House Bill hb1243e2
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CS/HB 1243, Second Engrossed
1 A bill to be entitled
2 An act relating to the Fish and Wildlife
3 Conservation Commission; amending s. 370.021,
4 F.S.; revising violations and penalties
5 relating to saltwater fisheries; revising
6 grounds and penalties for violation of
7 restrictions imposed upon a saltwater products
8 licensee during the period of license
9 suspension or revocation; creating penalties
10 for purchase or sale of illegally harvested
11 saltwater products taken in violation of s. 16,
12 Art. X of the State Constitution; clarifying
13 that licenses or permits under which a
14 violation is committed may be subject to
15 suspension or revocation; clarifying that
16 persons, firms, or corporations cited for
17 violations are subject to monetary penalties
18 assessed by the commission; amending s. 370.06,
19 F.S.; revising and clarifying requirements for
20 saltwater products licenses and endorsements;
21 clarifying the saltwater products license
22 income exemption for disabled persons; limiting
23 the restricted species endorsement available to
24 such persons; providing that saltwater products
25 received by a wholesale dealer; are presumed to
26 have been purchased; amending s. 370.061, F.S.;
27 revising and clarifying requirements and
28 procedures for confiscation and forfeiture of
29 property used in a saltwater products
30 violation; requiring notice of seizure to the
31 registered owner of the property prior to
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1 issuance of a forfeiture order; authorizing the
2 courts to order property forfeited to the
3 commission for second or subsequent
4 convictions; revising procedure for return of
5 property to an innocent owner; amending s.
6 370.07, F.S.; prohibiting purchase or sale of
7 illegally taken saltwater products; providing a
8 penalty; providing that saltwater products
9 received by a retail dealer or restaurant are
10 presumed to have been purchased; correcting a
11 cross reference; reenacting ss. 370.07(5),
12 370.092(3) and (4), and 370.093(5), F.S., to
13 incorporate the amendment to s. 370.021, F.S.,
14 in references; amending s. 370.142, F.S.;
15 correcting cross references; amending s.
16 372.70, F.S.; providing that the state attorney
17 shall represent the state in prosecutions of
18 violations of hunting and fishing laws;
19 amending s. 372.9901, F.S.; revising procedures
20 for seizure and forfeiture of property used in
21 the illegal taking of deer or wild turkey;
22 requiring notice of seizure to the registered
23 owner of the property prior to issuance of a
24 forfeiture order; authorizing the courts to
25 order property forfeited to the commission for
26 second or subsequent convictions; revising
27 procedure for return of property to an innocent
28 owner; amending and renumbering s. 372.31,
29 F.S.; providing for exercise of the police
30 power of the state in cases relating to illegal
31 fishing; creating s. 372.99022, F.S.; providing
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1 penalties for molestation of or theft from
2 certain freshwater fishing gear; prohibiting
3 transfer of endorsements under certain
4 circumstances; amending s. 372.9904, F.S.;
5 correcting a cross reference; amending s.
6 372.9905, F.S.; combining and conforming
7 provisions relating to applicability of seizure
8 and forfeiture requirements; amending s.
9 323.001, F.S.; correcting a cross reference;
10 repealing ss. 372.311, 372.312, 372.313,
11 372.314, 372.315, 372.316, 372.317, 372.318,
12 372.319, 372.321, and 372.9902, F.S., relating
13 to forfeiture proceedings, delivery of property
14 to a claimant, proceedings when no claim is
15 filed or a claim is filed, representation of
16 the state by the state attorney, judgments of
17 forfeiture, service charges, disposition of
18 proceeds of forfeiture, exercise of police
19 power, and applicability of certain seizure and
20 forfeiture requirements; amending s. 370.12,
21 F.S.; requiring notice to counties where
22 manatee protection zones or manatee speed zones
23 may be imposed by the Fish and Wildlife
24 Conservation Commission; providing for
25 establishment of local rule review committees;
26 providing duties and responsibilities of the
27 counties, committees, and commission; providing
28 for committee reports and recommendations;
29 providing that written reports submitted to the
30 commission by the committees and Fish and
31 Wildlife Conservation Commission staff
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1 responses shall be part of the rulemaking
2 record; clarifying the Fish and Wildlife
3 Conservation Commission's authority to provide
4 comments to permitting agencies relating to the
5 protection of manatees; revising the
6 circumstances under which the commission may
7 post and regulate motorboat speeds to protect
8 manatees; requiring specified counties to
9 develop manatee protection plans that are
10 consistent with specified policy directive;
11 providing the commission with rulemaking
12 authority; amending s. 372.072, F.S.; requiring
13 that the commission develop a measurable
14 biological goal to define manatee recovery;
15 requiring the commission to use the goal in
16 developing management plans and work plans and
17 for determining the progress of manatee
18 recovery; amending s. 327.41, F.S.; conforming
19 a cross-reference; providing legislative intent
20 regarding manatee protection; providing for
21 compliance studies, enforcement initiatives,
22 and boater education plans; requiring the
23 commission to identify impediments to high
24 rates of compliance; providing legislative
25 intent that the provisions of the act not be
26 retroactively applied except as otherwise
27 provided; providing an exemption; providing an
28 effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
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CS/HB 1243, Second Engrossed
1 Section 1. Section 370.021, Florida Statutes, is
2 amended to read:
3 370.021 Administration; rules, publications, records;
4 penalties; injunctions.--
5 (1) PENALTIES.--Unless otherwise provided by law, any
6 person, firm, or corporation who is convicted for violating
7 any provision of this chapter, or any rule of the Fish and
8 Wildlife Conservation Commission relating to the conservation
9 of marine resources, shall be punished:
10 (a) Upon a first conviction, by imprisonment for a
11 period of not more than 60 days or by a fine of not less than
12 $100 nor more than $500, or by both such fine and
13 imprisonment.
14 (b) On a second or subsequent conviction within 12
15 months, by imprisonment for not more than 6 months or by a
16 fine of not less than $250 nor more than $1,000, or by both
17 such fine and imprisonment.
18
19 Upon final disposition of any alleged offense for which a
20 citation for any violation of this chapter or the rules of the
21 commission has been issued, the court shall, within 10 days,
22 certify the disposition to the commission.
23 (2) MAJOR VIOLATIONS.--In addition to the penalties
24 provided in paragraphs (1)(a) and (b), the court shall assess
25 additional penalties against any person, firm, or corporation
26 convicted of major violations as follows:
27 (a) For a violation involving more than 100 illegal
28 blue crabs, crawfish, or stone crabs, an additional penalty of
29 $10 for each illegal blue crab, crawfish, stone crab, or part
30 thereof.
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CS/HB 1243, Second Engrossed
1 (b) For a violation involving the taking or harvesting
2 of shrimp from a nursery or other prohibited area, or any two
3 violations within a 12-month period involving shrimping gear,
4 minimum size (count), or season, an additional penalty of $10
5 for each pound of illegal shrimp or part thereof.
6 (c) For a violation involving the taking or harvesting
7 of oysters from nonapproved areas or the taking or possession
8 of unculled oysters, an additional penalty of $10 for each
9 bushel of illegal oysters.
10 (d) For a violation involving the taking or harvesting
11 of clams from nonapproved areas, an additional penalty of $100
12 for each 500 count bag of illegal clams.
13 (e) For a violation involving the taking, harvesting,
14 or possession of any of the following species, which are
15 endangered, threatened, or of special concern:
16 1. Shortnose sturgeon (Acipenser brevirostrum);
17 2. Atlantic sturgeon (Acipenser oxyrhynchus);
18 3. Common snook (Centropomus undecimalis);
19 4. Atlantic loggerhead turtle (Caretta caretta
20 caretta);
21 5. Atlantic green turtle (Chelonia mydas mydas);
22 6. Leatherback turtle (Dermochelys coriacea);
23 7. Atlantic hawksbill turtle (Eretmochelys imbricata
24 imbracata);
25 8. Atlantic ridley turtle (Lepidochelys kempi); or
26 9. West Indian manatee (Trichechus manatus
27 latirostris),
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29 an additional penalty of $100 for each unit of marine life or
30 part thereof.
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1 (f) For a second or subsequent conviction within 24
2 months for any violation of the same law or rule involving the
3 taking or harvesting of more than 100 pounds of any finfish,
4 an additional penalty of $5 for each pound of illegal finfish.
5 (g) For any violation involving the taking,
6 harvesting, or possession of more than 1,000 pounds of any
7 illegal finfish, an additional penalty equivalent to the
8 wholesale value of the illegal finfish.
9 (h) The proceeds from the penalties assessed pursuant
10 to this subsection shall be deposited into the Marine
11 Resources Conservation Trust Fund to be used for marine
12 fisheries research or into the commission's Federal Law
13 Enforcement Trust Fund as provided in s. 372.107, as
14 applicable.
15 (h)(i) Permits issued to any person, firm, or
16 corporation by the commission to take or harvest saltwater
17 products, or any license issued pursuant to s. 370.06 or s.
18 370.07 may be suspended or revoked by the commission, pursuant
19 to the provisions and procedures of s. 120.60, for any major
20 violation prescribed in this subsection:
21 1. Upon a first conviction for a major violation, for
22 up to 30 calendar days.
23 2. Upon a second conviction for a violation which
24 occurs within 12 months after a prior violation, for up to 90
25 calendar days.
26 3. Upon a third conviction for a violation which
27 occurs within 24 months after a prior conviction violation,
28 for up to 180 calendar days.
29 4. Upon a fourth conviction for a violation which
30 occurs within 36 months after a prior conviction violation,
31 for a period of 6 months to 3 years.
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1 (i)(j) Upon the arrest and conviction for a major
2 violation involving stone crabs, the licenseholder must show
3 just cause why his or her license should not be suspended or
4 revoked. For the purposes of this paragraph, a "major
5 violation" means a major violation as prescribed for illegal
6 stone crabs; any single violation involving possession of more
7 than 25 stone crabs during the closed season or possession of
8 25 or more whole-bodied or egg-bearing stone crabs; any
9 violation for trap molestation, trap robbing, or pulling traps
10 at night; or any combination of violations in any
11 3-consecutive-year period wherein more than 75 illegal stone
12 crabs in the aggregate are involved.
13 (j)(k) Upon the arrest and conviction for a major
14 violation involving crawfish, the licenseholder must show just
15 cause why his or her license should not be suspended or
16 revoked. For the purposes of this paragraph, a "major
17 violation" means a major violation as prescribed for illegal
18 crawfish; any single violation involving possession of more
19 than 25 crawfish during the closed season or possession of
20 more than 25 wrung crawfish tails or more than 25 egg-bearing
21 or stripped crawfish; any violation for trap molestation, trap
22 robbing, or pulling traps at night; or any combination of
23 violations in any 3-consecutive-year period wherein more than
24 75 illegal crawfish in the aggregate are involved.
25 (k)(l) Upon the arrest and conviction for a major
26 violation involving blue crabs, the licenseholder shall show
27 just cause why his or her saltwater products license should
28 not be suspended or revoked. This paragraph shall not apply
29 to an individual fishing with no more than five traps. For
30 the purposes of this paragraph, a "major violation" means a
31 major violation as prescribed for illegal blue crabs, any
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1 single violation wherein 50 or more illegal blue crabs are
2 involved; any violation for trap molestation, trap robbing, or
3 pulling traps at night; or any combination of violations in
4 any 3-consecutive-year period wherein more than 100 illegal
5 blue crabs in the aggregate are involved.
6 (l)(m) Upon the conviction for a major violation
7 involving finfish, the licenseholder must show just cause why
8 his or her saltwater products license should not be suspended
9 or revoked. For the purposes of this paragraph, a major
10 violation is prescribed for the taking and harvesting of
11 illegal finfish, any single violation involving the possession
12 of more than 100 pounds of illegal finfish, or any combination
13 of violations in any 3-consecutive-year period wherein more
14 than 200 pounds of illegal finfish in the aggregate are
15 involved.
16 (n) Upon final disposition of any alleged offense for
17 which a citation for any violation of this chapter or the
18 rules of the Fish and Wildlife Conservation Commission has
19 been issued, the court shall, within 10 days, certify the
20 disposition to the commission.
21 (m)(o) For a violation involving the taking or
22 harvesting of any marine life species, as those species are
23 defined by rule of the commission, the harvest of which is
24 prohibited, or the taking or harvesting of such a species out
25 of season, or with an illegal gear or chemical, or any
26 violation involving the possession of 25 or more individual
27 specimens of marine life species, or any combination of
28 violations in any 3-year period involving more than 70 such
29 specimens in the aggregate, the suspension or revocation of
30 the licenseholder's marine life endorsement as provided in
31 paragraph (h) (i).
