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The Florida Senate

2015 Florida Statutes

Title XXVIII NATURAL RESOURCES; CONSERVATION, RECLAMATION, AND USE
Chapter 379 FISH AND WILDLIFE CONSERVATION Entire Chapter
SECTION 407
Administration; rules, publications, records; penalties; injunctions.
F.S. 379.407
379.407 Administration; rules, publications, records; penalties; injunctions.—
(1) BASE PENALTIES.—Unless otherwise provided by law, any person, firm, or corporation who violates any provision of this chapter, or any rule of the Fish and Wildlife Conservation Commission relating to the conservation of marine resources, shall be punished:
(a) Upon a first conviction, by imprisonment for a period of not more than 60 days or by a fine of not less than $100 nor more than $500, or by both such fine and imprisonment.
(b) On a second or subsequent conviction within 12 months, by imprisonment for not more than 6 months or by a fine of not less than $250 nor more than $1,000, or by both such fine and imprisonment.

Upon final disposition of any alleged offense for which a citation for any violation of this chapter or the rules of the commission has been issued, the court shall, within 10 days, certify the disposition to the commission.

(2) MAJOR VIOLATIONS.—In addition to the penalties provided in paragraphs (1)(a) and (b), the court shall assess additional penalties against any commercial harvester convicted of major violations as follows:
(a) For a violation involving more than 100 illegal blue crabs, spiny lobster, or stone crabs, an additional penalty of $10 for each illegal blue crab, spiny lobster, stone crab, or part thereof.
(b)1. For a violation involving the taking or harvesting of shrimp from a nursery or other prohibited area, or any two violations within a 12-month period involving shrimping gear, minimum size (count), or season, an additional penalty of $10 for each pound of illegal shrimp or part thereof.
2. For violations involving the taking of food shrimp in certain closed areas:
a. Any person with a saltwater products license issued by the commission who is convicted of taking food shrimp in Santa Rosa Sound in violation of commission rule designating a closed area shall have that license and the saltwater products license of the boat involved in the violation revoked and shall be ineligible to make application for such a license for a period of 2 years from the date of such conviction. If a person who does not have a saltwater products license is convicted hereunder, that person and the boat involved in the violation shall not be eligible for such a license for 5 years.
b. A third or subsequent violation by any person of the designated closure to food shrimping in Santa Rosa Sound within a 3-year period is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
c. A second or any subsequent violation by any person for taking food shrimp in a food shrimp production closed area in a portion of Monroe County designated by the commission is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
d. A third or any subsequent violation by the owner or master of any vessel engaged in food shrimp production in the Tortugas Shrimp Beds closed area designated by the commission within a 3-year period is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
e. This subparagraph does not apply to persons shrimping for live bait shrimp in the designated closed area when such persons are shrimping with a live bait shrimping license issued by the commission.
3. The owner or master of any vessel not equipped with live shrimp bait tanks dragging shrimp nets in the Tortugas Shrimp Beds without a live bait shrimping license for this area is subject to the base penalties in subsection (1) for a first or second violation. A third or subsequent violation by any person under this subparagraph within a 3-year period is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(c) For a violation involving the taking or harvesting of oysters from nonapproved areas or the taking or possession of unculled oysters, an additional penalty of $10 for each bushel of illegal oysters.
(d) For a violation involving the taking or harvesting of clams from nonapproved areas, an additional penalty of $100 for each 500 count bag of illegal clams.
(e) For a violation involving the taking, harvesting, or possession of any of the following species, which are endangered, threatened, or of special concern:
1. Shortnose sturgeon (Acipenser brevirostrum);
2. Atlantic sturgeon (Acipenser oxyrhynchus);
3. Common snook (Centropomus undecimalis);
4. Atlantic loggerhead turtle (Caretta caretta caretta);
5. Atlantic green turtle (Chelonia mydas mydas);
6. Leatherback turtle (Dermochelys coriacea);
7. Atlantic hawksbill turtle (Eretmochelys imbricata imbracata);
8. Atlantic ridley turtle (Lepidochelys kempi); or
9. West Indian manatee (Trichechus manatus latirostris),

an additional penalty of $100 for each unit of marine life or part thereof.

