1999 Florida Code
TITLE XXVIII NATURAL RESOURCES; CONSERVATION, RECLAMATION, AND USE
Chapter 370 Saltwater Fisheries  
370.16   Oysters and shellfish; regulation.

1370.16  Oysters and shellfish; regulation.--

(1)  LEASE, APPLICATION FORM; NOTICE TO RIPARIAN OWNER; LANDS LEASED TO BE COMPACT.--When any qualified person desires to lease a part of the bottom or bed of any of the water of this state, for the purpose of growing oysters or clams, as provided for in this section, he or she shall present to the Department of Environmental Protection a written application setting forth the name and address of the applicant, a reasonably definite description of the location and amount of land covered by water desired, and shall pray that the application be filed; that the water bottoms be surveyed and a plat or map of the survey thereof be made if no plat or map of such bottoms should have been so made thereto; and that the water bottoms described be leased to the applicant under the provisions of this section. Such applicant shall accompany with his or her written application a sufficient sum to defray the estimated expenses of the survey; thereupon the department shall file such application and shall direct the same surveyed and platted forthwith at the expense of the applicant. When applications are made by two or more persons for the same lands, they shall be leased to the applicant who first filed application for same; but to all applications for leases of any of the bottoms of said waters owned under the riparian acts of the laws of Florida, heretofore enacted, notice of such application shall be given the riparian owner, when known, and, when not known, notice of such application shall be given by publication for 4 weeks in some newspaper published in the county in which the water bottoms lie; and when there is no newspaper published in such county, then by posting the notice for 4 weeks at the courthouse door of the county, and preference shall be given to the riparian owners under the terms and conditions herein created, when the riparian owner makes application for such water bottoms for the purpose of planting oysters or clams before the same are leased to another. The lands leased shall be as compact as possible, taking into consideration the shape of the body of water and the condition of the bottom as to hardness, or soft mud or sand, or other conditions which would render the bottoms desirable or undesirable for the purpose of oyster or clam cultivation.

(2)  SURVEYS, PLATS, AND MAPS OF REEFS.--The Department of Environmental Protection shall accept, adopt, and use official reports, surveys, and maps of oyster, clam, or other shellfish grounds made under the direction of any authority of the United States as prima facie evidence of the natural oyster and clam reefs, for the purpose and intent of this chapter. The department may also make surveys of any natural oyster or clam reefs when it deems such surveys necessary and where such surveys are made pursuant to an application for a lease, the cost thereof may be charged to the applicant as a part of the cost of his or her application.

(3)  EXECUTION OF LEASES; LESSEE TO STAKE OFF BOUNDARIES; PENALTY FOR FAILURE TO COMPLY WITH REGULATIONS.--As soon as the survey has been made and the plat or map thereof filed with the Department of Environmental Protection and the cost thereof paid by the applicant, the department may execute in duplicate a lease of the water bottoms to the applicant. One duplicate, with a plat or map of the water bottoms so leased, shall be delivered to the applicant, and the other, with a plat or map of the bottom so leased, shall be retained by the department and registered in a lease book which shall be kept exclusively for that purpose by the department; thereafter the lessees shall enjoy the exclusive use of the lands and all oysters and clams, shell, and cultch grown or placed thereon shall be the exclusive property of such lessee as long as he or she shall comply with the provisions of this chapter. The department shall require the lessee to stake off and mark the water bottoms leased, by such ranges, monuments, stakes, buoys, etc., so placed and made as not to interfere with the navigation, as it may deem necessary to locate the same to the end that the location and limits of the lands embraced in such lease be easily and accurately found and fixed, and such lessee shall keep the same in good condition during the open and closed oyster or clam season. All leases shall be marked according to the standards derived from the uniform waterway markers for safety and navigation as described in s. 327.40. The department may stipulate in each individual lease contract the types, shape, depth, size, and height of marker or corner posts. Failure on the part of the lessee to comply with the orders of the department to this effect within the time fixed by it, and to keep the markers, etc., in good condition during the open and closed oyster or clam season, shall subject such lessee to a fine not exceeding $100 for each and every such offense. All lessees shall cause the area of the leased water bottoms and the names of the lessees to be shown by signs as may be determined by the department, if so required.