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1
2 Notwithstanding the provisions of s. 948.01, no court may
3 suspend, defer, or withhold adjudication of guilt or
4 imposition of sentence for any major violation prescribed in
5 this subsection. The proceeds from the penalties assessed
6 pursuant to this subsection shall be deposited into the Marine
7 Resources Conservation Trust Fund to be used for marine
8 fisheries research or into the commission's Federal Law
9 Enforcement Trust Fund as provided in s. 372.107, as
10 applicable.
11 (3) PENALTIES FOR USE OF ILLEGAL NETS.--
12 (a) It is shall be a major violation pursuant to this
13 section, punishable subsection (3) and shall be punished as
14 provided in paragraph (b) below for any person, firm, or
15 corporation to be simultaneously in possession of any species
16 of mullet in excess of the recreational daily bag limit and
17 any gill or other entangling net as defined in s. 16(c), Art.
18 X of the State Constitution. Simultaneous possession under
19 this provision shall include possession of mullet and gill or
20 other entangling nets on separate vessels or vehicles where
21 such vessels or vehicles are operated in coordination with one
22 another including vessels towed behind a main vessel. This
23 subsection does not prohibit a resident of this state from
24 transporting on land, from Alabama to this state, a commercial
25 quantity of mullet together with a gill net if:
26 1. The person possesses a valid commercial fishing
27 license that is issued by the State of Alabama and that allows
28 the person to use a gill net to legally harvest mullet in
29 commercial quantities from Alabama waters.
30 2. The person possesses a trip ticket issued in
31 Alabama and filled out to match the quantity of mullet being
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CS/HB 1243, Second Engrossed
1 transported, and the person is able to present such trip
2 ticket immediately upon entering this state.
3 3. The mullet are to be sold to a wholesale saltwater
4 products dealer located in Escambia County or Santa Rosa
5 County, which dealer also possesses a valid seafood dealer's
6 license issued by the State of Alabama. The dealer's name must
7 be clearly indicated on the trip ticket.
8 4. The mullet being transported are totally removed
9 from any net also being transported.
10 (b) In addition to being subject to the other
11 penalties provided in this chapter, any violation of s. 16(b),
12 Art. X of the State Constitution, or any rules of the Fish and
13 Wildlife Conservation commission which implement the gear
14 prohibitions and restrictions specified therein shall be
15 considered a major violation; and any person, firm, or
16 corporation receiving any judicial disposition other than
17 acquittal or dismissal of such violation shall be subject to
18 the following additional penalties:
19 1. For a first major violation within a 7-year period,
20 a civil penalty of $2,500 and suspension of all saltwater
21 products license privileges for 90 calendar days following
22 final disposition shall be imposed.
23 2. For a second major violation under this paragraph
24 charged within 7 years of a previous judicial disposition,
25 which results in a second judicial disposition other than
26 acquittal or dismissal, a civil penalty of $5,000 and
27 suspension of all saltwater products license privileges for 12
28 months shall be imposed.
29 3. For a third or and subsequent major violation under
30 this paragraph, charged within a 7-year period, resulting in a
31 third or subsequent judicial disposition other than acquittal
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1 or dismissal, a civil penalty of $5,000, lifetime revocation
2 of the saltwater products license, and forfeiture of all gear
3 and equipment used in the violation shall be imposed.
4
5 A court may suspend, defer, or withhold adjudication of guilt
6 or imposition of sentence only for any first violation of s.
7 16, Art. X of the State Constitution, or any rule or statute
8 implementing its restrictions, determined by a court only
9 after consideration of competent evidence of mitigating
10 circumstances to be a nonflagrant or minor violation of those
11 restrictions upon the use of nets. Any violation of s. 16,
12 Art. X of the State Constitution, or any rule or statute
13 implementing its restrictions, occurring within a 7-year
14 period commencing upon the conclusion of any judicial
15 proceeding resulting in any outcome other than acquittal shall
16 be punished as a second, third, or subsequent violation
17 accordingly.
18 (c) During the period of suspension or revocation of
19 saltwater license privileges under this subsection, the
20 licensee shall may not participate in the taking or
21 harvesting, or attempt the taking or harvesting, of saltwater
22 products from any vessel within the waters of the state; be
23 aboard any vessel on which a commercial quantity of saltwater
24 products is possessed through an activity requiring a license
25 pursuant to this section; or engage in, or any other activity
26 requiring a license, permit, or certificate issued pursuant to
27 this chapter. Any person who is convicted of violating
28 violates this paragraph is:
29 1. Upon a first or second conviction, is guilty of a
30 misdemeanor of the first degree, punishable as provided in s.
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1 775.082 or s. 775.083 to be punished as provided by paragraph
2 (1)(a) or paragraph (1)(b).
3 2. Upon a third or subsequent conviction, is guilty of
4 a felony of the third degree, punishable as provided in s.
5 775.082, s. 775.083, or s. 775.084.
6 (d) Upon reinstatement of saltwater license privileges
7 suspended pursuant to a violation of this subsection section,
8 a licensee owning or operating a vessel containing or
9 otherwise transporting in or on Florida waters any gill net or
10 other entangling net, or containing or otherwise transporting
11 in nearshore and inshore Florida waters any net containing
12 more than 500 square feet of mesh area shall remain restricted
13 for a period of 12 months following reinstatement, to
14 operating operation under the following conditions:
15 1. Vessels subject to this reinstatement period shall
16 be restricted to the corridors established by commission rule.
17 2. A violation of the reinstatement period provisions
18 shall be punishable pursuant to paragraphs (1)(a) and (b).
19 (e) Rescission and revocation proceedings under this
20 section shall be governed by chapter 120.
21 (4) ADDITIONAL PENALTIES FOR MAJOR VIOLATIONS
22 INVOLVING CERTAIN FINFISH.--It is shall be a major violation
23 pursuant to this section, and punishable as provided in
24 pursuant to paragraph (3)(b), for any person to be in
25 possession of any species of trout, snook, or redfish which is
26 three fish in excess of the recreational or commercial daily
27 bag limit.
28 (5) BUYING SALTWATER PRODUCTS; UNLICENSED SELLERS;
29 ILLEGALLY HARVESTED PRODUCTS FROM UNLICENSED SELLER.--In
30 addition to being subject to other penalties authorized
31 provided in this chapter, any violation of s. 370.06 or s.
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1 370.07, or rules of the commission implementing s. 370.06 or
2 s. 370.07, involving the purchase of saltwater products by a
3 commercial wholesale dealer, retail dealer, or restaurant
4 facility for public consumption from an unlicensed person,
5 firm, or corporation, or the sale of saltwater products by an
6 unlicensed person, firm, or corporation or the purchase or
7 sale of any saltwater product known to be taken in violation
8 of s. 16, Art. X of the State Constitution, or rule or statute
9 implementing the provisions thereof, by a commercial wholesale
10 dealer, retail dealer, or restaurant facility, for public
11 consumption, is shall be a major violation, and the commission
12 may assess the following penalties:
13 (a) For a first violation, the commission may assess a
14 civil penalty of up to $2,500 and may suspend the wholesale or
15 retail dealer's license privileges for up to 90 calendar days.
16 (b) For a second violation occurring within 12 months
17 of a prior violation, the commission may assess a civil
18 penalty of up to $5,000 and may suspend the wholesale or
19 retail dealer's license privileges for up to 180 calendar
20 days.
21 (c) For a third or subsequent violation occurring
22 within a 24-month period, the commission shall assess a civil
23 penalty of $5,000 and shall suspend the wholesale or retail
24 dealer's license privileges for up to 24 months.
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26 Any proceeds from the civil penalties assessed pursuant to
27 this subsection shall be deposited into the Marine Resources
28 Conservation Trust Fund and shall be used as follows: 40
29 percent for administration and processing purposes and 60
30 percent for law enforcement purposes.
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1 (6) PUBLICATIONS BY COMMISSION.--The Fish and Wildlife
2 Conservation commission is given authority, from time to time
3 in its discretion, to cause the statutory laws under its
4 jurisdiction, together with any rules and regulations
5 promulgated by it, to be published in pamphlet form for free
6 distribution in this state. The commission is authorized to
7 make charges for technical and educational publications and
8 mimeographed material of use for educational or reference
9 purposes. Such charges shall be made at the discretion of the
10 commission. Such charges may be sufficient to cover cost of
11 preparation, printing, publishing, and distribution. All
12 moneys received for publications shall be deposited into the
13 fund from which the cost of the publication was paid. The
14 commission is further authorized to enter into agreements with
15 persons, firms, corporations, governmental agencies, and other
16 institutions whereby publications may be exchanged
17 reciprocally in lieu of payments for said publications.
18 (7) POWERS OF OFFICERS.--
19 (a) Law enforcement officers of the Fish and Wildlife
20 Conservation commission are constituted law enforcement
21 officers of this state with full power to investigate and
22 arrest for any violation of the laws of this state and the
23 rules and regulations of the commission under their
24 jurisdiction. The general laws applicable to arrests by peace
25 officers of this state shall also be applicable to law
26 enforcement officers of the commission. Such law enforcement
27 officers may enter upon any land or waters of the state for
28 performance of their lawful duties and may take with them any
29 necessary equipment, and such entry will not constitute a
30 trespass. It is lawful for any boat, motor vehicle, or
31 aircraft owned or chartered by the commission or its agents or
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1 employees to land on and depart from any of the beaches or
2 waters of the state. Such law enforcement officers have the
3 authority, without warrant, to board, inspect, and search any
4 boat, fishing appliance, storage or processing plant,
5 fishhouse, spongehouse, oysterhouse, or other warehouse,
6 building, or vehicle engaged in transporting or storing any
7 fish or fishery products. Such authority to search and inspect
8 without a search warrant is limited to those cases in which
9 such law enforcement officers have reason to believe that fish
10 or any saltwater products are taken or kept for sale, barter,
11 transportation, or other purposes in violation of laws or
12 rules promulgated under this law. Any such law enforcement
13 officer may at any time seize or take possession of any
14 saltwater products or contraband which have been unlawfully
15 caught, taken, or processed or which are unlawfully possessed
16 or transported in violation of any of the laws of this state
17 or any rule or regulation of the commission. Such law
18 enforcement officers may arrest any person in the act of
19 violating any of the provisions of this law, the rules or
20 regulations of the commission, or any of the laws of this
21 state. It is hereby declared unlawful for any person to resist
22 such arrest or in any manner interfere, either by abetting or
23 assisting such resistance or otherwise interfering, with any
24 such law enforcement officer while engaged in the performance
25 of the duties imposed upon him or her by law or rule
26 regulation of the commission.
27 (b) The Legislature finds that the checking and
28 inspection of saltwater products aboard vessels is critical to
29 good fishery management and conservation and that, because
30 almost all saltwater products are either iced or cooled in
31 closed areas or containers, the enforcement of seasons, size
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1 limits, and bag limits can only be effective when inspection
2 of saltwater products so stored is immediate and routine.
3 Therefore, in addition to the authority granted in paragraph
4 (a), a law enforcement officer of the commission who has
5 probable cause to believe that the vessel has been used for
6 fishing prior to the inspection shall have full authority to
7 open and inspect all containers or areas where saltwater
8 products are normally kept aboard vessels while such vessels
9 are on the water, such as refrigerated or iced locations,
10 coolers, fish boxes, and bait wells, but specifically
11 excluding such containers that are located in sleeping or
12 living areas of the vessel.
13 (8) RETENTION, DESTRUCTION, AND REPRODUCTION OF
14 RECORDS.--Records and documents of the Fish and Wildlife
15 Conservation commission created in compliance with and in the
16 implementation of this chapter or former chapter 371 shall be
17 retained by the commission as specified in record retention
18 schedules established under the general provisions of chapters
19 119 and 257. Such records retained by the Department of
20 Environmental Protection on July 1, 1999, shall be transferred
21 to the commission. Further, the commission is authorized to:
22 (a) Destroy, or otherwise dispose of, those records
23 and documents in conformity with the approved retention
24 schedules.