(f) For a second or subsequent conviction within 24 months for any violation of the same law or rule involving the taking or harvesting of more than 100 pounds of any finfish, an additional penalty of $5 for each pound of illegal finfish.
(g) For any violation involving the taking, harvesting, or possession of more than 1,000 pounds of any illegal finfish, an additional penalty equivalent to the wholesale value of the illegal finfish.
(h) Permits issued to any commercial harvester by the commission to take or harvest saltwater products, or any license issued pursuant to s. 379.361 or s. 379.362 may be suspended or revoked by the commission, pursuant to the provisions and procedures of s. 120.60, for any major violation prescribed in this subsection:
1. Upon a first conviction, for up to 30 calendar days.
2. Upon a second conviction which occurs within 12 months after a prior violation, for up to 90 calendar days.
3. Upon a third conviction which occurs within 24 months after a prior conviction, for up to 180 calendar days.
4. Upon a fourth conviction which occurs within 36 months after a prior conviction, for a period of 6 months to 3 years.
(i) Upon the arrest and conviction for a major violation involving stone crabs, the licenseholder must show just cause why his or her license should not be suspended or revoked. For the purposes of this paragraph, a “major violation” means a major violation as prescribed for illegal stone crabs; any single violation involving possession of more than 25 stone crabs during the closed season or possession of 25 or more whole-bodied or egg-bearing stone crabs; any violation for trap molestation, trap robbing, or pulling traps at night; or any combination of violations in any 3-consecutive-year period wherein more than 75 illegal stone crabs in the aggregate are involved.
(j) Upon the arrest and conviction for a major violation involving spiny lobster, the licenseholder must show just cause why his or her license should not be suspended or revoked. For the purposes of this paragraph, a “major violation” means a major violation as prescribed for illegal spiny lobster; any single violation involving possession of more than 25 spiny lobster during the closed season or possession of more than 25 wrung spiny lobster tails or more than 25 egg-bearing or stripped spiny lobster; any violation for trap molestation, trap robbing, or pulling traps at night; or any combination of violations in any 3-consecutive-year period wherein more than 75 illegal spiny lobster in the aggregate are involved.
(k) Upon the arrest and conviction for a major violation involving blue crabs, the licenseholder shall show just cause why his or her saltwater products license should not be suspended or revoked. This paragraph shall not apply to an individual fishing with no more than five traps. For the purposes of this paragraph, a “major violation” means a major violation as prescribed for illegal blue crabs, any single violation wherein 50 or more illegal blue crabs are involved; any violation for trap molestation, trap robbing, or pulling traps at night; or any combination of violations in any 3-consecutive-year period wherein more than 100 illegal blue crabs in the aggregate are involved.
(l) Upon the conviction for a major violation involving finfish, the licenseholder must show just cause why his or her saltwater products license should not be suspended or revoked. For the purposes of this paragraph, a major violation is prescribed for the taking and harvesting of illegal finfish, any single violation involving the possession of more than 100 pounds of illegal finfish, or any combination of violations in any 3-consecutive-year period wherein more than 200 pounds of illegal finfish in the aggregate are involved.
(m) For a violation involving the taking or harvesting of any marine life species, as those species are defined by rule of the commission, the harvest of which is prohibited, or the taking or harvesting of such a species out of season, or with an illegal gear or chemical, or any violation involving the possession of 25 or more individual specimens of marine life species, or any combination of violations in any 3-year period involving more than 70 such specimens in the aggregate, the suspension or revocation of the licenseholder’s marine life endorsement as provided in paragraph (h).

The penalty provisions of this subsection apply to commercial harvesters and wholesale and retail dealers as defined in s. 379.362. Any other person who commits a major violation under this subsection commits a Level Three violation under s. 379.401. Notwithstanding the provisions of s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any major violation prescribed in this subsection. The proceeds from the penalties assessed pursuant to this subsection shall be deposited into the Marine Resources Conservation Trust Fund to be used for marine fisheries research.