2(4)  LEASES IN PERPETUITY; RENT; STIPULATIONS; TAXES; CULTIVATION, ETC.--

(a)  All leases made under the provisions of this chapter shall begin on the day executed and continue in perpetuity under such restrictions as shall herein be stated. The rent for the first 10 years shall be $5 per acre, or any fraction of an acre, per year. The actual rate charged for all leases shall consist of the minimum rate of $15 per acre, or any fraction of an acre, per year and shall be adjusted on January 1, 1995, and every 5 years thereafter, based upon the 5-year average change in the Consumer Price Index. However, the rent for any lease currently in effect shall not be increased during the first 10 years of said lease. This rent shall be paid in advance at the time of signing the lease up to January 1 following, and annually thereafter in advance on or before January 1, whether the lease be held by the original lessee or by an heir, assignee, or transferee.

(b)  A surcharge of $5 per acre, or any fraction of an acre, per annum shall be levied upon each lease, other than a perpetual lease granted pursuant to this subsection, and deposited into the Marine Resources Conservation Trust Fund. The surcharge shall be levied until the balance of receipts from the surcharge equals or exceeds $30,000. For the fiscal year immediately following the year in which the balance of receipts from the surcharge equals or exceeds $30,000, no surcharge shall be levied unless the balance from receipts from the surcharge is less than or equal to $20,000. For the fiscal year immediately following the year in which the balance of receipts from the surcharge is less than or equal to $20,000, the surcharge shall be and shall remain $5 per acre, or any fraction of an acre, per annum until the balance of receipts from the surcharge again is equal to or exceeds $30,000. The purpose of the surcharge is to provide a mechanism to have financial resources immediately available for cleanup and rehabilitation of abandoned or vacated lease sites. The department is authorized to adopt rules necessary to carry out the provisions of this subsection.

(c)  Moneys in the fund that are not needed currently for cleanup and rehabilitation of abandoned or vacated lease sites shall be deposited with the Treasurer to the credit of the fund and may be invested in such manner as is provided for by statute. Interest received on such investment shall be credited to the fund.

(d)  Funds from receipts from the surcharge within the Marine Resources Conservation Trust Fund from the surcharge established by paragraph (b) shall be disbursed for the following purposes and no others:

1.  Administrative expenses, personnel expenses, and equipment costs of the department related to cleanup and rehabilitation of abandoned or vacated aquaculture lease sites and enforcement of provisions of subsections (1)-(13).

2.  All costs involved in the cleanup and rehabilitation of abandoned or vacated lease sites.

3.  All costs and damages which are the proximate results of lease abandonment or vacation.

4.  The department shall recover to the use of the fund from the person or persons abandoning or vacating the lease, jointly and severally, all sums owed or expended from the fund. Requests for reimbursement to the fund for the above costs, if not paid within 30 days of demand, shall be turned over to the Department of Legal Affairs for collection.

(e)  Effective cultivation shall consist of the growing of the oysters or clams in a density suitable for commercial harvesting over the amount of bottom prescribed by law. This commercial density shall be accomplished by the planting of seed oysters, shell, and cultch of various descriptions. The Division of Marine Resources may stipulate in each individual lease contract the types, shape, depth, size, and height of cultch materials on lease bottoms according to the individual shape, depth, location, and type of bottom of the proposed lease. Each tenant leasing from the state water bottoms under the provisions of this section shall have begun, within 1 year from the date of such lease, bona fide cultivation of the same, and shall, by the end of the second year from the commencement of his or her lease, have placed under cultivation at least one-fourth of the water bottom leased and shall each year thereafter place in cultivation at least one-fourth of the water bottom leased until the whole, suitable for bedding of oysters or clams, shall have been put in cultivation by the planting thereon of not less than 200 barrels of oysters, shell, or its equivalent in cultch to the acre. When leases are granted, or when grants have heretofore been made under existing laws for the planting of oysters or clams, such lessee or grantee is authorized to plant the leased or granted bottoms both in oysters and clams.

(f)  These stipulations will apply to all leases granted after the passing of this section. All leases existing prior to the passing of this section will operate under the law which was in effect when the leases were granted.

(g)  When evidence is gathered by the department and such evidence conclusively shows a lack of effective cultivation, the department may revoke leases and return the bottoms in question to the public domain.

(h)  The department has the authority to adopt rules and regulations pertaining to the water column over shellfish leases. All cultch materials in place 6 months after the formal adoption and publication of rules and regulations establishing standards for cultch materials on shellfish leases which do not comply with such rules and regulations may be declared a nuisance by the department. The department shall have the authority to direct the lessee to remove such cultch in violation of this section. The department may cancel a lease upon the refusal by the lessee violating such rules and regulations to remove unlawful cultch materials, and all improvements, cultch, marketable oysters, and shell shall become the property of the state. The department shall have the authority to retain, dispose of, or remove such materials in the best interest of the state.