25 (b) Photograph, microphotograph, or reproduce such
26 records and documents on film, as authorized and directed by
27 the approved retention schedules, whereby each page will be
28 exposed in exact conformity with the original records and
29 documents retained in compliance with the provisions of this
30 section. Photographs or microphotographs in the form of film
31 or print of any records, made in compliance with the
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1 provisions of this section, shall have the same force and
2 effect as the originals thereof would have and shall be
3 treated as originals for the purpose of their admissibility in
4 evidence. Duly certified or authenticated reproductions of
5 such photographs or microphotographs shall be admitted in
6 evidence equally with the original photographs or
7 microphotographs. The impression of the seal of the Fish and
8 Wildlife Conservation commission on a certificate made
9 pursuant to the provisions hereof and signed by the executive
10 director of the Fish and Wildlife Conservation commission
11 shall entitle the same to be received in evidence in all
12 courts and in all proceedings in this state and shall be prima
13 facie evidence of all factual matters set forth in the
14 certificate. A certificate may relate to one or more records,
15 as set forth in the certificate, or in a schedule continued on
16 an attachment to the certificate.
17 (c) Furnish certified copies of such records for a fee
18 of $1 which shall be deposited in the Marine Resources
19 Conservation Trust Fund.
20 (9) COURTS OF EQUITY MAY ENJOIN.--Courts of equity in
21 this state have jurisdiction to enforce the conservation laws
22 of this state by injunction.
23 (10) BOND OF EMPLOYEES.--The commission department may
24 require, as it determines, that bond be given by any employee
25 of the commission department or divisions thereof, payable to
26 the Governor of the state and the Governor's successor in
27 office, for the use and benefit of those whom it may concern,
28 in such penal sums with good and sufficient surety or sureties
29 approved by the commission department conditioned for the
30 faithful performance of the duties of such employee.
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1 (11) REVOCATION OF LICENSES.--Any person licensed
2 under this chapter who has been convicted of taking
3 aquaculture species raised at a certified facility shall have
4 his or her license revoked for 5 years by the Fish and
5 Wildlife Conservation commission pursuant to the provisions
6 and procedures of s. 120.60.
7 (12) LICENSES AND ENTITIES SUBJECT TO PENALTIES.--For
8 purposes of imposing license or permit suspensions or
9 revocations authorized by this chapter, the license or permit
10 under which the violation was committed is subject to
11 suspension or revocation by the commission. For purposes of
12 assessing monetary civil or administrative penalties
13 authorized by this chapter, the person, firm, or corporation
14 cited and subsequently receiving a judicial disposition of
15 other than dismissal or acquittal in a court of law is subject
16 to the monetary penalty assessment by the commission. However,
17 if the license or permit holder of record is not the person,
18 firm, or corporation receiving the citation and judicial
19 disposition, the license or permit may be suspended or revoked
20 only after the license or permit holder has been notified by
21 the commission that the license or permit has been cited in a
22 major violation and is now subject to suspension or revocation
23 should the license or permit be cited for subsequent major
24 violations.
25 Section 2. Subsection (2) of section 370.06, Florida
26 Statutes, is amended to read:
27 370.06 Licenses.--
28 (2) SALTWATER PRODUCTS LICENSE.--
29 (a) Every person, firm, or corporation that sells,
30 offers for sale, barters, or exchanges for merchandise any
31 saltwater products, or which harvests saltwater products with
19
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1 certain gear or equipment as specified by law, must have a
2 valid saltwater products license, except that the holder of an
3 aquaculture certificate under s. 597.004 is not required to
4 purchase and possess a saltwater products license in order to
5 possess, transport, or sell marine aquaculture products. Each
6 saltwater products license allows the holder to engage in any
7 of the activities for which the license is required. The
8 license must be in the possession of the licenseholder or
9 aboard the vessel and is shall be subject to inspection at any
10 time that harvesting activities for which a saltwater products
11 license is required are being conducted.
12 (b)1. A restricted species endorsement on the
13 saltwater products license is required to sell to a licensed
14 wholesale dealer those species which the state, by law or
15 rule, has designated as "restricted species." This endorsement
16 may be issued only to a person who is at least 16 years of
17 age, or to a firm certifying that over 25 percent of its
18 income or $5,000 of its income, whichever is less, is
19 attributable to the sale of saltwater products pursuant to a
20 saltwater products license issued under this paragraph or a
21 similar license from another state. This endorsement may also
22 be issued to a for-profit corporation if it certifies that at
23 least $5,000 of its income is attributable to the sale of
24 saltwater products pursuant to a saltwater products license
25 issued under this paragraph or a similar license from another
26 state. However, if at least 50 percent of the annual income of
27 a person, firm, or for-profit corporation is derived from
28 charter fishing, the person, firm, or for-profit corporation
29 must certify that at least $2,500 of the income of the person,
30 firm, or corporation is attributable to the sale of saltwater
31 products pursuant to a saltwater products license issued under
20
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CS/HB 1243, Second Engrossed
1 this paragraph or a similar license from another state, in
2 order to be issued the endorsement. Such income attribution
3 must apply to at least 1 year out of the last 3 years. For the
4 purpose of this section, "income" means that income that which
5 is attributable to work, employment, entrepreneurship,
6 pensions, retirement benefits, and social security benefits.
7 2. To renew an existing restricted species
8 endorsement, a marine aquaculture producer possessing a valid
9 saltwater products license with a restricted species
10 endorsement may apply income from the sale of marine
11 aquaculture products to licensed wholesale dealers.
12 3.1. The commission is authorized to require
13 verification of such income for all restricted species
14 endorsements issued pursuant to this paragraph. Acceptable
15 proof of income earned from the sale of saltwater products
16 shall be:
17 a. Copies of trip ticket records generated pursuant to
18 this subsection (marine fisheries information system),
19 documenting qualifying sale of saltwater products;
20 b. Copies of sales records from locales other than
21 Florida documenting qualifying sale of saltwater products;
22 c. A copy of the applicable federal income tax return,
23 including Form 1099 attachments, verifying income earned from
24 the sale of saltwater products;
25 d. Crew share statements verifying income earned from
26 the sale of saltwater products; or
27 e. A certified public accountant's notarized statement
28 attesting to qualifying source and amount of income.
29
30 Notwithstanding any other provision of law Any provision of
31 this section or any other section of the Florida Statutes to
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CS/HB 1243, Second Engrossed
1 the contrary notwithstanding, any person who owns a retail
2 seafood market or restaurant at a fixed location for at least
3 3 years, who has had an occupational license for 3 years prior
4 to January 1, 1990, who harvests saltwater products to supply
5 his or her retail store, and who has had a saltwater products
6 license for 1 of the past 3 license years prior to January 1,
7 1990, may provide proof of his or her verification of income
8 and sales value at the person's retail seafood market or
9 restaurant and in his or her saltwater products enterprise by
10 affidavit and shall thereupon be issued a restricted species
11 endorsement.
12 4.2. Exceptions from income requirements shall be as
13 follows:
14 a. A permanent restricted species endorsement shall be
15 available to those persons age 62 and older who have qualified
16 for such endorsement for at least 3 out of the last 5 years.
17 b. Active military duty time shall be excluded from
18 consideration of time necessary to qualify and shall not be
19 counted against the applicant for purposes of qualifying.
20 c. Upon the sale of a used commercial fishing vessel
21 owned by a person, firm, or corporation possessing or eligible
22 for a restricted species endorsement, the purchaser of such
23 vessel shall be exempted from the qualifying income
24 requirement for the purpose of obtaining a restricted species
25 endorsement for a period of 1 year after purchase of the
26 vessel.
27 d. Upon the death or permanent disablement of a person
28 possessing a restricted species endorsement, an immediate
29 family member wishing to carry on the fishing operation shall
30 be exempted from the qualifying income requirement for the
31
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1 purpose of obtaining a restricted species endorsement for a
2 period of 1 year after the death or disablement.
3 e. A restricted species endorsement may be issued on
4 an individual saltwater products license to a person age 62 or
5 older who documents that at least $2,500 of such person's
6 income is attributable to the sale of saltwater products
7 pursuant to the provisions of this paragraph.
8 f. A permanent restricted species endorsement may also
9 be issued on an individual saltwater products license to a
10 person age 70 or older who has held a saltwater products
11 license for at least 3 of the last 5 license years.
12 g. Any resident who is certified to be totally and
13 permanently disabled by the Railroad Retirement Board, by the
14 United States Department of Veterans Affairs or its
15 predecessor, or by any branch of the United States Armed
16 Forces, or who holds a valid identification card issued by the
17 Department of Veterans' Affairs pursuant to s. 295.17, upon
18 proof of the same, or any resident certified to be disabled by
19 the United States Social Security Administration or a licensed
20 physician, upon proof of the same, shall be exempted from the
21 income requirements if he or she also has held a saltwater
22 products license for at least 3 of the last 5 license years
23 prior to the date of the disability. A restricted species
24 endorsement issued under this paragraph may be issued only on
25 an individual saltwater products license.
26 (c) At least one saltwater products license bearing a
27 restricted species endorsement shall be aboard any vessel
28 harvesting restricted species in excess of any bag limit or
29 when fishing under a commercial quota or in commercial
30 quantities, and such vessel shall have a commercial vessel
31 registration. This subsection does not apply to any person,
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1 firm, or corporation licensed under s. 370.07(1)(a)1. or (b)
2 for activities pursuant to such licenses.
3 (d) A saltwater products license may be issued in the
4 name of an individual or a valid boat registration number.
5 Such license is not transferable. A decal shall be issued with
6 each saltwater products license issued to a valid boat
7 registration number. The saltwater products license decal
8 shall be the same color as the vessel registration decal
9 issued each year pursuant to s. 328.48(5) and shall indicate
10 the period of time such license is valid. The saltwater
11 products license decal shall be placed beside the vessel
12 registration decal and, in the case of an undocumented vessel,
13 shall be placed so that the vessel registration decal lies
14 between the vessel registration number and the saltwater
15 products license decal. Any saltwater products license decal
16 for a previous year shall be removed from a vessel operating
17 on the waters of the state.
18 (e) A resident shall pay an annual license fee of $50
19 for a saltwater products license issued in the name of an
20 individual or $100 for a saltwater products license issued to
21 a valid boat registration number. A nonresident shall pay an
22 annual license fee of $200 for a saltwater products license
23 issued in the name of an individual or $400 for a saltwater
24 products license issued to a valid boat registration number.
25 An alien shall pay an annual license fee of $300 for a
26 saltwater products license issued in the name of an individual
27 or $600 for a saltwater products license issued to a valid
28 boat registration number.
29 (f) Any person who sells saltwater products pursuant
30 to a saltwater products this license may sell only to a
31 licensed wholesale dealer. A saltwater products license must
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1 be presented to the licensed wholesale dealer each time
2 saltwater products are sold, and an imprint made thereof. The
3 wholesale dealer shall keep records of each transaction in
4 such detail as may be required by rule of the commission not
5 in conflict with s. 370.07(6), and shall provide the holder of
6 the saltwater products license with a copy of the record. It
7 is unlawful for any licensed wholesale dealer to buy saltwater
8 products from any unlicensed person under the provisions of
9 this section, except that a licensed wholesale dealer may buy
10 from another licensed wholesale dealer. It is unlawful for any
11 licensed wholesale dealer to buy saltwater products designated
12 as "restricted species" from any person, firm, or corporation
13 not possessing a restricted species endorsement on his or her
14 saltwater products license under the provisions of this
15 section, except that a licensed wholesale dealer may buy from
16 another licensed wholesale dealer. For purposes of this
17 subsection, any saltwater products received by a wholesale
18 dealer are presumed to have been purchased.
19 (g) The commission shall be the licensing agency, may
20 contract with private persons or entities to implement aspects
21 of the licensing program, and shall establish by rule a marine
22 fisheries information system in conjunction with the licensing
23 program to gather fisheries data.
24 (h)(b) Any person who sells, offers for sale, barters,
25 or exchanges for merchandise saltwater products must have a
26 method of catch preservation which meets the requirements and
27 standards of the seafood quality control code promulgated by
28 the commission.
29 (i)(c) A saltwater products license is required to
30 harvest commercial quantities of saltwater products. Any
31 vessel from which commercial quantities of saltwater products
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CS/HB 1243, Second Engrossed
1 are harvested must have a commercial vessel registration.
2 Commercial quantities of saltwater products shall be defined
3 as:
4 1. With respect to those species for which no bag
5 limit has been established, more than 100 pounds per person
6 per day, provided that the harvesting of two fish or less per
7 person per day shall not be considered commercial quantities
8 regardless of aggregate weight; and
9 2. With respect to those species for which a bag limit
10 has been established, more than the bag limit allowed by law
11 or rule.