(3) PENALTIES FOR USE OF ILLEGAL NETS.—
(a) It is a major violation pursuant to this section, punishable as provided in paragraph (b) for any person, firm, or corporation to be simultaneously in possession of any species of mullet in excess of the recreational daily bag limit and any gill or other entangling net as defined in s. 16(c), Art. X of the State Constitution. Simultaneous possession under this provision shall include possession of mullet and gill or other entangling nets on separate vessels or vehicles where such vessels or vehicles are operated in coordination with one another including vessels towed behind a main vessel. This subsection does not prohibit a resident of this state from transporting on land, from Alabama to this state, a commercial quantity of mullet together with a gill net if:
1. The person possesses a valid commercial fishing license that is issued by the State of Alabama and that allows the person to use a gill net to legally harvest mullet in commercial quantities from Alabama waters.
2. The person possesses a trip ticket issued in Alabama and filled out to match the quantity of mullet being transported, and the person is able to present such trip ticket immediately upon entering this state.
3. The mullet are to be sold to a wholesale saltwater products dealer located in Escambia County or Santa Rosa County, which dealer also possesses a valid seafood dealer’s license issued by the State of Alabama. The dealer’s name must be clearly indicated on the trip ticket.
4. The mullet being transported are totally removed from any net also being transported.
(b)1. A flagrant violation of any rule or statute which implements s. 16(b), Art. X of the State Constitution shall be considered a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. For purposes of this paragraph, a flagrant violation shall be the illegal possession or use of a monofilament net or a net with a mesh area larger than 2,000 square feet. A violation means any judicial disposition other than acquittal or dismissal.
2. In addition to being subject to the other penalties provided in this chapter, any violation of s. 16(b), Art. X of the State Constitution, or any statute or rule of the commission which implements the gear prohibitions and restrictions specified therein shall be considered a major violation; and any person, firm, or corporation receiving any judicial disposition other than acquittal or dismissal of such violation shall be subject to the following additional penalties:
a. For a first major violation within a 7-year period, a civil penalty of $2,500 and suspension of all saltwater products license privileges for 90 calendar days following final disposition shall be imposed.
b. For a second major violation under this subparagraph charged within 7 years of a previous judicial disposition, which results in a second judicial disposition other than acquittal or dismissal, a civil penalty of $5,000 and suspension of all saltwater products license privileges for 12 months shall be imposed.
c. For a third or subsequent major violation under this subparagraph, charged within a 7-year period, resulting in a third or subsequent judicial disposition other than acquittal or dismissal, a civil penalty of $5,000, lifetime revocation of the saltwater products license, and forfeiture of all gear and equipment used in the violation shall be imposed.
d. For a first flagrant violation under this subparagraph, a civil penalty of $5,000 and a suspension of all saltwater license privileges for 12 months shall be imposed. For a second or subsequent flagrant violation under this subparagraph, a civil penalty of $5,000, a lifetime revocation of the saltwater products license, and the forfeiture of all gear and equipment used in the violation shall be imposed.

A court may suspend, defer, or withhold adjudication of guilt or imposition of sentence only for any first violation of s. 16, Art. X of the State Constitution, or any rule or statute implementing its restrictions, determined by a court only after consideration of competent evidence of mitigating circumstances to be a nonflagrant or minor violation of those restrictions upon the use of nets. Any violation of s. 16, Art. X of the State Constitution, or any rule or statute implementing its restrictions, occurring within a 7-year period commencing upon the conclusion of any judicial proceeding resulting in any outcome other than acquittal shall be punished as a second, third, or subsequent violation accordingly.