(5)  INCREASE OF RENTALS AFTER 10 YEARS.--After 10 years from the execution of the lease, the rentals shall be increased to a minimum of $1 per acre per annum. The department shall assess rental value on the leased water bottoms, taking into consideration their value as oyster-growing or clam-growing water bottoms, their nearness to factories, transportation, and other conditions adding value thereto and placing such valuation upon them in shape of annual rental to be paid thereunder as said condition shall warrant.

(6)  LEASES TRANSFERABLE, ETC.--The leases shall be inheritable and transferable, in whole or in part, and shall also be subject to mortgage, pledge, or hypothecation and shall be subject to seizure and sale for debts as any other property, rights, and credits in this state, and this provision shall also apply to all buildings, betterments, and improvements thereon. Leases granted under this section cannot be transferred, by sale or barter, in whole or in part, without the written, express acquiescence of the Department of Environmental Protection, and such a transferee shall pay a $50 transfer fee before department acquiescence may be given. No lease or part of a lease may be transferred by sale or barter until the lease has been in existence at least 2 years and has been cultivated according to the statutory standards found in paragraph (4)(e), except as otherwise provided by regulation adopted by the department. No such inheritance or transfer shall be valid or of any force or effect whatever unless evidenced by an authentic act, judgment, or proper judicial deed, registered in the office of the department in a book to be provided for said purpose. The department shall keep proper indexes so that all original leases and all subsequent changes and transfers can be easily and accurately ascertained.

(7)  PAYMENT OF RENT; FORFEITURE FOR NONPAYMENT; NOTICE, ETC.--All leases shall stipulate for the payment of the annual rent in advance on or before January 1 of each year, and the further stipulation that the failure of the tenant to pay the rent punctually on or before that day, or within 30 days thereafter shall ipso facto, and upon demand, terminate and cancel said lease and forfeit to the state all the works, improvements, betterments, oysters, and clams on the leased water bottoms, and authorize the Department of Environmental Protection to at once enter on said water bottom and take possession thereof, and such water bottom shall then be open for lease as herein provided; and the department shall within 10 days thereafter enter such termination, cancellation, and forfeiture on its books and shall give such public notice thereof, and of the fact that the water bottoms are open to lease, as it shall deem proper; provided, that the department may, in its discretion, waive such termination, cancellation, and forfeiture when the rent due, with 10 percent additional, and all costs and expenses growing out of such failure to pay, be tendered to it within 60 days after the same became due; provided, that in all cases of cancellation of lease, the department shall, after 60 days' notice by publication in some newspaper published in the state, having a general statewide circulation, which notice shall contain a full description of the leased waters and beds and any parts thereof, sell such lease to the highest and best bidder; and all moneys received over and above the rents due to the state, under the terms of the lease and provisions herein, and costs and expenses growing out of such failure to pay, shall be paid to the lessee forfeiting his or her rights therein. No leased water bottoms shall be forfeited for nonpayment of rent under the provisions of this section, unless there shall previously have been mailed by the said department to the last known address of such tenant according to the books of said department, 30 days' notice of the maturity of such lease. Whenever any leased water bottoms are forfeited for nonpayment of rent, and there is a plat or survey thereof in the archives of the department, when such bedding grounds are re-leased, no new survey thereof shall be made, but the original stakes, monuments, and bounds shall be preserved, and the new lease shall be based upon the original survey. This subsection shall also apply to all costs and expenses taxed against a lessee by the department under this section.

(8)  CANCELLATION OF LEASES TO NATURAL REEFS.--Any person, within 6 months from and after the execution of any lease to water bottoms, may file a petition with the Department of Environmental Protection for the purpose of determining whether a natural oyster or clam reef having an area of not less than 100 square yards existed within the leased area on the date of the lease, with sufficient natural or maternal oysters or clams thereon (not including coon oysters) to have constituted a stratum sufficient to have been resorted to by the public generally for the purpose of gathering the same to sell for a livelihood. The petition shall be in writing addressed to the Department of Environmental Protection, verified under oath, stating the location and approximate area of the natural reef and the claim or interest of the petitioner therein and requesting the cancellation of the lease to the said natural reef. No petition may be considered unless it is accompanied by a deposit of $10 to defray the expense of examining into the matter. The petition may include several contemporaneous natural reefs of oysters or clams. Upon receipt of such petition, the department shall cause an investigation to be made into the truth of the allegations of the petition, and, if found untrue, the $10 deposit shall be retained by the department to defray the expense of the investigation, but should the allegations of the petition be found true and the leased premises to contain a natural oyster or clam reef, as above described, the said $10 shall be returned to the petitioner and the costs and expenses of the investigation taxed against the lessee and the lease canceled to the extent of the natural reef and the same shall be marked with buoys and stakes and notices placed thereon showing the same to be a public reef, the cost of the markers and notices to be taxed against the lessee.