12 (j)(d)1. In addition to the saltwater products
13 license, a marine life fishing endorsement is required for the
14 harvest of marine life species as defined by rule of the Fish
15 and Wildlife Conservation Commission. This endorsement may be
16 issued only to a person who is at least 16 years of age or
17 older or to a corporation holding a valid restricted species
18 endorsement.
19 2.a. Effective July 1, 1998, and until July 1, 2002, a
20 marine life endorsement may not be issued under this
21 paragraph, except that those endorsements that are active
22 during the 1997-1998 fiscal year may be renewed.
23 b. In 1998 persons or corporations holding a marine
24 life endorsement that was active in the 1997-1998 fiscal year
25 or an immediate family member of that person must request
26 renewal of the marine life endorsement before December 31,
27 1998.
28 c. In subsequent years and until July 1, 2002, a
29 marine life endorsement holder or member of his or her
30 immediate family must request renewal of the marine life
31 endorsement before September 30 of each year.
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CS/HB 1243, Second Engrossed
1 d. If a person or corporation holding an active marine
2 life fishing endorsement or a member of that person's
3 immediate family does not request renewal of the endorsement
4 before the applicable dates specified in this paragraph, the
5 commission shall deactivate that marine life fishing
6 endorsement.
7 e. In the event of the death or disability of a person
8 holding an active marine life fishing endorsement, the
9 endorsement may be transferred by the person to a member of
10 his or her immediate family or may be renewed by any person so
11 designated by the executor of the person's estate.
12 f. Persons or corporations who hold saltwater product
13 licenses with marine life fishing endorsements issued to their
14 vessel registration numbers and who subsequently replace their
15 existing vessels with new vessels may transfer the existing
16 marine life fishing endorsement to the new boat registration
17 numbers.
18 g. Persons or corporations who hold saltwater product
19 licenses with marine life fishing endorsements issued to their
20 name and who subsequently incorporate or unincorporate may
21 transfer the existing marine life fishing endorsement to the
22 new corporation or person.
23 3. The fee for a marine life fishery endorsement on a
24 saltwater products license shall be $75. These license fees
25 shall be collected and deposited in the Marine Resources
26 Conservation Trust Fund and used for the purchase and
27 installation of vessel mooring buoys at coral reef sites and
28 for research related to marine fisheries.
29 Section 3. Section 370.061, Florida Statutes, is
30 amended to read:
31 (Substantial rewording of section. See
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CS/HB 1243, Second Engrossed
1 s. 370.061, F.S., for present text.)
2 370.061 Confiscation, seizure, and forfeiture of
3 property and products.--
4 (1) SEIZURE, FORFEITURE; PROCEDURE.--Nothing in this
5 subsection affects the commission's authority to confiscate in
6 any case illegal saltwater products, illegally taken saltwater
7 products, or illegal fishing gear in accordance with this
8 section.
9 (a) Property used in connection with a violation
10 resulting in a conviction for the illegal taking, or attempted
11 taking, sale, possession, or transportation of saltwater
12 products is subject to seizure and forfeiture as part of the
13 commission's efforts to protect the state's marine life.
14 Saltwater products and seines, nets, boats, motors, other
15 fishing devices or equipment, and vehicles or other means of
16 transportation used or attempted to be used in connection
17 with, as an instrumentality of, or in aiding and abetting such
18 illegal taking or attempted taking are hereby declared to be
19 nuisances.
20 (b) Upon a conviction of a person in whose possession
21 the property was found, the court having jurisdiction over the
22 criminal offense, notwithstanding any jurisdictional
23 limitations on the amount in controversy, may make a finding
24 that the property was used in connection with a saltwater
25 products violation and may order such property forfeited to
26 the commission.
27 (c) For purposes of this section, a conviction, except
28 with respect to a first time offender under this chapter for
29 whom adjudication is withheld, is any disposition other than
30 acquittal or dismissal.
31
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CS/HB 1243, Second Engrossed
1 (2) SEIZURE, FORFEITURE; NOTICE.--The requirement for
2 a conviction before forfeiture of property establishes to the
3 exclusion of any reasonable doubt that the property was used
4 in connection with the violation resulting in conviction.
5 Prior to the issuance of a forfeiture order for any vessel,
6 vehicle, or other property under subsection (1), the
7 commission shall seize the property and notify the registered
8 owner, if any, that the property has been seized by the
9 commission. Except as provided in subsection (6), the
10 procedures of chapter 932 do not apply to any seizure or
11 forfeiture of property under this section.
12 (a) Notification of property seized under this section
13 must be sent by certified mail to a registered owner within 14
14 days after seizure. If the commission, after diligent
15 inquiry, cannot ascertain the registered owner, the notice
16 requirement is satisfied.
17 (b) Upon a first conviction for a violation under this
18 chapter, the property seized under this section shall be
19 returned to the registered owner if the commission fails to
20 prove by a preponderance of the evidence before the court
21 having jurisdiction over the criminal offense that the
22 registered owner aided in, abetted in, participated in, gave
23 consent to, knew of, or had reason to know of the violation.
24 (c) Upon a second or subsequent conviction for a
25 violation under this chapter, the burden shall be on the
26 registered owner to prove by a preponderance of the evidence
27 before the court having jurisdiction over the criminal offense
28 that the registered owner in no way aided in, abetted in,
29 participated in, knew of, or had reason to know of the second
30 or subsequent violation which resulted in seizure of the
31 lawful property.
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CS/HB 1243, Second Engrossed
1 (d) Any request for a hearing from a registered owner
2 asserting innocence to recover property seized under these
3 provisions must be sent to the commission's Division of Law
4 Enforcement within 21 days after the registered owner's
5 receipt of the notice of seizure. If a request for a hearing
6 is not timely received, the court shall forfeit to the
7 commission the right to, title to, and interest in the
8 property seized, subject only to the rights and interests of
9 bona fide lienholders.
10 (e) If a motor vehicle is seized under this section
11 and is subject to any existing liens recorded under s. 319.27,
12 all further proceedings shall be governed by the expressed
13 intent of the Legislature not to divest any innocent person,
14 firm, or corporation holding such a recorded lien of any of
15 its reversionary rights in such motor vehicle or of any of its
16 rights as prescribed in s. 319.27, and upon any default by the
17 violator purchaser, the lienholder may foreclose its lien and
18 take possession of the motor vehicle involved.
19 (3) COURT ORDER OF FORFEITURE.--When any illegal or
20 illegally used seine, net, trap, or other fishing device or
21 equipment, or illegally taken, possessed, or transported
22 saltwater products, are found and taken into custody, and the
23 owner thereof is not known to the officer finding the item or
24 items, such officer shall immediately procure from the county
25 court judge of the county wherein the item or items were found
26 an order forfeiting the illegally used or illegally taken
27 saltwater products, seines, nets, traps, boats, motors, or
28 other fishing devices to the commission.
29 (4) DESTRUCTION OR DISPOSITION OF PROPERTY.--All
30 property forfeited under this section may be destroyed, used
31 by the commission, disposed of by gift to charitable or state
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1 institutions, or sold, with the proceeds derived from the sale
2 deposited into the Marine Resources Conservation Trust Fund to
3 be used for law enforcement purposes, or into the commission's
4 Federal Law Enforcement Trust Fund as provided in s. 372.107,
5 as applicable.
6 (5) CONFISCATION AND SALE OF PERISHABLE SALTWATER
7 PRODUCTS; PROCEDURE.--
8 (a) When an arrest is made pursuant to the provisions
9 of this chapter and illegal, perishable saltwater products or
10 saltwater products illegally taken or landed are confiscated,
11 the defendant may post bond or cash deposit in an amount
12 determined by the judge to be the fair value of such
13 confiscated products. The defendant shall have 24 hours to
14 transport the products outside the limits of Florida for sale
15 or other disposition. Should no bond or cash deposit be given
16 within the time fixed by the judge, the judge shall order the
17 sale of the confiscated saltwater products at the highest
18 price obtainable. When feasible, at least three bids shall be
19 requested.
20 (b) Moneys received from the sale of confiscated
21 saltwater products, either by the defendant or by order of the
22 court, shall be received by the judge and shall be remitted to
23 the commission to be deposited into a special escrow account
24 in the State Treasury to be held in trust pending the outcome
25 of the trial of the defendant. If bond is posted by the
26 defendant, it shall also be remitted to the commission to be
27 held in escrow pending the outcome of the trial of the
28 defendant.
29 (c) In the event of acquittal, the proceeds of a sale
30 or the bond or cash deposit required by this subsection shall
31 be returned to the defendant. In the event of a conviction,
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1 the proceeds of a sale or the bond or cash deposit required by
2 this subsection shall be deposited into the Marine Resources
3 Conservation Trust Fund to be used for law enforcement
4 purposes or into the commission's Federal Law Enforcement
5 Trust Fund as provided in s. 372.107, as applicable. Such
6 deposit into the Marine Resources Conservation Trust Fund or
7 the Federal Law Enforcement Trust Fund shall constitute
8 confiscation.
9 (d) For purposes of confiscation under this
10 subsection, the term "saltwater products" has the meaning set
11 out in s. 370.01(25), except that the term does not include
12 saltwater products harvested under the authority of a
13 recreational license unless the amount of such harvested
14 products exceeds three times the applicable recreational bag
15 limit for trout, snook, or redfish.
16 (6) MUNICIPAL OR COUNTY ENFORCEMENT; SUPPLEMENTAL
17 FUNDING.--
18 (a) Any municipal or county law enforcement agency
19 that enforces or assists the commission in enforcing the
20 provisions of this chapter, which results in a forfeiture of
21 property as provided in this section, shall be entitled to
22 receive all or a share of any property based upon its
23 participation in such enforcement.
24 (b) If a municipal or county law enforcement agency
25 has a marine enforcement unit, any property delivered to any
26 municipal or county law enforcement agency as provided in
27 paragraph (a) may be retained or sold by the municipal or
28 county law enforcement agency, and the property or proceeds
29 shall be used to enforce the provisions of this chapter and
30 chapters 327 and 328. If a municipal or county law enforcement
31 agency does not have a marine enforcement unit, such property
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CS/HB 1243, Second Engrossed
1 or proceeds shall be disposed of under the provisions of
2 chapter 932.
3 (c) Any funds received by a municipal or county law
4 enforcement agency pursuant to this subsection shall be
5 supplemental funds and may not be used as replacement funds by
6 the municipality or county.
7 Section 4. Subsections (4), (7), and (8) of section
8 370.07, Florida Statutes, are amended, and, for the purpose of
9 incorporating the amendment to section 370.021, Florida
10 Statutes, in a reference thereto, paragraph (c) of subsection
11 (5) of section 370.07, Florida Statutes, is reenacted, to
12 read:
13 370.07 Wholesale and retail saltwater products
14 dealers; regulation.--
15 (4) TRANSPORTATION OF SALTWATER PRODUCTS.--
16 (a) A person transporting in this state saltwater
17 products that were produced in this state, regardless of
18 destination, shall have in his or her possession invoices,
19 bills of lading, or other similar instruments showing the
20 number of packages, boxes, or containers and the number of
21 pounds of each species and the name, physical address, and the
22 Florida wholesale dealer number of the dealer of origin.
23 (b) A person transporting in this state saltwater
24 products that were produced outside this state to be delivered
25 to a destination in this state shall have in his or her
26 possession invoices, bills of lading, or other similar
27 instruments showing the number of packages, boxes, or
28 containers and the number of pounds of each species, the name
29 and physical address of the dealer of origin, and the name,
30 physical address, and Florida wholesale dealer number of the
31 Florida dealer to whom the shipment is to be delivered.
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1 (c) A person transporting in this state saltwater
2 products that were produced outside this state which are to be
3 delivered to a destination outside this state shall have in
4 his or her possession invoices, bills of lading, or other
5 similar instruments showing the number of packages, boxes, or
6 containers and the number of pounds of each species, the name
7 and physical address of the dealer of origin, and the name and
8 physical address of the dealer to whom the shipment is to be
9 delivered.
10 (d) If the saltwater products in transit come came
11 from more than one dealer, distributor, or producer, each lot
12 from each dealer shall be covered by invoices, bills of
13 lading, and other similar instruments showing the number of
14 boxes or containers and the number of pounds of each species.
