1997 Florida Code
TITLE XXVIII NATURAL RESOURCES; CONSERVATION, RECLAMATION, AND USE
Chapter 370 Saltwater Fisheries  
370.021   Administration; rules, publications, records; penalty for violation of chapter; injunctions.

370.021  Administration; rules, publications, records; penalty for violation of chapter; injunctions.--

(1)  RULES AND REGULATIONS.--The Department of Environmental Protection shall make, adopt, promulgate, amend, and repeal all rules and regulations necessary or convenient for the carrying out of the duties, obligations, powers, and responsibilities conferred on the department or any of its divisions. The director of each division shall submit to the department suggested rules and regulations for that division. Any person violating or otherwise failing to comply with any of the rules and regulations adopted as aforesaid is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, unless otherwise provided by law.

(2)  PENALTY FOR VIOLATION.--Unless otherwise provided by law, any person, firm, or corporation who is convicted for violating any provision of this chapter, any rule of the department adopted pursuant to this chapter, or any rule of the Marine Fisheries Commission, shall be punished:

(a)  Upon a first conviction, by imprisonment for a period of not more than 60 days or by a fine of not less than $100 nor more than $500, or by both such fine and imprisonment.

(b)  On a second or subsequent conviction within 12 months, by imprisonment for not more than 6 months or by a fine of not less than $250 nor more than $1,000, or by both such fine and imprisonment.

(c)  In addition to the penalties provided in paragraphs (a) and (b), the court shall assess additional penalties against any person, firm, or corporation convicted of major violations as follows:

1.  For a violation involving more than 100 illegal blue crabs, crawfish, or stone crabs, an additional penalty of $10 for each illegal blue crab, crawfish, stone crab, or part thereof.

2.  For a violation involving the taking or harvesting of shrimp from a nursery or other prohibited area, an additional penalty of $10 for each pound of illegal shrimp or part thereof.

3.  For a violation involving the taking or harvesting of oysters from nonapproved areas or the taking or possession of unculled oysters, an additional penalty of $10 for each bushel of illegal oysters.

4.  For a violation involving the taking or harvesting of clams from nonapproved areas, an additional penalty of $100 for each 500 count bag of illegal clams.

5.  For a violation involving the taking, harvesting, or possession of any of the following species, which are endangered, threatened, or of special concern:

a.  Shortnose sturgeon (Acipenser brevirostrum);

b.  Atlantic sturgeon (Acipenser oxyrhynchus);

c.  Common snook (Centropomus undecimalis);

d.  Atlantic loggerhead turtle (Caretta caretta caretta);

e.  Atlantic green turtle (Chelonia mydas mydas);

f.  Leatherback turtle (Dermochelys coriacea);

g.  Atlantic hawksbill turtle (Eretmochelys imbricata imbracata);

h.  Atlantic ridley turtle (Lepidochelys kempi); or

i.  West Indian manatee (Trichechus manatus latirostris),

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

6.  For a second or subsequent conviction within 24 months for any violation of the same law or rule involving the taking or harvesting of more than 100 pounds of any finfish, an additional penalty of $5 for each pound of illegal finfish.

7.  For any violation involving the taking, harvesting, or possession of more than 1,000 pounds of any illegal finfish, an additional penalty equivalent to the wholesale value of the illegal finfish.

8.

a.  In addition to being subject to the other penalties provided in this chapter, any intentional violation of rule 46-4.007(1), Florida Administrative Code, shall be considered a major violation, and any person, firm, or corporation committing such violation shall be subject to the following additional penalties:

(I)  For a first violation within a 7-year period, suspension of the saltwater products license for 90 days.

(II)  For a second major violation within a 7-year period, a civil penalty of $5,000 and suspension of the saltwater products license for 12 months.

(III)  For a third or subsequent major violation within a 7-year period, a civil penalty of $5,000, lifetime revocation of the saltwater products license, and forfeiture of all gear and equipment used in the violation.

b.  During any period of license suspension or revocation under this section, the licensee may not fish from any vessel that is harvesting saltwater products.

c.  The Department of Environmental Protection may bring a civil action to enforce the civil penalties prescribed in this section.

Notwithstanding the provisions of s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any major violation prescribed in this paragraph.

(d)  The proceeds from the penalties assessed pursuant to paragraph (c) shall be deposited into the Marine Resources Conservation Trust Fund to be used for marine fisheries research.