(9)  WHEN NATURAL REEFS MAY BE INCLUDED IN LEASE.--When an application for oyster or clam bedding grounds is filed and upon survey of such bedding ground, it should develop that the area applied for contains natural oyster or clam reefs or beds less in size than 100 square yards, or oyster or clam reefs or bars of greater size, but not of sufficient quantity to constitute a stratum, and it should further be made to appear to the Department of Environmental Protection by the affidavit of the applicant, together with such other proof as the department may require, that the natural reef, bed, or bar could not be excluded, and the territory applied for properly protected or policed, the department may, if it deems it for the best interest of the state and the oyster industry so to do, permit the including of such natural reefs, beds, or bars; and it shall fix a reasonable value on the same, to be paid by the applicant for such bedding ground; provided, that no such natural reefs shall be included in any lease hereafter granted to the bottom or bed of waters of this state contiguous to Franklin County. There shall be no future oyster leases issued in Franklin County except for purposes of oyster aquaculture activities approved under ss. 253.67-253.75. However, such aquaculture leases shall be for an area not larger than 1 acre and shall not be transferred or subleased. Only the flexible belt system or off-bottom methods may be used for aquaculture on these lease areas, and no cultch materials shall be placed on the bottom of the lease areas. Under no circumstances shall mechanical dredging devices be used to harvest oysters on such lease areas. Oyster aquaculture leases issued in Franklin County shall be issued only to Florida residents.

(10)  SETTLEMENT OF BOUNDARY DISPUTES; REVIEW.--The Department of Environmental Protection shall determine and settle all disputes as to boundaries between lessees of bedding grounds. The department shall, in all cases, be the judge as to whether any particular bottom is or is not a natural reef or whether it is suitable for bedding oysters or clams.

(11)  TRESPASS ON LEASED BEDS; GATHERING OYSTERS AND CLAMS BETWEEN SUNSET AND SUNRISE FROM NATURAL REEFS, ETC.--Any person who willfully takes oysters, shells, cultch, or clams bedded or planted by a licensee under this chapter, or grantee under the provisions of heretofore existing laws, or riparian owner who may have heretofore planted the same on his or her riparian bottoms, or any oysters or clams deposited by anyone making up a cargo for market, or who willfully carries or attempts to carry away the same without permission of the owner thereof, or who willfully or knowingly removes, breaks off, destroys, or otherwise injures or alters any stakes, bounds, monuments, buoys, notices, or other designations of any natural oyster or clam reefs or beds or private bedding or propagating grounds, or who willfully injures, destroys, or removes any other protection around any oyster or clam beds, or who willfully moves any bedding ground stakes, buoys, marks, or designations, placed by the department, or who gathers oysters or clams between sunset and sunrise from the natural reefs or from private bedding grounds, is guilty of a violation of this section.

(12)  PROTECTION OF OYSTER AND CLAM REEFS AND SHELLFISH.--

(a)  The Department of Environmental Protection shall improve, enlarge, and protect the natural oyster and clam reefs of this state to the extent it may deem advisable and the means at its disposal will permit.

(b)  The Fish and Wildlife Conservation Commission shall, to the same extent, assist in protecting shellfish aquaculture products produced on leased or granted reefs in the hands of lessees or grantees from the state. Harvesting shellfish is prohibited within a distance of 25 feet outside lawfully marked lease boundaries or within setback and access corridors within specifically designated high-density aquaculture lease areas and aquaculture use zones.

(c)  The department, in cooperation with the commission, shall provide the Legislature with recommendations as needed for the development and the proper protection of the rights of the state and private holders therein with respect to the oyster and clam business.

