5)(a) and 5L - 3.007(8)(c) as alleged in Count IV of the Second

Amended Administrative Complaint.

25. With regard to the penalty or penalties that should be imposed on

Mr. Lee, section 597.0041(2)(a) states that:

[a] person who violates this chapter or any rule

adopted under this chapter is subject to a suspension or revocation of his or her certificate of

registration or license under this chapter. [The

Department] m ay, in lieu of or in addition to the suspension or revocation, impose on the violator an administrative fine in the Class I category

pursuant to s. 570.971 for each violation, for each

day the violation exists.

26. Section 570.971(1)(a), Florida Statutes, provides that the Department

may impose a fine not to exceed $1,000 for each violation in the Class I

category. Also, rule 5L - 3.007 implements section 597.0041 and provides that

“[a]ny person who violates any provision of Chapter 597, F.S., or Rule

Chapte r 5L - 3, F.A.C. . . . is subject to a suspension or revocation of his or her

certificate of registration.”

27. A provision in Mr. Lee’s lease states that a violation of chapter 597

and/or c hapter 5L - 1 “may be cause for this lease to be terminated without

f urther notice to the lessee and shall result in the forfeiture to lessor of the

works, improvements, and shellfish in and upon the leased premises.”

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department impose a cumulative fine of $4,000.00

($1,000.00 each) for Counts I through III and V. The undersigned also recommends that Aquaculture Certificate of Registration No. AQ1529074,

jointly held by Mr. Lee and his father, be revoked. Finally, the u ndersigned

recommends that Sovereignty Submerged Land Aquaculture Lease No. 19 -

AQ - 1465 be terminated with Mr. Lee forfeiting all works, improvements, and

shellfish in and upon the lease premises.

6

6 Mr. Lee argued that his father’s interest in the Certificate of Registration and the lease at

Alligator Harbor should not be extinguished because his father had no involvement with

Mr. Lee’s violations. However, Mr. Lee offered no authority to support his argument, and the

undersigned’s independent research did no t find anything to support Mr. Lee’s position.

D ONE A ND E NTERED this 20 th day of November, 2020 , in Tall ahassee,

Leon County, Florida.

G. W. C HISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

File d with the Clerk of the

Division of Administrative Hearings

this 20 th day of November, 2020 .

C OPIES F URNISHED :

Robert Kevin Lee

Post Office Box 28

Carrabelle, Florida 32322

Darby G. Shaw, Esquire

Department of Agriculture and Consumer Services

407 Sou th Calhoun Street , Suite 520

Tallahassee, Florida 32399

(eServed)

Allan J. Charles, Esquire

Department of Agriculture and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399

(eServed)

Stephen M. James, Esquire Department of Agriculture and Consumer Services

407 South Calhoun Street , Suite 531

Tallahassee, Florida 32399

(eServed)

Steven Hall, General Counsel

Department of Agriculture and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Honorable Nicole “Nikki” Fried

Commissioner of Agriculture

Department of Agriculture and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.