(c) During the period of suspension or revocation of saltwater license privileges under this subsection, the licensee shall not participate in the taking or harvesting, or attempt the taking or harvesting, of saltwater products from any vessel within the waters of the state; be aboard any vessel on which a commercial quantity of saltwater products is possessed through an activity requiring a license pursuant to this section; or engage in any other activity requiring a license, permit, or certificate issued pursuant to this chapter. Any person who is convicted of violating this paragraph:
1. Upon a first or second conviction, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
2. Upon a third or subsequent conviction, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(d) Upon reinstatement of saltwater license privileges suspended pursuant to a violation of this subsection, a licensee owning or operating a vessel containing or otherwise transporting in or on Florida waters any gill net or other entangling net, or containing or otherwise transporting in nearshore and inshore Florida waters any net containing more than 500 square feet of mesh area shall remain restricted for a period of 12 months following reinstatement, to operating under the following conditions:
1. Vessels subject to this reinstatement period shall be restricted to the corridors established by commission rule.
2. A violation of the reinstatement period provisions shall be punishable pursuant to paragraphs (1)(a) and (b).
(4) ADDITIONAL PENALTIES FOR MAJOR VIOLATIONS INVOLVING CERTAIN FINFISH.—
(a) It is a major violation under this section for any person to be in possession of any species of trout, snook, or redfish which is three fish in excess of the recreational or commercial daily bag limit.
(b) A commercial harvester who violates this subsection shall be punished as provided under paragraph (3)(b). Any other person who violates this subsection commits a Level Three violation under s. 379.401.
(5) PENALTIES FOR POSSESSION OF SPINY LOBSTER; CLOSED SEASON AND WRUNG TAILS.—It is a major violation under this section for any person, firm, or corporation to be in possession of spiny lobster during the closed season or, while on the water, to be in possession of spiny lobster tails that have been wrung or separated from the body, unless such possession is allowed by commission rule. Any person, firm, or corporation that violates this subsection is subject to penalties as follows:
(a) A first violation is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. If the violation involves 25 or more lobster, the violation is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second violation is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and such person is subject to a suspension of all license privileges under this chapter for a period not to exceed 90 days.
(c) A third violation is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 6 months, and such person may be assessed a civil penalty of up to $2,500 and is subject to a suspension of all license privileges under this chapter for a period not to exceed 6 months.
(d) A third violation within 1 year after a second violation is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 1 year, and such person shall be assessed a civil penalty of $5,000 and all license privileges under this chapter shall be permanently revoked.
(e) A fourth or subsequent violation is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 1 year, and such person shall be assessed a civil penalty of $5,000 and all license privileges under this chapter shall be permanently revoked.
(6) SALTWATER PRODUCTS; UNLICENSED SELLERS; ILLEGALLY HARVESTED PRODUCTS.—In addition to other penalties authorized in this chapter, any violation of s. 379.361 or s. 379.362, or rules of the commission implementing s. 379.361 or s. 379.362, involving the purchase of saltwater products by a commercial wholesale dealer, retail dealer, or restaurant facility for public consumption from an unlicensed person, firm, or corporation, or the purchase or sale of any saltwater product known to be taken in violation of s. 16, Art. X of the State Constitution, or rule or statute implementing the provisions thereof, by a commercial wholesale dealer, retail dealer, or restaurant facility, for public consumption, is a major violation, and the commission may assess the following penalties:
(a) For a first violation, the commission may assess a civil penalty of up to $2,500 and may suspend the wholesale or retail dealer’s license privileges for up to 90 calendar days.
(b) For a second violation occurring within 12 months of a prior violation, the commission may assess a civil penalty of up to $5,000 and may suspend the wholesale or retail dealer’s license privileges for up to 180 calendar days.
(c) For a third or subsequent violation occurring within a 24-month period, the commission shall assess a civil penalty of $5,000 and shall suspend the wholesale or retail dealer’s license privileges for up to 24 months.

Any proceeds from the civil penalties assessed pursuant to this subsection shall be deposited into the Marine Resources Conservation Trust Fund and shall be used as follows: 40 percent for administration and processing purposes and 60 percent for law enforcement purposes.