(13)  STAKING OFF WATER BOTTOMS OR BEDDING OYSTERS WITHOUT OBTAINING LEASE.--Any person staking off the water bottoms of this state, or bedding oysters on the bottoms of the waters of this state, without previously leasing same as required by law shall be guilty of a violation of this section, and shall acquire no rights by reason of such staking off. This provision does not apply to grants heretofore made under the provisions of any heretofore existing laws or to artificial beds made heretofore by a riparian owner or his or her grantees on the owner's riparian bottoms.

(14)  SHELLFISH HARVESTING SEASONS; DAYS: SPECIAL PROVISIONS RELATING TO APALACHICOLA BAY.--

(a)  The Fish and Wildlife Conservation Commission shall consider setting the shellfish harvesting seasons in the Apalachicola Bay as follows:

1.  The open season shall be from October 1 to July 31 of each year.

2.  The entire bay, including private leased or granted grounds, shall be closed to shellfish harvesting from August 1 to September 30 of each year for the purpose of oyster relaying and transplanting and shell planting.

(b)  If the commission changes the harvesting seasons by rule as set forth in this subsection, for 3 years after the rule takes effect, the commission shall monitor the impacts of the new harvesting schedule on the bay and on local shellfish harvesters to determine whether the new harvesting schedule should be discontinued, retained, or modified. In monitoring the new schedule and in preparing its report, the commission shall consider the following:

1.  Whether the bay benefits ecologically from being closed to shellfish harvesting from August 1 to September 30 of each year.

2.  Whether the new harvesting schedule enhances the enforcement of shellfish harvesting laws in the bay.

3.  Whether the new harvesting schedule enhances natural shellfish production, oyster relay and planting programs, and shell planting programs in the bay.

4.  Whether the new harvesting schedule has more than a short-term adverse economic impact, if any, on local shellfish harvesters.

(c)  The Fish and Wildlife Conservation Commission by rule shall consider restricting harvesting on shellfish grants or leases to the same days of the week as harvesting on public beds.

(15)  REMOVING OYSTERS, CLAMS, OR MUSSELS FROM NATURAL REEFS; LICENSES, ETC., PENALTY.--

(a)  It is unlawful to use a dredge or any means or implement other than hand tongs in removing oysters from the natural or artificial state reefs. This restriction shall apply to all areas of the Apalachicola Bay for all shellfish harvesting, excluding private grounds leased or granted by the state prior to July 1, 1989, if the lease or grant specifically authorizes the use of implements other than hand tongs for harvesting. Except in the Apalachicola Bay, upon the payment of $25 annually, for each vessel or boat using a dredge or machinery in the gathering of clams or mussels, a special activity license may be issued by the Fish and Wildlife Conservation Commission pursuant to s. 370.06 for such use to such person.

(b)  Special activity licenses issued to harvest shellfish by dredge or other mechanical means from privately held shellfish leases or grants in Apalachicola Bay shall include, but not be limited to, the following conditions:

1.  The use of any mechanical harvesting device other than ordinary hand tongs for taking shellfish for any purpose from public shellfish beds in Apalachicola Bay shall be unlawful.

2.  The possession of any mechanical harvesting device on the waters of Apalachicola Bay from 5 p.m. until sunrise shall be unlawful.

3.  Leaseholders or grantees shall telephonically notify the Fish and Wildlife Conservation Commission no less than 48 hours prior to each day's use of a dredge or scrape in order to arrange for a commission officer to be present on the lease or grant area while a dredge or scrape is used on the lease or grant. Under no circumstances may a dredge or scrape be used without a commission officer present.

4.  Only two dredges or scrapes per lease or grant may be possessed or operated at any time.

5.  Each vessel used for the transport or deployment of a dredge or scrape shall prominently display the lease or grant number or numbers, in numerals which are at least 12 inches high and 6 inches wide, in such a manner that the lease or grant number or numbers are readily identifiable from both the air and the water. The commission shall apply other statutes, rules, or conditions necessary to protect the environment and natural resources from improper transport, deployment, and operation of a dredge or scrape. Any violation of this paragraph or of any other statutes, rules, or conditions referenced in the special activity license shall be considered a violation of the license and shall result in revocation of the license and forfeiture of the bond submitted to the commission as a prerequisite to the issuance of this license.

(c)  Oysters may be harvested from natural or public or private leased or granted grounds by common hand tongs or by hand, by scuba diving, free diving, leaning from vessels, or wading. In the Apalachicola Bay, this provision shall apply to all shellfish.