(e)  Permits issued to any person, firm, or corporation by the department to take or harvest saltwater products, or any license issued pursuant to s. 370.06 or s. 370.07 may be suspended or revoked by the department, pursuant to the provisions and procedures of s. 120.60, for any major violation prescribed in paragraph (c):

1.  Upon a second conviction for a violation which occurs within 12 months after a prior violation, for up to 60 days.

2.  Upon a third conviction for a violation which occurs within 24 months after a prior violation, for up to 180 days.

3.  Upon a fourth conviction for a violation which occurs within 36 months after a prior violation, for a period of 6 months to 3 years.

(f)

1.  In cases involving the intentional or unintentional killing of any species of tarpon, snook in excess of five fish per person, sailfish, or bonefish during a fishing operation wherein the targeted species is legal to harvest, the method of fishing and type of gear used are legal, and the fish are killed as a direct result of such otherwise legal fishing operations, the department shall assess a civil penalty of $100 for each snook killed in excess of five fish per person, or tarpon, sailfish, or bonefish killed in excess of any bag limit. In collecting penalties, the department shall assess an equal share of the applicable penalty to each fisher actually involved in the fishing operation.

2.  The civil penalty shall be paid in full to the department within 30 calendar days of official notification. The department may suspend the saltwater products license or other saltwater fishing license of any person or boat not paying the required civil penalty within the specified time period. Persons contesting the assessment of any civil penalties or any license suspension pursuant to this section shall be entitled to a hearing pursuant to the provisions of chapter 120.

3.  All moneys collected by the department pursuant to this paragraph shall be deposited into the Marine Resources Conservation Trust Fund.

(3)  RULES; ADMISSIBILITY AS EVIDENCE.--Rules and regulations shall be admitted as evidence in the courts of the state when accompanied by an affidavit from the secretary of the department certifying that the rule or regulation has been lawfully adopted, promulgated, and published; and such affidavit shall be prima facie evidence of proper adoption, promulgation, and publication of the rule or regulation.

(4)  PUBLICATIONS BY DEPARTMENT.--The department through the 1Division of Administration is given authority, from time to time in its discretion, to cause the statutory laws under its jurisdiction, together with any rules and regulations promulgated by it, to be published in pamphlet form for free distribution in this state. The department is authorized to make charges for technical and educational publications and mimeographed material of use for educational or reference purposes. Such charges shall be made at the discretion of the 1Division of Administration. Such charges may be sufficient to cover cost of preparation, printing, publishing, and distribution. All moneys received for publications shall be deposited into the fund from which the cost of the publication was paid. The department is further authorized to enter into agreements with persons, firms, corporations, governmental agencies, and other institutions whereby publications may be exchanged reciprocally in lieu of payments for said publications.

(5)  POWERS OF OFFICERS.--

(a)  The department may designate such employees of the several divisions, as it may deem necessary in its discretion, as law enforcement officers, who shall meet the provisions of s. 943.13(1)-(10) and have the powers and duties conferred in this subsection, except that such employees shall comply with the provisions of chapter 943. Such officers and the Director of the Division of Law Enforcement, are constituted law enforcement officers of this state with full power to investigate and arrest for any violation of the laws of this state and the rules and regulations of the department under their jurisdiction and for violations of chapter 253 and the rules and regulations promulgated thereunder. The general laws applicable to arrests by peace officers of this state shall also be applicable to such law enforcement officers. Such law enforcement officers may enter upon any land or waters of the state for performance of their lawful duties and may take with them any necessary equipment, and such entry will not constitute a trespass. It is lawful for any boat, motor vehicle, or aircraft owned or chartered by the department or its agents or employees to land on and depart from any of the beaches or waters of the state. Such law enforcement officers have the authority, without warrant, to board, inspect, and search any boat, fishing appliance, storage or processing plant, fishhouse, spongehouse, oysterhouse, or other warehouse, building, or vehicle engaged in transporting or storing any fish or fishery products. Such authority to search and inspect without a search warrant is limited to those cases in which such law enforcement officers have reason to believe that fish or any saltwater products are taken or kept for sale, barter, transportation, or other purposes in violation of laws or rules promulgated under this law. Any such law enforcement officer may at any time seize or take possession of any saltwater products or contraband which have been unlawfully caught, taken, or processed or which are unlawfully possessed or transported in violation of any of the laws of this state or any rule or regulation of the department. Such law enforcement officers may arrest any person in the act of violating any of the provisions of this law, the rules or regulations of the department, the provisions of chapter 253 and the rules and regulations promulgated thereunder, or any of the laws of this state. It is hereby declared unlawful for any person to resist such arrest or in any manner interfere, either by abetting or assisting such resistance or otherwise interfering, with any such law enforcement officer while engaged in the performance of the duties imposed upon him or her by law or regulation of the department.