15 Each invoice, bill of lading, and other similar instrument
16 shall display the wholesale dealer license number and the name
17 and physical address of the dealer, distributor, or producer
18 of the lot covered by the instrument.
19 (e) It is unlawful to sell, deliver, ship, or
20 transport, or to possess for the purpose of selling,
21 delivering, shipping, or transporting, any saltwater products
22 without all invoices concerning the of such products having
23 thereon the wholesale dealer license number in the such form
24 as may be prescribed under the provisions of this subsection
25 and the rules and regulations of the Fish and Wildlife
26 Conservation commission. Any saltwater products found in the
27 possession of any person who is in violation of this paragraph
28 provision may be seized by the commission and disposed of in
29 the manner provided by law.
30 (f) Nothing contained in this subsection may be
31 construed to apply to the sale and delivery to a consumer of
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1 saltwater products in an ordinary retail transaction by a
2 licensed retail dealer who has purchased such products from a
3 licensed wholesale dealer, or to the sale and delivery of the
4 catch or products of a saltwater products licensee to a
5 Florida-licensed wholesale dealer.
6 (g) Wholesale dealers' licenses shall be issued only
7 to applicants who furnish to the commission satisfactory
8 evidence of law-abiding reputation and who pledge themselves
9 to faithfully observe all of the laws, rules, and regulations
10 of this state relating to the conservation of, dealing in, or
11 taking, selling, transporting, or possession of saltwater
12 products, and to cooperate in the enforcement of all such laws
13 to every reasonable extent. This pledge may be included in the
14 application for license.
15 (h) A wholesale dealer, retail dealer, or restaurant
16 facility shall not purchase or sell for public consumption any
17 saltwater products known to be taken illegally, or known to be
18 taken in violation of s. 16, Art. X of the State Constitution,
19 or any rule or statute implementing its provisions.
20 (i)(h) Any person who violates the provisions of this
21 subsection commits is guilty of a misdemeanor of the first
22 degree, punishable as provided in s. 775.082 or s. 775.083.
23 (5) LICENSE DENIAL, SUSPENSION, OR REVOCATION.--
24 (c) In addition to, or in lieu of, the penalty imposed
25 pursuant to this subsection, the commission may impose
26 penalties pursuant to s. 370.021.
27 (7) PURCHASE OF SALTWATER PRODUCTS AT TEMPORARY
28 LOCATION.--Wholesale dealers purchasing saltwater products
29 pursuant to s. 370.06(2)(a) at any site other than a site
30 located in a county where the dealer has a permanent address
31 must notify the Fish and Wildlife Conservation Commission of
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1 the location of the temporary site of business for each day
2 business is to be conducted at such site.
3 (8) UNLAWFUL PURCHASE OF SALTWATER PRODUCTS.--It is
4 unlawful for any licensed retail dealer or any restaurant
5 licensed by the Division of Hotels and Restaurants of the
6 Department of Business and Professional Regulation to buy
7 saltwater products from any person other than a licensed
8 wholesale or retail dealer. For purposes of this subsection,
9 any saltwater products received by a retail dealer or a
10 restaurant are presumed to have been purchased.
11 Section 5. For purposes of incorporating the amendment
12 to section 370.021, Florida Statutes, in references thereto,
13 subsections (3) and (4) of section 370.092, Florida Statutes,
14 are reenacted to read:
15 370.092 Carriage of proscribed nets across Florida
16 waters.--
17 (3) Notwithstanding subsections (1) and (2), unless
18 authorized by rule of the Fish and Wildlife Conservation
19 Commission, it is a major violation under this section,
20 punishable as provided in s. 370.021(3), for any person, firm,
21 or corporation to possess any gill or entangling net, or any
22 seine net larger than 500 square feet in mesh area, on any
23 airboat or on any other vessel less than 22 feet in length and
24 on any vessel less than 25 feet if primary power of the vessel
25 is mounted forward of the vessel center point. Gill or
26 entangling nets shall be as defined in s. 16, Art. X of the
27 State Constitution, s. 370.093(2)(b), or in a rule of the Fish
28 and Wildlife Conservation Commission implementing s. 16, Art.
29 X of the State Constitution. Vessel length shall be determined
30 in accordance with current United States Coast Guard
31 regulations specified in the Code of Federal Regulations or as
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1 titled by the State of Florida. The Marine Fisheries
2 Commission is directed to initiate by July 1, 1998, rulemaking
3 to adjust by rule the use of gear on vessels longer than 22
4 feet where the primary power of the vessel is mounted forward
5 of the vessel center point in order to prevent the illegal use
6 of gill and entangling nets in state waters and to provide
7 reasonable opportunities for the use of legal net gear in
8 adjacent federal waters.
9 (4) The Fish and Wildlife Conservation Commission
10 shall adopt rules to prohibit the possession and sale of
11 mullet taken in illegal gill or entangling nets. Violations of
12 such rules shall be punishable as provided in s. 370.021(3).
13 Section 6. For purposes of incorporating the amendment
14 to section 370.021, Florida Statutes, in a reference thereto,
15 subsection (5) of section 370.093, Florida Statutes, is
16 reenacted to read:
17 370.093 Illegal use of nets.--
18 (5) Any person who violates this section shall be
19 punished as provided in s. 370.021(3).
20 Section 7. Paragraphs (a) and (c) of subsection (2) of
21 section 370.142, Florida Statutes, are amended to read:
22 370.142 Spiny lobster trap certificate program.--
23 (2) TRANSFERABLE TRAP CERTIFICATES; TRAP TAGS; FEES;
24 PENALTIES.--The Fish and Wildlife Conservation Commission
25 shall establish a trap certificate program for the spiny
26 lobster fishery of this state and shall be responsible for its
27 administration and enforcement as follows:
28 (a) Transferable trap certificates.--Each holder of a
29 saltwater products license who uses traps for taking or
30 attempting to take spiny lobsters shall be required to have a
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1 certificate on record for each trap possessed or used
2 therefor, except as otherwise provided in this section.
3 1. The Department of Environmental Protection shall
4 initially allot such certificates to each licenseholder with a
5 current crawfish trap number who uses traps. The number of
6 such certificates allotted to each such licenseholder shall be
7 based on the trap/catch coefficient established pursuant to
8 trip ticket records generated under the provisions of s.
9 370.06(2)(a) over a 3-year base period ending June 30, 1991.
10 The trap/catch coefficient shall be calculated by dividing the
11 sum of the highest reported single license-year landings up to
12 a maximum of 30,000 pounds for each such licenseholder during
13 the base period by 700,000. Each such licenseholder shall then
14 be allotted the number of certificates derived by dividing his
15 or her highest reported single license-year landings up to a
16 maximum of 30,000 pounds during the base period by the
17 trap/catch coefficient. Nevertheless, no licenseholder with a
18 current crawfish trap number shall be allotted fewer than 10
19 certificates. However, certificates may only be issued to
20 individuals; therefore, all licenseholders other than
21 individual licenseholders shall designate the individual or
22 individuals to whom their certificates will be allotted and
23 the number thereof to each, if more than one. After initial
24 issuance, trap certificates are transferable on a market basis
25 and may be transferred from one licenseholder to another for a
26 fair market value agreed upon between the transferor and
27 transferee. Each such transfer shall, within 72 hours thereof,
28 be recorded on a notarized form provided for that purpose by
29 the Fish and Wildlife Conservation Commission and hand
30 delivered or sent by certified mail, return receipt requested,
31 to the commission for recordkeeping purposes. In addition, in
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1 order to cover the added administrative costs of the program
2 and to recover an equitable natural resource rent for the
3 people of the state, a transfer fee of $2 per certificate
4 transferred shall be assessed against the purchasing
5 licenseholder and sent by money order or cashier's check with
6 the certificate transfer form. Also, in addition to the
7 transfer fee, a surcharge of $5 per certificate transferred or
8 25 percent of the actual market value, whichever is greater,
9 given to the transferor shall be assessed the first time a
10 certificate is transferred outside the original transferor's
11 immediate family. No transfer of a certificate shall be
12 effective until the commission receives the notarized transfer
13 form and the transfer fee, including any surcharge, is paid.
14 The commission may establish by rule an amount of equitable
15 rent per trap certificate that shall be recovered as partial
16 compensation to the state for the enhanced access to its
17 natural resources. Final approval of such a rule shall be by
18 the Governor and Cabinet sitting as the Board of Trustees of
19 the Internal Improvement Trust Fund. In determining whether to
20 establish such a rent and, if so, the amount thereof, the
21 commission shall consider the amount of revenues annually
22 generated by certificate fees, transfer fees, surcharges, trap
23 license fees, and sales taxes, the demonstrated fair market
24 value of transferred certificates, and the continued economic
25 viability of the commercial lobster industry. The proceeds of
26 equitable rent recovered shall be deposited in the Marine
27 Resources Conservation Trust Fund and used by the commission
28 for research, management, and protection of the spiny lobster
29 fishery and habitat. A transfer fee may not be assessed or
30 required when the transfer is within a family as a result of
31 the death or disability of the certificate owner. A surcharge
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1 will not be assessed for any transfer within an individual's
2 immediate family.
3 2. No person, firm, corporation, or other business
4 entity may control, directly or indirectly, more than 1.5
5 percent of the total available certificates in any license
6 year.
7 3. The commission shall maintain records of all
8 certificates and their transfers and shall annually provide
9 each licenseholder with a statement of certificates held.
10 4. The number of trap tags issued annually to each
11 licenseholder shall not exceed the number of certificates held
12 by the licenseholder at the time of issuance, and such tags
13 and a statement of certificates held shall be issued
14 simultaneously.
15 5. Beginning July 1, 2003, and applicable to the
16 2003-2004 lobster season and thereafter, it is unlawful for
17 any person to lease lobster trap tags or certificates.
18 (c) Prohibitions; penalties.--
19 1. It is unlawful for a person to possess or use a
20 spiny lobster trap in or on state waters or adjacent federal
21 waters without having affixed thereto the trap tag required by
22 this section. It is unlawful for a person to possess or use
23 any other gear or device designed to attract and enclose or
24 otherwise aid in the taking of spiny lobster by trapping that
25 is not a trap as defined in rule 68B-24.006(2), Florida
26 Administrative Code.
27 2. It is unlawful for a person to possess or use spiny
28 lobster trap tags without having the necessary number of
29 certificates on record as required by this section.
30 3. It is unlawful for any person to remove the
31 contents of another harvester's trap without the express
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1 written consent of the trap owner available for immediate
2 inspection. Such unauthorized removal constitutes theft. Any
3 person convicted of theft from a trap shall, in addition to
4 the penalties specified in ss. 370.021 and 370.14 and the
5 provisions of this section, permanently lose all his or her
6 saltwater fishing privileges, including his or her saltwater
7 products license, crawfish endorsement, and all trap
8 certificates allotted to him or her through this program. In
9 such cases, trap certificates and endorsements are
10 nontransferable. In addition, any person, firm, or corporation
11 convicted of violating this paragraph shall also be assessed
12 an administrative penalty of up to $5,000. Immediately upon
13 receiving a citation for a violation involving theft from a
14 trap and until adjudicated for such a violation or, if
15 convicted of such a violation, the person, firm, or
16 corporation committing the violation is prohibited from
17 transferring any crawfish trap certificates and endorsements.
18 4. In addition to any other penalties provided in s.
19 370.021, a commercial harvester, as defined by rule
20 68B-24.002(1), Florida Administrative Code, who violates the
21 provisions of this section, or the provisions relating to
22 traps of chapter 68B-24, Florida Administrative Code, shall be
23 punished as follows:
24 a. If the first violation is for violation of
25 subparagraph 1. or subparagraph 2., the commission shall
26 assess an additional civil penalty of up to $1,000 and the
27 crawfish trap number issued pursuant to s. 370.14(2) or (6)
28 may be suspended for the remainder of the current license
29 year. For all other first violations, the commission shall
30 assess an additional civil penalty of up to $500.
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1 b. For a second violation of subparagraph 1. or
2 subparagraph 2. which occurs within 24 months of any previous
3 such violation, the commission shall assess an additional
4 civil penalty of up to $2,000 and the crawfish trap number
5 issued pursuant to s. 370.14(2) or (6) may be suspended for
6 the remainder of the current license year.
7 c. For a third or subsequent violation of subparagraph
8 1., subparagraph 2., or subparagraph 3. which occurs within 36
9 months of any previous two such violations, the commission
10 shall assess an additional civil penalty of up to $5,000 and
11 may suspend the crawfish trap number issued pursuant to s.