(16)  FISHING FOR RELAYING OR TRANSPLANTING PURPOSES.--

(a)  Designation of areas for the taking of oysters and clams to be planted on leases, grants, and public areas is to be made by qualified personnel of the Fish and Wildlife Conservation Commission. Oysters, clams, and mussels may be taken for relaying or transplanting at any time during the year so long as, in the opinion of the commission, the public health will not be endangered. The amount of oysters, clams, and mussels to be obtained for relaying or transplanting, the area relayed or transplanted to, and relaying or transplanting time periods will be established in each case by the commission.

(b)  Application for a special activity license issued pursuant to s. 370.06 for obtaining oysters, clams, or mussels for relaying from closed shellfish harvesting areas to shellfish or aquaculture leases in open areas or certified controlled purification plants or transplanting sublegal-sized oysters, clams, or mussels to shellfish aquaculture leases for growout or cultivation purposes must be made to the commission. In return, the commission may assign an area and a period of time for the oysters, clams, or mussels to be relayed or transplanted to be taken. All relaying and transplanting operations shall take place under the surveillance of the commission.

(c)  Relayed oysters, clams, or mussels shall not be subsequently harvested for any reason without written permission or public notice from the commission, if oysters, clams, or mussels were relayed from areas not approved by the commission as shellfish harvesting areas.

(17)  LICENSES; OYSTER, CLAM, AND MUSSEL CANNERIES.--Every person as a condition precedent to the operation of any oyster, clam, or mussel canning factory in this state shall obtain a license pursuant to s. 370.071 and pay a license fee of $50.

(18)  FALSE RETURNS AS TO OYSTERS OR CLAMS HANDLED.--Each packer, canner, corporation, firm, commission person, or dealer in fish shall, on the first day of each month, make a return under oath to the Fish and Wildlife Conservation Commission, as to the number of oysters, clams, and shellfish purchased, caught, or handled during the preceding month. Whoever is found guilty of making any false affidavit to any such report is guilty of perjury and punished as provided by law, and any person who fails to make such report shall be punished by a fine not exceeding $500 or by imprisonment in the county jail not exceeding 6 months.

(19)  DEPOSIT OF SHELLFISH LEASE RENTAL FEES.--Rental fees for shellfish leases issued under this section shall be deposited into the Marine Resources Conservation Trust Fund and used for shellfish-related aquaculture activities, including research, lease compliance inspections, mapping, and siting.

(20)  WATER PATROL FOR COLLECTION OF TAX.--

(a)  The Fish and Wildlife Conservation Commission may establish and maintain necessary patrols of the salt waters of Florida, with authority to use such force as may be necessary to capture any vessel or person violating the provisions of the laws relating to oysters and clams, and may establish ports of entry at convenient locations where the severance or privilege tax levied on oysters and clams may be collected or paid and may make such rules and regulations as it may deem necessary for the enforcement of such tax.

(b)  Each person in any way dealing in shellfish shall keep a record, on blanks or forms prescribed by the commission, of all oysters, clams, and shellfish taken, purchased, used, or handled by him or her, with the name of the persons from whom purchased, if purchased, together with the quantity and the date taken or purchased, and shall exhibit this account at all times when requested so to do by the commission or any conservation agent; and he or she shall, on the first day of each month, make a return under oath to the commission as to the number of oysters, clams, and shellfish purchased, caught, or handled during the preceding month. The commission may require detailed returns whenever it deems them necessary.

(21)  SEIZURE OF VESSELS AND CARGOES VIOLATING OYSTER AND CLAM LAWS, ETC.--Vessels, with their cargoes, violating the provisions of the laws relating to oysters and clams may be seized by anyone duly and lawfully authorized to make arrests under this section or by any sheriff or the sheriff's deputies, and taken into custody, and when not arrested by the sheriff or the sheriff's deputies, delivered to the sheriff of the county in which the seizure is made, and shall be liable to forfeiture, on appropriate proceedings being instituted by the Fish and Wildlife Conservation Commission, before the courts of that county. In such case the cargo shall at once be disposed of by the sheriff, for account of whom it may concern. Should the master or any of the crew of said vessel be found guilty of using dredges or other instruments in fishing oysters on natural reefs contrary to law, or fishing on the natural oyster or clam reefs out of season, or unlawfully taking oysters or clams belonging to a lessee, such vessel shall be declared forfeited by the court, and ordered sold and the proceeds of the sale shall be deposited with the Treasurer to the credit of the General Revenue Fund; any person guilty of such violations shall not be permitted to have any license provided for in this chapter within a period of 1 year from the date of conviction. Pending proceedings such vessel may be released upon the owner furnishing bond, with good and solvent security in double the value of the vessel, conditioned upon its being returned in good condition to the sheriff to abide the judgment of the court.

