Childers v. Department of Environmental Protection, No. 96-4182

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BENTON
• Citation: 696 So.2d 962
• Parties: 22 Fla. L. Weekly D1814 Charles M. CHILDERS, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, f/k/a Department of Natural Resources, Appellee.
• Docket Number: No. 96-4182
• Decision Date: 16 July 1997

Page 962

696 So.2d 962 22 Fla. L. Weekly D1814 Charles M. CHILDERS, Appellant,
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, f/k/a Department of Natural Resources, Appellee. No. 96-4182. District Court of Appeal of Florida,
First District. July 16, 1997.

Page 963

Barbara Sanders, Apalachicola, for Appellant.

Andrew J. Baumann and M.B. Adelson, IV, Assistant General Counsel of the Department of Environmental Protection, Tallahassee, for Appellee.

BENTON, Judge.

Here as below, Charles Childers maintains that the Department of Environmental Protection (DEP) acted beyond its statutory authority in ordering his saltwater products license suspended for ninety days. He contends that section 370.092(8)(b), Florida Statutes (1995), on which DEP relied, does not authorize suspension in the absence of a criminal conviction. We agree and reverse, without reaching appellant's double jeopardy argument.

On September 29, 1995, Mr. Childers was cited for deploying a shrimp net containing in excess of 500 square feet of mesh area, and for using three nets simultaneously, all within three miles of shore, in violation of article X, section 16 of the Florida Constitution, ¹ and Marine Fisheries Commission Emergency Rule 46ER95-1. ² On February 9, 1996, after a non-jury trial, the circuit court found him guilty, but withheld adjudication of guilt, in keeping with Florida Rule of Criminal Procedure 3.670 and section 948.01(2), Florida Statutes (1995).

In a certified letter to Mr. Childers dated July 5, 1996, DEP referred to an attached notice (which is not in the record) and stated:

Please be advised that, upon receipt of this letter, your 1996/1997 Saltwater Products License (SP-70928) is hereby[ ³] suspended for a period of 90 days....

This suspension is based upon your failure to comply with Saltwater Fisheries statutes for a conviction of a violation of Section 16, Article X of the State Constitution.

On July 11, 1996, Mr. Childers requested a hearing. After a hearing on August 23, 1996, DEP entered a suspension order on September 30, 1996.

At issue now, on appeal of the suspension order, is the proper construction of section 370.092(8)(b), Florida Statutes (1995), which before its recent amendment read as follows:

Page 964

(b) In addition to being subject to the other penalties provided in this chapter, any violation of s. 16, Art. X of the State Constitution or any rules of the Marine Fisheries Commission which implement the gear prohibitions and restrictions specified therein shall be considered a major violation; and any person, firm, or corporation convicted of such violation shall be subject to the following additional penalties:

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

(Emphasis supplied.) The order under review sets forth the agency's assertion that appellant was properly deemed criminally convicted, even though the court with jurisdiction to convict withheld adjudication:

In the context of 370.092(8)(b), Florida Statutes, the word "conviction" was selected by the Legislature to indicate a judicial determination of sanctionable behavior, not necessarily the final resolution of any and all criminal proceedings.

....

Where the court withholds adjudication of guilt, there exists sufficient and uncontested evidence on the record of that criminal proceeding to support the Department's determination that the Petitioner has been "convicted" for purposes of this subsequent administrative action against Petitioner's Saltwater Products License.

Effective January 1, 1997, the Legislature amended the statute, ch. 96-300, § 2, at 1311-1312, Laws of Fla., by substituting for the word "convicted," the phrase "receiving any judicial disposition other than acquittal or dismissal," to create section 370.092(4)(a), Florida Statutes (Supp.1996).

The version of a statute in effect at the time grounds for disciplinary action arise controls. See Willner v. Department of Prof'l Regulation, Bd. of Med., 563 So.2d 805 (Fla. 1st DCA 1990)(holding statutory amendment after violation took place did not authorize larger fine); Department of Transp. v. James, 403 So.2d 1066 (Fla. 4th DCA 1981)(holding statute enacted subsequent to conduct for which a career service employee was disciplined could not authorize consequences graver than those contemplated by the statute in effect at the time of the dereliction). Statutes stating new grounds for administrative fines, see St. John's Village I v. Department of State, Div. of Corps., 497 So.2d 990 (Fla. 5th DCA 1986), or for license revocation or suspension should not be given retroactive effect. ⁴ See Muldrow v. Department of Bus. and Prof'l Regulation, 641 So.2d 508 (Fla. 1st DCA 1994); Middlebrooks v. Department of State, Div. of Licensing, 565 So.2d 727 (Fla. 1st DCA 1990); Hector v. Department of Prof'l Regulation, Fla. Real Estate Comm'n, 504 So.2d 469 (Fla. 1st DCA 1987); Lewis v. Criminal Justice Standards and Training Comm'n, 462 So.2d 528 (Fla. 1st DCA 1985); Nechtman v. Saker, 271 So.2d 26 (Fla. 3d DCA 1972). DEP does not contend otherwise here.

Citing Florida Cable Television Association v. Deason, 635 So.2d 14 (Fla.1994), DEP argues that its interpretation of statutes it administers is entitled to great deference. See also Morris v. Division of Retirement, 696 So.2d 380 (Fla. 1st DCA 1997). But

statutes authorizing the revocation of a license to practice a business or...