12 370.14(2) or (6) for a period of up to 24 months or may revoke
13 the crawfish trap number and, if revoking the crawfish trap
14 number, may also proceed against the licenseholder's saltwater
15 products license in accordance with the provisions of s.
16 370.021(2)(h)(i).
17 d. Any person assessed an additional civil penalty
18 pursuant to this section shall within 30 calendar days after
19 notification:
20 (I) Pay the civil penalty to the commission; or
21 (II) Request an administrative hearing pursuant to the
22 provisions of s. 120.60.
23 e. The commission shall suspend the crawfish trap
24 number issued pursuant to s. 370.14(2) or (6) for any person
25 failing to comply with the provisions of sub-subparagraph d.
26 5.a. It is unlawful for any person to make, alter,
27 forge, counterfeit, or reproduce a spiny lobster trap tag or
28 certificate.
29 b. It is unlawful for any person to knowingly have in
30 his or her possession a forged, counterfeit, or imitation
31 spiny lobster trap tag or certificate.
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1 c. It is unlawful for any person to barter, trade,
2 sell, supply, agree to supply, aid in supplying, or give away
3 a spiny lobster trap tag or certificate or to conspire to
4 barter, trade, sell, supply, aid in supplying, or give away a
5 spiny lobster trap tag or certificate unless such action is
6 duly authorized by the commission as provided in this chapter
7 or in the rules of the commission.
8 6.a. Any person who violates the provisions of
9 subparagraph 5., or any person who engages in the commercial
10 harvest, trapping, or possession of spiny lobster without a
11 crawfish trap number as required by s. 370.14(2) or (6) or
12 during any period while such crawfish trap number is under
13 suspension or revocation, commits a felony of the third
14 degree, punishable as provided in s. 775.082, s. 775.083, or
15 s. 775.084.
16 b. In addition to any penalty imposed pursuant to
17 sub-subparagraph a., the commission shall levy a fine of up to
18 twice the amount of the appropriate surcharge to be paid on
19 the fair market value of the transferred certificates, as
20 provided in subparagraph (a)1., on any person who violates the
21 provisions of sub-subparagraph 5.c.
22 7. Any certificates for which the annual certificate
23 fee is not paid for a period of 3 years shall be considered
24 abandoned and shall revert to the commission. During any
25 period of trap reduction, any certificates reverting to the
26 commission shall become permanently unavailable and be
27 considered in that amount to be reduced during the next
28 license-year period. Otherwise, any certificates that revert
29 to the commission are to be reallotted in such manner as
30 provided by the commission.
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1 8. The proceeds of all civil penalties collected
2 pursuant to subparagraph 4. and all fines collected pursuant
3 to sub-subparagraph 6.b. shall be deposited into the Marine
4 Resources Conservation Trust Fund.
5 9. All traps shall be removed from the water during
6 any period of suspension or revocation.
7 Section 8. Section 372.70, Florida Statutes, is
8 amended to read:
9 372.70 Prosecutions; state attorney to represent
10 state.--
11 (1) The prosecuting officers of the several courts of
12 criminal jurisdiction of this state shall investigate and
13 prosecute all violations of the laws relating to game,
14 freshwater fish, nongame birds, and fur-bearing animals which
15 may be brought to their attention by the Fish and Wildlife
16 Conservation commission or its conservation officers, or which
17 may otherwise come to their knowledge.
18 (2) The state attorney shall represent the state in
19 any forfeiture proceeding under this chapter. The Department
20 of Legal Affairs shall represent the state in all appeals from
21 judgments of forfeiture to the Supreme Court. The state may
22 appeal any judgment denying forfeiture in whole or in part
23 that may be otherwise adverse to the state.
24 Section 9. Section 372.9901, Florida Statutes, is
25 amended to read:
26 (Substantial rewording of section. See
27 s. 372.9901, F.S., for present text.)
28 372.9901 Seizure of illegal hunting devices;
29 disposition; notice; forfeiture.--In order to protect the
30 state's wildlife resources, any vehicle, vessel, animal, gun,
31 light, or other hunting device used or attempted to be used in
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1 connection with, as an instrumentality of, or in aiding and
2 abetting in the commission of an offense prohibited by s.
3 372.99 is subject to seizure and forfeiture. The provisions of
4 chapter 932 do not apply to any seizure or forfeiture under
5 this section. For purposes of this section, a conviction is
6 any disposition other than acquittal or dismissal.
7 (1)(a) Upon a first conviction of the person in whose
8 possession the property was found, the court having
9 jurisdiction over the criminal offense, notwithstanding any
10 jurisdictional limitations on the amount in controversy, may
11 make a finding that the property was used in connection with a
12 violation of s. 372.99. Upon such finding, the court may
13 order the property forfeited to the commission.
14 (b) Upon a second or subsequent conviction of a person
15 in whose possession the property was found for a violation of
16 s. 372.99, the court shall order the forfeiture to the
17 commission of any property used in connection with that
18 violation.
19 (2) The requirement for a conviction before forfeiture
20 establishes, to the exclusion of any reasonable doubt, that
21 the property was used in connection with that violation.
22 Prior to the issuance of a forfeiture order for any vessel,
23 vehicle, or other property under subsection (1), the
24 commission shall seize the property and notify the registered
25 owner, if any, that the property has been seized by the
26 commission.
27 (3) Notification of property seized under this section
28 must be sent by certified mail to a registered owner within 14
29 days after seizure. If the commission, after diligent
30 inquiry, cannot ascertain the registered owner, the notice
31 requirement is satisfied.
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1 (4)(a) For a first conviction of an offense under s.
2 372.99, property seized by the commission shall be returned to
3 the registered owner if the commission fails to prove by a
4 preponderance of the evidence before the court having
5 jurisdiction over the criminal offense that the registered
6 owner aided in, abetted in, participated in, gave consent to,
7 knew of, or had reason to know of the offense.
8 (b) Upon a second or subsequent conviction for an
9 offense under s. 372.99, the burden shall be on the registered
10 owner to prove by a preponderance of the evidence before the
11 court having jurisdiction over the criminal offense that the
12 registered owner in no way aided in, abetted in, participated
13 in, knew of, or had reason to know of the second offense which
14 resulted in seizure of the lawful property.
15 (c) Any request for a hearing from a registered owner
16 asserting innocence to recover property seized under these
17 provisions must be sent to the commission's Division of Law
18 Enforcement within 21 days after the registered owner's
19 receipt of the notice of seizure. If a request for a hearing
20 is not timely received, the court shall forfeit to the
21 commission the right to, title to, and interest in the
22 property seized, subject only to the rights and interests of
23 bona fide lienholders.
24 (5) All amounts received from the sale or other
25 disposition of the property shall be paid into the State Game
26 Trust Fund or into the commission's Federal Law Enforcement
27 Trust Fund as provided in s. 372.107, as applicable. If the
28 property is not sold or converted, it shall be delivered to
29 the executive director of the commission.
30
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1 Section 10. Section 372.31, Florida Statutes, is
2 renumbered as section 372.99021, Florida Statutes, and amended
3 to read:
4 372.99021 372.31 Disposition of illegal fishing
5 devices; exercise of police power.--
6 (1) In all cases of arrest and conviction for use of
7 illegal nets or traps or fishing devices, as provided in this
8 chapter, such illegal net, trap, or fishing device is declared
9 to be a nuisance and shall be seized and carried before the
10 court having jurisdiction of such offense and said court shall
11 order such illegal trap, net, or fishing device forfeited to
12 the Fish and Wildlife Conservation commission immediately
13 after trial and conviction of the person in whose possession
14 they were found. When any illegal net, trap, or fishing
15 device is found in the fresh waters of the state, and the
16 owner of same shall not be known to the officer finding the
17 same, such officer shall immediately procure from the county
18 court judge an order forfeiting said illegal net, trap, or
19 fishing device to the Fish and Wildlife Conservation
20 commission. The Fish and Wildlife Conservation commission may
21 destroy such illegal net, trap, or fishing device, if in its
22 judgment said net, trap, or fishing device is not of value in
23 the work of the department.
24 (2) When any nets, traps, or fishing devices are found
25 being used illegally as provided in this chapter, the same
26 shall be seized and forfeited to the Fish and Wildlife
27 Conservation commission as provided in this chapter.
28 (3) This section is necessary for the more efficient
29 and proper enforcement of the statutes and laws of this state
30 prohibiting the illegal use of nets, traps, or fishing devices
31 and is a lawful exercise of the police power of the state for
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1 the protection of the public welfare, health, and safety of
2 the people of the state. All the provisions of this section
3 shall be liberally construed for the accomplishment of these
4 purposes.
5 Section 11. Section 372.99022, Florida Statutes, is
6 created to read:
7 372.99022 Illegal molestation of or theft from
8 freshwater fishing gear.--
9 (1)(a) Any person, firm, or corporation that willfully
10 molests any authorized and lawfully permitted freshwater
11 fishing gear belonging to another without the express written
12 consent of the owner commits a felony of the third degree,
13 punishable as provided in s. 775.082, s. 775.083, or s.
14 775.084. Any written consent must be available for immediate
15 inspection.
16 (b) Any person, firm, or corporation that willfully
17 removes the contents of any authorized and lawfully permitted
18 freshwater fishing gear belonging to another without the
19 express written consent of the owner commits a felony of the
20 third degree, punishable as provided in s. 775.082, s.
21 775.083, or s. 775.084. Any written consent must be available
22 for immediate inspection.
23
24 A person, firm, or corporation that receives a citation for a
25 violation of this subsection is prohibited, immediately upon
26 receipt of such citation and until adjudicated or convicted of
27 a felony under this subsection, from transferring any
28 endorsements.
29 (2) Any person, firm, or corporation convicted
30 pursuant to subsection (1) of removing the contents of
31 freshwater fishing gear without the express written consent of
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1 the owner shall permanently lose all of his or her freshwater
2 and saltwater fishing privileges, including his or her
3 recreational and commercial licenses and endorsements, and
4 shall be assessed an administrative penalty of not more than
5 $5,000. The endorsements of such person, firm, or corporation
6 are not transferable.
7 (3) For purposes of this section, the term "freshwater
8 fishing gear" means haul seines, slat baskets, wire traps,
9 hoop nets, or pound nets, and includes the lines or buoys
10 attached thereto.
11 Section 12. Subsection (3) of section 372.9904,
12 Florida Statutes, is amended to read:
13 372.9904 Seizure of illegal transportation devices;
14 disposition; appraisal; forfeiture.--
15 (3) Upon conviction of the violator, the property, if
16 owned by the person convicted, shall be forfeited to the state
17 under the procedure set forth in ss. 370.061 and 370.07
18 372.312-372.318, when not inconsistent with this section. All
19 amounts received from the sale or other disposition of the
20 property shall be paid into the State Game Trust Fund or into
21 the commission's Federal Law Enforcement Trust Fund as
22 provided in s. 372.107, as applicable. If the property is not
23 sold or converted, it shall be delivered to the director of
24 the Fish and Wildlife Conservation Commission.
25 Section 13. Section 372.9905, Florida Statutes, is
26 amended to read:
27 372.9905 Applicability of ss. 372.99, 372.9901,
28 372.9903, and 372.9904.--The provisions of ss. 372.99,
29 372.9901, 372.9903, and 372.9904 relating to seizure and
30 forfeiture of animals or of vehicles, vessels, or other
31 transportation devices do shall not apply when such vehicles,
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1 vessels, or other transportation devices are owned by, or
2 titled in the name of, innocent parties. The provisions of
3 said sections shall not vitiate any valid lien, retain title
4 contract, or chattel mortgage on such animals or vehicles,
5 vessels, or other transportation devices if such lien, retain
6 title contract, or chattel mortgage is properly of public
7 record at the time of the seizure.
8 Section 14. Paragraph (b) of subsection (4) of section
9 323.001, Florida Statutes, is amended to read:
10 323.001 Wrecker operator storage facilities; vehicle
11 holds.--
12 (4) The requirements for a written hold apply when the
13 following conditions are present:
14 (b) The officer has probable cause to believe the
15 vehicle should be seized and forfeited under Chapter 370 or
16 Chapter 372 372.312;
17 Section 15. Sections 372.311, 372.312, 372.313,
18 372.314, 372.315, 372.316, 372.317, 372.318, 372.319, 372.321,
19 and 372.9902, Florida Statutes, are repealed.