(b)  The Legislature finds that the checking and inspection of saltwater products aboard vessels is critical to good fishery management and conservation and that, because almost all saltwater products are either iced or cooled in closed areas or containers, the enforcement of seasons, size limits, and bag limits can only be effective when inspection of saltwater products so stored is immediate and routine. Therefore, in addition to the authority granted in paragraph (a), a law enforcement officer of the department who has probable cause to believe that the vessel has been used for fishing prior to the inspection shall have full authority to open and inspect all containers or areas where saltwater products are normally kept aboard vessels while such vessels are on the water, such as refrigerated or iced locations, coolers, fish boxes, and bait wells, but specifically excluding such containers that are located in sleeping or living areas of the vessel.

(6)  DUTIES OF DEPARTMENT OF LEGAL AFFAIRS.--The Department of Legal Affairs shall attend to the legal business of the Department of Environmental Protection and its divisions; but, if at any time any question of law or any litigation arises and the Department of Legal Affairs is otherwise occupied and cannot give the time and attention necessary to such question of law or litigation as the occasion demands, the several state attorneys shall attend to any such question of law or litigation arising within their respective circuits; and, if such state attorney is otherwise occupied and cannot give the time and attention necessary to such question of law or litigation as the case may demand, the Department of Environmental Protection may employ additional counsel for that particular cause, with the advice and consent of the Department of Legal Affairs. Such additional counsel's fees shall be paid from the moneys appropriated to the Department of Environmental Protection.

(7)  RETENTION, DESTRUCTION, AND REPRODUCTION OF RECORDS.--Records and documents of the Department of Environmental Protection created in compliance with and in the implementation of this chapter or former chapter 371 shall be retained by the department as specified in record retention schedules established under the general provisions of chapters 119 and 257. Further, the department is authorized to:

(a)  Destroy, or otherwise dispose of, those records and documents in conformity with the approved retention schedules.

(b)  Photograph, microphotograph, or reproduce such records and documents on film, as authorized and directed by the approved retention schedules, whereby each page will be exposed in exact conformity with the original records and documents retained in compliance with the provisions of this section. Photographs or microphotographs in the form of film or print of any records, made in compliance with the provisions of this section, shall have the same force and effect as the originals thereof would have and shall be treated as originals for the purpose of their admissibility in evidence. Duly certified or authenticated reproductions of such photographs or microphotographs shall be admitted in evidence equally with the original photographs or microphotographs. The impression of the seal of the Department of Environmental Protection on a certificate made pursuant to the provisions hereof and signed by the Secretary of Environmental Protection shall entitle the same to be received in evidence in all courts and in all proceedings in this state and shall be prima facie evidence of all factual matters set forth in the certificate. A certificate may relate to one or more records, as set forth in the certificate, or in a schedule continued on an attachment to the certificate.

(c)  Furnish certified copies of such records for a fee of $1 which shall be deposited in the Marine Resources Conservation Trust Fund.

(8)  COURTS OF EQUITY MAY ENJOIN.--Courts of equity in this state have jurisdiction to enforce the conservation laws of this state by injunction.

(9)  BOND OF EMPLOYEES.--The department may require, as it determines, that bond be given by any employee of the department or divisions thereof, payable to the Governor of the state and the Governor's successor in office, for the use and benefit of those whom it may concern, in such penal sums with good and sufficient surety or sureties approved by the department conditioned for the faithful performance of the duties of such employee.

(10)  REVOCATION OF LICENSES.--Any person licensed under this chapter who has been convicted of taking aquaculture species raised at a certified facility shall have his or her license revoked for 5 years by the Department of Environmental Protection pursuant to the provisions and procedures of s. 120.60.

History.--s. 2, ch. 61-231; s. 1, ch. 61-22; ss. 11, 25, 35, ch. 69-106; s. 1, ch. 70-378; s. 1, ch. 70-439; s. 277, ch. 71-136; s. 1, ch. 75-180; s. 23, ch. 78-95; s. 31, ch. 79-65; s. 1, ch. 80-356; s. 220, ch. 81-259; s. 30, ch. 84-258; s. 2, ch. 85-234; s. 1, ch. 86-132; s. 5, ch. 87-116; s. 5, ch. 88-412; s. 11, ch. 90-310; s. 86, ch. 91-221; ss. 197, 481, ch. 94-356; s. 980, ch. 95-148; s. 8, ch. 95-150; s. 9, ch. 95-414; s. 10, ch. 96-247; s. 22, ch. 96-321; s. 57, ch. 97-100.

1Note.--The reference appears to be to the Division of Administration of the former Department of Natural Resources, see s. 20.25(2)(a), Florida Statutes 1991. The successor Department of Environmental Protection has a Division of Administration and Technical Services, see s. 20.255(6)(a).