(22)  OYSTER AND CLAM REHABILITATION.--The board of county commissioners of the several counties may appropriate and expend such sums as it may deem proper for the purpose of planting or transplanting oysters, clams, oyster shell, clam shell, or cultch or to perform such other acts for the enhancement of the oyster and clam industries of the state, out of any sum in the county treasury not otherwise appropriated.

(23)  DREDGING OF DEAD SHELLS PROHIBITED.--The dredging of dead shell deposits is prohibited in the state.

(24)  COOPERATION WITH UNITED STATES FISH AND WILDLIFE SERVICE.--The Fish and Wildlife Conservation Commission shall cooperate with the United States Fish and Wildlife Service, under existing federal laws, rules, and regulations, and is authorized to accept donations, grants, and matching funds from the Federal Government in order to carry out its oyster resource and development responsibilities. The commission is further authorized to accept any and all donations including funds, oysters, or oyster shells.

(25)  OYSTER AND CLAM SHELLS PROPERTY OF DEPARTMENT.--

(a)  Except for oysters used directly in the half-shell trade, 50 percent of all shells from oysters and clams shucked commercially in the state shall be and remain the property of the Department of Environmental Protection when such shells are needed and required for rehabilitation projects and planting operations, in cooperation with the Fish and Wildlife Conservation Commission, when sufficient resources and facilities exist for handling and planting said shell, and when the collection and handling of such shell is practical and useful, except that bona fide holders of leases and grants may retain 75 percent of such shell as they produce for planting purposes by obtaining a special activity license from the commission pursuant to s. 370.06. Storage, transportation, and planting of shells so retained by lessees and grantees shall be carried out under the surveillance of agents of the Fish and Wildlife Conservation Commission and be subject to such reasonable time limits as the department may fix. In the event of an accumulation of an excess of shells, the department is authorized to sell shells only to private growers for use in oyster or clam cultivation on bona fide leases and grants. No profit shall accrue to the department in these transactions, and shells are to be sold for the estimated moneys spent by the department to gather and stockpile the shells. Planting of shells obtained from the department by purchase shall be subject to the surveillance of the Fish and Wildlife Conservation Commission if the department chooses to exercise its right of supervision. Any shells not claimed and used by private oyster cultivators 10 years after shells are gathered and stockpiled may be sold at auction to the highest bidder for any private use.

(b)  Whenever the department determines that it is unfeasible to collect oyster or clam shells, the shells become the property of the producer.

(c)  Whenever oyster or clam shells are owned by the department and it is not useful or feasible to use them in the rehabilitation projects, and when no leaseholder has exercised his or her option to acquire them, the department may sell such shells for the highest price obtainable. The shells thus sold may be used in any manner and for any purpose at the discretion of the purchaser.

(d)  Moneys derived from the sale of shell shall be deposited in the Land Acquisition Trust Fund for shellfish programs.

(e)  The department shall annually publish notice, in a newspaper serving the county, of its intention to collect the oyster and clam shells and shall notify, by certified mail, each shucking establishment from which shells are to be collected. The notice shall contain the period of time the department intends to collect the shells in that county and the collection purpose.

(26)  OYSTER CULTURE.--The Fish and Wildlife Conservation Commission shall protect all oyster beds, oyster grounds, and oyster reefs from damage or destruction resulting from improper cultivation, propagation, planting, or harvesting and control the pollution of the waters over or surrounding oyster grounds, beds, or reefs, and to this end the Department of Health is authorized and directed to lend its cooperation to the commission, to make available to it its laboratory testing facilities and apparatus. The commission may also do and perform all acts and things within its power and authority necessary to the performance of its duties.

(27)  HEALTH PERMITS.--

(a)  Any person engaged in harvesting, handling, or processing oysters for commercial use shall be required to obtain a health permit from the county health department or from a private physician.

(b)  No person shall be employed or remain employed in a certified oyster house without the possession of the required health permit.

(c)  For the purpose of this subsection, "commercial use" shall be a quantity of more than 4 bushels, or more than 2 gallons, of shucked oysters, per person or per boat, or any number or quantity of oysters if the oysters are to be sold.