20 Section 16. Subsection (2) of section 370.12, Florida
21 Statutes, is amended to read:
22 370.12 Marine animals; regulation.--
23 (2) PROTECTION OF MANATEES OR SEA COWS.--
24 (a) This subsection shall be known and may be cited as
25 the "Florida Manatee Sanctuary Act."
26 (b) The State of Florida is hereby declared to be a
27 refuge and sanctuary for the manatee, the "Florida state
28 marine mammal." The protections extended to and authorized on
29 behalf of the manatee by this act are independent of, and
30 therefore are not contingent upon, its status as a state or
31 federal listed species.
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1 (c) Whenever the Fish and Wildlife Conservation
2 Commission is satisfied that the interest of science will be
3 subserved, and that the application for a permit to possess a
4 manatee or sea cow (Trichechus manatus) is for a scientific or
5 propagational purpose and should be granted, and after
6 concurrence by the United States Department of the Interior,
7 the commission may grant to any person making such application
8 a special permit to possess a manatee or sea cow, which permit
9 shall specify the exact number which shall be maintained in
10 captivity.
11 (d) Except as may be authorized by the terms of a
12 valid state permit issued pursuant to paragraph (c) or by the
13 terms of a valid federal permit, it is unlawful for any person
14 at any time, by any means, or in any manner intentionally or
15 negligently to annoy, molest, harass, or disturb or attempt to
16 molest, harass, or disturb any manatee; injure or harm or
17 attempt to injure or harm any manatee; capture or collect or
18 attempt to capture or collect any manatee; pursue, hunt,
19 wound, or kill or attempt to pursue, hunt, wound, or kill any
20 manatee; or possess, literally or constructively, any manatee
21 or any part of any manatee.
22 (e) Any gun, net, trap, spear, harpoon, boat of any
23 kind, aircraft, automobile of any kind, other motorized
24 vehicle, chemical, explosive, electrical equipment, scuba or
25 other subaquatic gear, or other instrument, device, or
26 apparatus of any kind or description used in violation of any
27 provision of paragraph (d) may be forfeited upon conviction.
28 The foregoing provisions relating to seizure and forfeiture of
29 vehicles, vessels, equipment, or supplies do not apply when
30 such vehicles, vessels, equipment, or supplies are owned by,
31 or titled in the name of, innocent parties; and such
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1 provisions shall not vitiate any valid lien, retain title
2 contract, or chattel mortgage on such vehicles, vessels,
3 equipment, or supplies if such lien, retain title contract, or
4 chattel mortgage is property of public record at the time of
5 the seizure.
6 (f)1. Except for emergency rules adopted under s.
7 120.54, all proposed rules of the commission for which a
8 notice of intended agency action is filed proposing to govern
9 the speed and operation of motorboats for purposes of manatee
10 protection shall be submitted to the counties in which the
11 proposed rules will take effect for review by local rule
12 review committees.
13 2. No less than 60 days prior to filing a notice of
14 rule development in the Florida Administrative Weekly, as
15 provided in s. 120.54(3)(a), the commission shall notify the
16 counties for which a rule to regulate the speed and operation
17 of motorboats for the protection of manatees is proposed. A
18 county so notified shall establish a rule review committee or
19 several counties may combine rule review committees.
20 3. The county commission of each county in which a
21 rule to regulate the speed and operation of motorboats for the
22 protection of manatees is proposed shall designate a rule
23 review committee. The designated voting membership of the
24 rule review committee must be comprised of waterway users,
25 such as fishers, boaters, water skiers, other waterway users,
26 as compared to the number of manatee and other environmental
27 advocates. A county commission may designate an existing
28 advisory group as the rule review committee. With regard to
29 each committee, fifty percent of the voting members shall be
30 manatee advocates and other environmental advocates, and fifty
31 percent of the voting members shall be waterway users.
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1 4. The county shall invite other state, federal,
2 county, municipal, or local agency representatives to
3 participate as nonvoting members of the local rule review
4 committee.
5 5. The county shall provide logistical and
6 administrative staff support to the local rule review
7 committee and may request technical assistance from commission
8 staff.
9 6. Each local rule review committee shall elect a
10 chair and recording secretary from among its voting members.
11 7. Commission staff shall submit the proposed rule and
12 supporting data used to develop the rule to the local rule
13 review committees.
14 8. The local rule review committees shall have 60 days
15 from the date of receipt of the proposed rule to submit a
16 written report to commission members and staff. The local rule
17 review committees may use supporting data supplied by the
18 commission, as well as public testimony which may be collected
19 by the committee, to develop the written report. The report
20 may contain recommended changes to proposed manatee protection
21 zones or speed zones, including a recommendation that no rule
22 be adopted, if that is the decision of the committee.
23 9. Prior to filing a notice of proposed rulemaking in
24 the Florida Administrative Weekly as provided in s.
25 120.54(3)(a), the commission staff shall provide a written
26 response to the local rule review committee reports to the
27 appropriate counties, to the commission members, and to the
28 public upon request.
29 10. In conducting a review of the proposed manatee
30 protection rule, the local rule review committees may address
31 such factors as whether the best available scientific
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1 information supports the proposed rule, whether seasonal zones
2 are warranted, and such other factors as may be necessary to
3 balance manatee protection and public access to and use of the
4 waters being regulated under the proposed rule.
5 11. The written reports submitted by the local rule
6 review committees shall contain a majority opinion. If the
7 majority opinion is not unanimous, a minority opinion shall
8 also be included.
9 12. The members of the commission shall fully consider
10 any timely submitted written report submitted by a local rule
11 review committee prior to authorizing commission staff to move
12 forward with proposed rulemaking and shall fully consider any
13 timely submitted subsequent reports of the committee prior to
14 adoption of a final rule. The written reports of the local
15 rule review committees and the written responses of the
16 commission staff shall be part of the rulemaking record and
17 may be submitted as evidence regarding the committee's
18 recommendations in any proceeding relating to a rule proposed
19 or adopted pursuant to this subsection.
20 13. The commission is relieved of any obligations
21 regarding the local rule review committee process created in
22 this paragraph if a timely noticed county commission fails to
23 timely designate the required rule review committee.
24 (g)(f) In order to protect manatees or sea cows from
25 harmful collisions with motorboats or from harassment, the
26 Fish and Wildlife Conservation Commission is authorized, in
27 addition to all other authority, to provide a permitting
28 agency with comments shall adopt rules under chapter 120
29 regarding the expansion of existing, or the construction of
30 new, marine facilities and mooring or docking slips, by the
31 addition or construction of five or more powerboat slips. The
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1 commission shall adopt rules under chapter 120, and regulating
2 the operation and speed of motorboat traffic, only where
3 manatee sightings are frequent and the best available
4 scientific information, as well as other available, relevant,
5 and reliable information, which may include but is not limited
6 to, manatee surveys, observations, available studies of food
7 sources, and water depths, supports the conclusions that
8 manatees it can be generally assumed, based on available
9 scientific information, that they inhabit these areas on a
10 regular or continuous basis:
11 1. In Lee County: the entire Orange River, including
12 the Tice Florida Power and Light Corporation discharge canal
13 and adjoining waters of the Caloosahatchee River within 1 mile
14 of the confluence of the Orange and Caloosahatchee Rivers.
15 2. In Brevard County: those portions of the Indian
16 River within three-fourths of a mile of the Orlando Utilities
17 Commission Delespine power plant effluent and the Florida
18 Power and Light Frontenac power plant effluents.
19 3. In Indian River County: the discharge canals of the
20 Vero Beach Municipal Power Plant and connecting waters within
21 1 1/4 miles thereof.
22 4. In St. Lucie County: the discharge of the Henry D.
23 King Municipal Electric Station and connecting waters within 1
24 mile thereof.
25 5. In Palm Beach County: the discharges of the Florida
26 Power and Light Riviera Beach power plant and connecting
27 waters within 1 1/2 miles thereof.
28 6. In Broward County: the discharge canal of the
29 Florida Power and Light Port Everglades power plant and
30 connecting waters within 1 1/2 miles thereof and the
31 discharge canal of the Florida Power and Light Fort Lauderdale
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1 power plant and connecting waters within 2 miles thereof. For
2 purposes of ensuring the physical safety of boaters in a
3 sometimes turbulent area, the area from the easternmost edge
4 of the authorized navigation project of the intracoastal
5 waterway east through the Port Everglades Inlet is excluded
6 from this regulatory zone.
7 7. In Citrus County: headwaters of the Crystal River,
8 commonly referred to as King's Bay, and the Homosassa River.
9 8. In Volusia County: Blue Springs Run and connecting
10 waters of the St. Johns River within 1 mile of the confluence
11 of Blue Springs and the St. Johns River; and Thompson Creek,
12 Strickland Creek, Dodson Creek, and the Tomoka River.
13 9. In Hillsborough County: that portion of the Alafia
14 River from the main shipping channel in Tampa Bay to U.S.
15 Highway 41.
16 10. In Sarasota County: the Venice Inlet and
17 connecting waters within 1 mile thereof, including Lyons Bay,
18 Donna Bay, Roberts Bay, and Hatchett Creek, excluding the
19 waters of the intracoastal waterway and the right-of-way
20 bordering the centerline of the intracoastal waterway.
21 11. In Collier County: within the Port of Islands,
22 within section 9, township 52 south, range 28 east, and
23 certain unsurveyed lands, all east-west canals and the
24 north-south canals to the southerly extent of the intersecting
25 east-west canals which lie southerly of the centerline of U.S.
26 Highway 41.
27 12. In Manatee County: that portion of the Manatee
28 River east of the west line of section 17, range 19 east,
29 township 34 south; the Braden River south of the north line
30 and east of the west line of section 29, range 18 east,
31 township 34 south; Terra Ceia Bay and River, east of the west
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1 line of sections 26 and 35 of range 17 east, township 33
2 south, and east of the west line of section 2, range 17 east,
3 township 34 south; and Bishop Harbor east of the west line of
4 section 13, range 17 east, township 33 south.
5 13. In Miami-Dade County: those portions of Black
6 Creek lying south and east of the water control dam, including
7 all boat basins and connecting canals within 1 mile of the
8 dam.
9 (h)(g) The Fish and Wildlife Conservation Commission
10 shall adopt rules pursuant to chapter 120 regulating the
11 operation and speed of motorboat traffic only where manatee
12 sightings are frequent and the best available scientific
13 information, as well as other available, relevant, and
14 reliable information, which may include but is not limited to,
15 manatee surveys, observations, available studies of food
16 sources, and water depths, supports the conclusion that
17 manatees it can be generally assumed that they inhabit these
18 areas on a regular or continuous basis within that portion of
19 the Indian River between the St. Lucie Inlet in Martin County
20 and the Jupiter Inlet in Palm Beach County and. In addition,
21 the commission shall adopt rules pursuant to chapter 120
22 regulating the operation and speed of motorboat traffic only
23 where manatee sightings are frequent and it can be generally
24 assumed that they inhabit these areas on a regular or
25 continuous basis within the Loxahatchee River in Palm Beach
26 and Martin Counties, including the north and southwest forks
27 thereof. A limited lane or corridor providing for reasonable
28 motorboat speeds may be identified and designated within this
29 area.
30 (i)(h) The commission shall adopt rules pursuant to
31 chapter 120 regulating the operation and speed of motorboat
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1 traffic only where manatee sightings are frequent and the best
2 available scientific information, as well as other available,
3 relevant, and reliable information, which may include but is
4 not limited to, manatee surveys, observations, available
5 studies of food sources, and water depths, supports the
6 conclusion that manatees it can be generally assumed that they
7 inhabit these areas on a regular or continuous basis within
8 the Withlacoochee River and its tributaries in Citrus and Levy
9 Counties. The specific areas to be regulated include the
10 Withlacoochee River and the U.S. 19 bridge westward to a line
11 between U.S. Coast Guard markers number 33 and number 34 at
12 the mouth of the river, including all side channels and coves
13 along that portion of the river; Bennets' Creek from its
14 beginning to its confluence with the Withlacoochee River;
15 Bird's Creek from its beginning to its confluence with the
16 Withlacoochee River; and the two dredged canal systems on the
17 north side of the Withlacoochee River southwest of Yankeetown.
18 A limited lane or corridor providing for reasonable motorboat
19 speeds may be identified and designated within this area.