(7) PENALTIES FOR UNLICENSED SALE, PURCHASE, OR HARVEST.—It is a major violation and punishable as provided in this subsection for any unlicensed person, firm, or corporation who is required to be licensed under this chapter as a commercial harvester or a wholesale or retail dealer to sell or purchase any saltwater product or to harvest or attempt to harvest any saltwater product with intent to sell the saltwater product.
(a) Any person, firm, or corporation who sells or purchases any saltwater product without having purchased the licenses required by this chapter for such sale is subject to penalties as follows:
1. A first violation is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. A second violation is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and such person may also be assessed a civil penalty of up to $2,500 and is subject to a suspension of all license privileges under this chapter for a period not exceeding 90 days.
3. A third violation is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 6 months, and such person may also be assessed a civil penalty of up to $5,000 and is subject to a suspension of all license privileges under this chapter for a period not exceeding 6 months.
4. A third violation within 1 year after a second violation is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 1 year, and such person shall be assessed a civil penalty of $5,000 and all license privileges under this chapter shall be permanently revoked.
5. A fourth or subsequent violation is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 1 year, and such person shall be assessed a civil penalty of $5,000 and all license privileges under this chapter shall be permanently revoked.
(b) Any person whose license privileges under this chapter have been permanently revoked and who thereafter sells or purchases or who attempts to sell or purchase any saltwater product commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 1 year, and such person shall also be assessed a civil penalty of $5,000. All property involved in such offense shall be forfeited pursuant to s. 379.337.
(c) Any commercial harvester or wholesale or retail dealer whose license privileges under this chapter are under suspension and who during such period of suspension sells or purchases or attempts to sell or purchase any saltwater product shall be assessed the following penalties:
1. A first violation, or a second violation occurring more than 12 months after a first violation, is a first degree misdemeanor, punishable as provided in ss. 775.082 and 775.083, and such commercial harvester or wholesale or retail dealer may be assessed a civil penalty of up to $2,500 and an additional suspension of all license privileges under this chapter for a period not exceeding 90 days.
2. A second violation occurring within 12 months of a first violation is a third degree felony, punishable as provided in ss. 775.082 and 775.083, with a mandatory minimum term of imprisonment of 1 year, and such commercial harvester or wholesale or retail dealer may be assessed a civil penalty of up to $5,000 and an additional suspension of all license privileges under this chapter for a period not exceeding 180 days. All property involved in such offense shall be forfeited pursuant to s. 379.337.
3. A third violation within 24 months of the second violation or subsequent violation is a third degree felony, punishable as provided in ss. 775.082 and 775.083, with a mandatory minimum term of imprisonment of 1 year, and such commercial harvester or wholesale or retail dealer shall be assessed a mandatory civil penalty of up to $5,000 and an additional suspension of all license privileges under this chapter for a period not exceeding 24 months. All property involved in such offense shall be forfeited pursuant to s. 379.337.
(d) Any commercial harvester who harvests or attempts to harvest any saltwater product with intent to sell the saltwater product without having purchased a saltwater products license with the requisite endorsements is subject to penalties as follows:
1. A first violation is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. A second violation is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and such commercial harvester may also be assessed a civil penalty of up to $2,500 and is subject to a suspension of all license privileges under this chapter for a period not exceeding 90 days.
3. A third violation is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 6 months, and such commercial harvester may also be assessed a civil penalty of up to $5,000 and is subject to a suspension of all license privileges under this chapter for a period not exceeding 6 months.
4. A third violation within 1 year after a second violation is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 1 year, and such commercial harvester shall also be assessed a civil penalty of $5,000 and all license privileges under this chapter shall be permanently revoked.
5. A fourth or subsequent violation is a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083, with a mandatory minimum term of imprisonment of 1 year, and such commercial harvester shall also be assessed a mandatory civil penalty of $5,000 and all license privileges under this chapter shall be permanently revoked.

For purposes of this subsection, a violation means any judicial disposition other than acquittal or dismissal.

(8) REVOCATION OF LICENSES.—Any person licensed under this chapter who has been convicted of taking aquaculture species raised at a certified facility shall have his or her license revoked for 5 years by the commission pursuant to the provisions and procedures of s. 120.60.
(9) LICENSES AND ENTITIES SUBJECT TO PENALTIES.—For purposes of imposing license or permit suspensions or revocations authorized by this chapter, the license or permit under which the violation was committed is subject to suspension or revocation by the commission. For purposes of assessing monetary civil or administrative penalties authorized by this chapter, the commercial harvester cited and subsequently receiving a judicial disposition of other than dismissal or acquittal in a court of law is subject to the monetary penalty assessment by the commission. However, if the licensee or permitholder of record is not the commercial harvester receiving the citation and judicial disposition, the license or permit may be suspended or revoked only after the licensee or permitholder has been notified by the commission that the license or permit has been cited in a major violation and is now subject to suspension or revocation should the license or permit be cited for subsequent major violations.
History.—s. 2, ch. 61-231; s. 277, ch. 71-136; s. 2, ch. 85-234; s. 5, ch. 87-116; s. 5, ch. 88-412; s. 481, ch. 94-356; s. 980, ch. 95-148; s. 9, ch. 95-414; s. 10, ch. 96-247; s. 22, ch. 96-321; s. 57, ch. 97-100; s. 11, ch. 98-203; s. 2, ch. 98-227; s. 2, ch. 98-390; s. 95, ch. 99-245; s. 10, ch. 2000-197; s. 36, ch. 2000-364; s. 1, ch. 2001-62; s. 1, ch. 2002-264; s. 1, ch. 2003-143; s. 1, ch. 2004-61; s. 2, ch. 2006-304; s. 175, ch. 2008-247; s. 42, ch. 2009-21; s. 1, ch. 2014-107.
Note.—Former s. 370.021(1)-(6), (11), (12).