(28)  REQUIREMENTS FOR OYSTER VESSELS.--

(a)  All vessels used for the harvesting, gathering, or transporting of oysters for commercial use shall be constructed and maintained to prevent contamination or deterioration of oysters. To this end, all such vessels shall be provided with false bottoms and bulkheads fore and aft to prevent oysters from coming in contact with any bilge water. No dogs or other animals shall be allowed at any time on vessels used to harvest or transport oysters. A violation of any provision of this subsection shall result in at least the revocation of the violator's license.

(b)  For the purpose of this subsection, "commercial use" shall be a quantity of more than 4 bushels, or more than 2 gallons, of shucked oysters, per person or per boat, or any number or quantity of oysters if the oysters are to be sold.

History.--s. 2, ch. 28145, 1953; s. 1, ch. 57-256; s. 1, ch. 57-163; s. 1, ch. 59-346; s. 1, ch. 59-490; s. 1, ch. 61-99; s. 2, ch. 61-58; s. 3, ch. 61-22; s. 2, ch. 61-119; s. 1, ch. 61-100; s. 19, ch. 63-512; ss. 1, 2, ch. 63-120; s. 1, ch. 63-396; s. 3, ch. 65-140; s. 1, ch. 65-436; s. 1, ch. 67-234; ss. 19, 25, 35, ch. 69-106; s. 298, ch. 71-136; s. 1, ch. 71-244; s. 1, ch. 71-245; s. 1, ch. 71-246; s. 129, ch. 71-377; s. 1, ch. 72-204; s. 1, ch. 72-236; s. 102, ch. 73-333; s. 1, ch. 75-120; s. 1, ch. 76-106; s. 1, ch. 77-92; s. 111, ch. 77-104; s. 52, ch. 77-147; s. 1, ch. 77-197; s. 1, ch. 77-206; s. 23, ch. 78-95; s. 1, ch. 78-96; s. 33, ch. 79-65; s. 1, ch. 79-111; ss. 1, 2, ch. 80-52; s. 1, ch. 82-46; s. 1, ch. 82-408; s. 6, ch. 83-134; s. 27, ch. 83-216; s. 2, ch. 83-265; s. 2, ch. 84-121; s. 15, ch. 84-254; ss. 14, 17, ch. 85-234; s. 5, ch. 86-219; ss. 16, 19, ch. 86-240; ss. 7, 12, ch. 89-98; s. 3, ch. 89-116; ss. 19, 26, 42, ch. 89-175; s. 16, ch. 91-78; ss. 4, 5, ch. 91-187; ss. 5, 6, ch. 91-254; s. 5, ch. 91-286; s. 234, ch. 94-356; s. 92, ch. 95-143; s. 997, ch. 95-148; s. 37, ch. 96-321; s. 13, ch. 98-333; s. 64, ch. 99-8; s. 60, ch. 99-245.

1Note.--Section 6, ch. 83-134, as amended by s. 2, ch. 84-121; by s. 5, ch. 86-219; and by s. 19, ch. 86-240, repealed then-existing subsections (14)-(16) and (38), effective July 1, 1984, and further provided that if the Governor and Cabinet had not adopted appropriate rules by July 1, 1984, they would remain in force until such rules were effective. Section 9, ch. 83-134, provided that, prior to the adoption of rules amending, readopting, or repealing those provisions set forth in s. 6, the Marine Fisheries Commission would hold a public hearing thereon, and no such amendment, readoption, or repeal would be acted upon until it had been determined, based upon appropriate findings of fact, that such action would not adversely affect the resource. The Marine Fisheries Commission was transferred to the Fish and Wildlife Conservation Commission by s. 3, ch. 99-245.

2Note.--Section 10(2), ch. 99-245, provides that: "Except where otherwise specified in law, all revenues derived from the sale of permits and licenses pursuant to chapter 370, Florida Statutes, and all federal funds received by the State of Florida as a match to the aforementioned state revenues, and revenues received pursuant to s. 327.25 [transferred to s. 328.72 by s. 25, ch. 99-289] and s. 380.0558 (4) and (5), Florida Statutes, are to be appropriated by the Legislature to the Fish and Wildlife Conservation Commission, to be used for the purposes specified in law, except for the following:

"(2)  Revenues derived from the imposition of the Apalachicola Bay Oyster Harvesting License authorized in s. 370.06(5) and lease fees authorized in s. 370.16(4), Florida Statutes, 1998 Supplement, and revenues received pursuant to ss. 253.69(4) and 253.71(2), Florida Statutes, which shall be appropriated to the General Inspection Trust Fund of the Department of Agriculture and Consumer Services."