20 (j)(i) If any new power plant is constructed or other
21 source of warm water discharge is discovered within the state
22 which attracts a concentration of manatees or sea cows, the
23 Fish and Wildlife Conservation commission is directed to adopt
24 rules pursuant to chapter 120 regulating the operation and
25 speed of motorboat traffic within the area of such discharge.
26 Such rules shall designate a zone which is sufficient in size,
27 and which shall remain in effect for a sufficient period of
28 time, to protect the manatees or sea cows.
29 (k)(j) It is the intent of the Legislature through
30 adoption of this paragraph to allow the Fish and Wildlife
31 Conservation Commission to post and regulate boat speeds only
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1 where the best available scientific information, as well as
2 other available, relevant, and reliable information, which may
3 include but is not limited to, manatee surveys, observations,
4 available studies of food sources, and water depth, supports
5 the conclusion that manatees manatee sightings are frequent
6 and it can be generally assumed that they inhabit these areas
7 on a periodic regular or continuous basis. It is not the
8 intent of the Legislature to permit the commission to post and
9 regulate boat speeds generally throughout the waters of the
10 state in the above-described inlets, bays, rivers, creeks,
11 thereby unduly interfering with the rights of fishers,
12 boaters, and water skiers using the areas for recreational and
13 commercial purposes. The Legislature further intends that the
14 commission may identify and designate limited lanes or
15 corridors providing for reasonable motorboat speeds within
16 waters of the state whenever such lanes and corridors are
17 consistent with manatee protection may be identified and
18 designated within these areas.
19 (l)(k) The commission shall adopt rules pursuant to
20 chapter 120 regulating the operation and speed of motorboat
21 traffic all year around within Turkey Creek and its
22 tributaries and within Manatee Cove in Brevard County. The
23 specific areas to be regulated consist of:
24 1. A body of water which starts at Melbourne-Tillman
25 Drainage District structure MS-1, section 35, township 28
26 south, range 37 east, running east to include all natural
27 waters and tributaries of Turkey Creek, section 26, township
28 28 south, range 37 east, to the confluence of Turkey Creek and
29 the Indian River, section 24, township 28 south, range 37
30 east, including all lagoon waters of the Indian River bordered
31 on the west by Palm Bay Point, the north by Castaway Point,
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1 the east by the four immediate spoil islands, and the south by
2 Cape Malabar, thence northward along the shoreline of the
3 Indian River to Palm Bay Point.
4 2. A triangle-shaped body of water forming a cove
5 (commonly referred to as Manatee Cove) on the east side of the
6 Banana River, with northern boundaries beginning and running
7 parallel to the east-west cement bulkhead located 870 feet
8 south of SR 520 Relief Bridge in Cocoa Beach and with western
9 boundaries running in line with the City of Cocoa Beach
10 channel markers 121 and 127 and all waters east of these
11 boundaries in section 34, township 24 south, range 37 east;
12 the center coordinates of this cove are 28°20'14" north,
13 80°35'17" west.
14 (m)(l) The commission shall promulgate regulations
15 pursuant to chapter 120 relating to the operation and speed of
16 motor boat traffic in port waters with due regard to the
17 safety requirements of such traffic and the navigational
18 hazards related to the movement of commercial vessels.
19 (n)(m) The commission may designate by rule adopted
20 pursuant to chapter 120 other portions of state waters where
21 manatees are frequently sighted and the best available
22 scientific information, as well as other available, relevant,
23 and reliable information, which may include but is not limited
24 to, manatee surveys, observations, available studies of food
25 sources, and water depths, supports the conclusion that it can
26 be assumed that manatees inhabit such waters periodically or
27 continuously. Upon designation of such waters, the commission
28 shall adopt rules pursuant to chapter 120 to regulate
29 motorboat speed and operation which are necessary to protect
30 manatees from harmful collisions with motorboats and from
31 harassment. The commission may adopt rules pursuant to chapter
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1 120 to protect manatee habitat, such as seagrass beds, within
2 such waters from destruction by boats or other human activity.
3 Such rules shall not protect noxious aquatic plants subject to
4 control under s. 369.20.
5 (o)(n) The commission may designate, by rule adopted
6 pursuant to chapter 120, limited areas as a safe haven for
7 manatees to rest, feed, reproduce, give birth, or nurse
8 undisturbed by human activity. Access by motor boat to private
9 residences, boat houses, and boat docks through these areas by
10 residents, and their authorized guests, who must cross one of
11 these areas to have water access to their property is
12 permitted when the motorboat is operated at idle speed, no
13 wake.
14 (p)(o) Except in the marked navigation channel of the
15 Florida Intracoastal Waterway as defined in s. 327.02 and the
16 area within 100 feet of such channel, a local government may
17 regulate, by ordinance, motorboat speed and operation on
18 waters within its jurisdiction where the best available
19 scientific information, as well as other available, relevant,
20 and reliable information, which may include but is not limited
21 to, manatee surveys, observations, available studies of food
22 sources, and water depths, supports the conclusion that
23 manatees inhabit these areas on a regular basis where manatees
24 are frequently sighted and can be generally assumed to inhabit
25 periodically or continuously. However, such an ordinance may
26 not take effect until it has been reviewed and approved by the
27 commission. If the commission and a local government disagree
28 on the provisions of an ordinance, a local manatee protection
29 committee must be formed to review the technical data of the
30 commission and the United States Fish and Wildlife Service,
31
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1 and to resolve conflicts regarding the ordinance. The manatee
2 protection committee must be comprised of:
3 1. A representative of the commission;
4 2. A representative of the county;
5 3. A representative of the United States Fish and
6 Wildlife Service;
7 4. A representative of a local marine-related
8 business;
9 5. A representative of the Save the Manatee Club;
10 6. A local fisher;
11 7. An affected property owner; and
12 8. A representative of the Florida Marine Patrol.
13
14 If local and state regulations are established for the same
15 area, the more restrictive regulation shall prevail.
16 (q)(p) The commission shall evaluate the need for use
17 of fenders to prevent crushing of manatees between vessels
18 (100' or larger) and bulkheads or wharves in counties where
19 manatees have been crushed by such vessels. For areas in
20 counties where evidence indicates that manatees have been
21 crushed between vessels and bulkheads or wharves, the
22 commission shall:
23 1. Adopt rules pursuant to chapter 120 requiring use
24 of fenders for construction of future bulkheads or wharves;
25 and
26 2. Implement a plan and time schedule to require
27 retrofitting of existing bulkheads or wharves consistent with
28 port bulkhead or wharf repair or replacement schedules.
29
30 The fenders shall provide sufficient standoff from the
31 bulkhead or wharf under maximum operational compression to
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CS/HB 1243, Second Engrossed
1 ensure that manatees cannot be crushed between the vessel and
2 the bulkhead or wharf.
3 (r)(q) Any violation of a restricted area established
4 by this subsection, or established by rule pursuant to chapter
5 120 or ordinance pursuant to this subsection, shall be
6 considered a violation of the boating laws of this state and
7 shall be charged on a uniform boating citation as provided in
8 s. 327.74, except as otherwise provided in paragraph (s). Any
9 person who refuses to post a bond or accept and sign a uniform
10 boating citation shall, as provided in s. 327.73(3), be guilty
11 of a misdemeanor of the second degree, punishable as provided
12 in s. 775.082 or s. 775.083.
13 (s)(r) Except as otherwise provided in this paragraph,
14 any person violating the provisions of this subsection or any
15 rule or ordinance adopted pursuant to this subsection shall be
16 guilty of a misdemeanor, punishable as provided in s.
17 370.021(1)(a) or (b).
18 1. Any person operating a vessel in excess of a posted
19 speed limit shall be guilty of a civil infraction, punishable
20 as provided in s. 327.73, except as provided in subparagraph
21 2.
22 2. This paragraph does not apply to persons violating
23 restrictions governing "No Entry" zones or "Motorboat
24 Prohibited" zones, who, if convicted, shall be guilty of a
25 misdemeanor, punishable as provided in s. 370.021(1)(a) or
26 (b), or, if such violation demonstrates blatant or willful
27 action, may be found guilty of harassment as described in
28 paragraph (d).
29 (t) 1. In order to protect manatees and manatee
30 habitat, the counties identified in the Governor and Cabinet's
31 October 1989 Policy Directive shall develop manatee protection
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CS/HB 1243, Second Engrossed
1 plans consistent with commission criteria based upon "Schedule
2 K" of the directive, and shall submit such protection plans
3 for review and approval by the commission. Any manatee
4 protection plans not submitted by July 1, 2004 and any plans
5 not subsequently approved by the commission shall be addressed
6 pursuant to subparagraph 2.
7 2. No later than January 1, 2005, the Fish and
8 Wildlife Conservation Commission shall designate any county it
9 has identified as a substantial risk county for manatee
10 mortality as a county that must complete a manatee protection
11 plan by July 1, 2006. The commission is authorized to adopt
12 rules pursuant to s. 120.54 for identifying substantial risk
13 counties and establishing criteria for approval of manatee
14 protection plans for counties so identified. Manatee
15 protection plans shall include the following elements at a
16 minimum: education about manatees and manatee habitat; boater
17 education; an assessment of the need for new or revised
18 manatee protection speed zones; local law enforcement; and a
19 boat facility siting plan to address expansion of existing and
20 the development of new marinas, boat ramps, and other
21 multislip boating facilities.
22 3. Counties required to adopt manatee protection plans
23 under this paragraph shall incorporate the boating facility
24 siting element of those protection plans within their
25 respective comprehensive plans.
26 4. Counties that have already adopted approved manatee
27 protection plans, or that adopt subsequently approved manatee
28 protection plans by the effective date of this act, are in
29 compliance with the provisions of this paragraph so long as
30 they incorporate their approved Boat Facility Siting Plan into
31
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1 the appropriate element of their local Comprehensive Plan no
2 later than July 1, 2003.
3 Section 17. Subsection (6) is added to section
4 372.072, Florida Statutes, to read:
5 372.072 Endangered and Threatened Species Act.--
6 (6) MEASURABLE BIOLOGICAL GOALS.--No later than
7 February 15, 2003, the commission, working in conjunction with
8 the United States Fish and Wildlife Service, shall develop
9 measurable biological goals that define manatee recovery.
10 These measurable biological goals shall be used by the
11 commission in its development of management plans or work
12 plans. In addition to other criteria, these measurable
13 biological goals shall be used by the commission when
14 evaluating existing and proposed protection rules, and in
15 determining progress in achieving manatee recovery.
16 Section 18. Subsection (2) of section 327.41, Florida
17 Statutes, is amended to read:
18 327.41 Uniform waterway regulatory markers.--
19 (2) Any county or municipality which has been granted
20 a restricted area designation, pursuant to s. 327.46, for a
21 portion of the Florida Intracoastal Waterway within its
22 jurisdiction or which has adopted a restricted area by
23 ordinance pursuant to s. 327.22, s. 327.60, or s. 370.12(2)(p)
24 s. 370.12(2)(o), or any other governmental entity which has
25 legally established a restricted area, may apply to the
26 commission for permission to place regulatory markers within
27 the restricted area.
28 Section 19. It is the intent of the Legislature that
29 the commission request the necessary funding and staffing
30 through a general revenue budget request to ensure that
31 manatees receive the maximum protection possible. The
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1 Legislature recognizes that strong manatee protection depends
2 upon consistently achieving a high degree of compliance with
3 existing and future rules. The commission shall conduct
4 standardized studies to determine levels of public compliance
5 with manatee protection rules, and shall use the results of
6 the studies, together with other relevant information, to
7 develop and implement strategic law enforcement initiatives
8 and boater education plans. Drawing upon information obtained
9 from the compliance studies and the implementation of
10 enforcement initiatives together with boater education plans,
11 the commission shall identify any impediments in consistently
12 achieving high levels of compliance, and adjust their
13 enforcement and boater education efforts accordingly.
14 Section 20. The Legislature intends that the
15 provisions of this act may not be retroactively applied to
16 manatee protection rules existing or in the process of being
17 adopted on the effective date of this act unless the Fish and
18 Wildlife Conservation Commission proposes to amend or revise
19 such rules after this act takes effect. Proposed rules that
20 are currently subject to an administrative challenge pending
21 as of February 12, 2002, are not subject to the provisions of
22 this act unless a court or administrative hearing officer
23 finds such proposed rule to be invalid and all appeals have
24 been exhausted. Once such rules become final, any revisions or
25 amendments of such rules shall be conducted pursuant to the
26 provisions of this act.
27 Section 21. This act shall take effect July 1, 2002.
28
29
30
31
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