Office of the Attorney General Pam Bondi


CAUTION: The following is a slip opinion which may or may not reflect the exact contents of the opinion in its final published form. The original file provided by the court, when available, is attached. To obtain the original file, double-click the icon in the original file box below, then select detach or launch. It may then be viewed in WordPerfect with page numbering and footnotes as provided by the court.
AG number: 7063Style: Childers vs. Department of Environmental Protection
Jurisdiction: 1st DCADate issued: July 16, 1997
Original file, if available: 7063.wpd

Implementation of net ban amendment
Because an individual’s livelihood is at stake, ambiguity in the statutory language implementing Florida’s net ban amendment must be interpreted in favor of the individual and against the state agency attempting to suspend his fishing license, the 1st DCA said.
The court rejected the Department of Environmental Protection’s effort to suspend the saltwater products license of a man who was found guilty of violating the net ban but had adjudication of guilt withheld. The DCA said that disposition is not the same as a conviction, and the law in effect at the time required a conviction before the department could suspend a license. The statute has since been revised to eliminate the ambiguity over what constitutes a conviction.
“We reject DEP’s contention that, as a conservation measure, (the statute) need not be construed strictly against a licensing agency proposing disciplinary action. While it would be difficult to overstate the importance of conserving marine life, human life and health are surely no less important,” the DCA said. Noting the ambiguity over the statutory definition of the word “convicted,” the DCA added, “A licensee whose livelihood hangs in the balance is entitled to the benefit of this ambiguity.”


Opinion filed July 16, 1997.

An appeal from a final order of the Department of Environmental Protection.

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.

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, and Marine Fisheries Commission Emergency Rule 46ER95-1. 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[] 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:
          (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. 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, 22 Fla. L. Weekly D1227 (Fla. 1st DCA May 12, 1997). But
          statutes authorizing the revocation of a license to practice a business or profession "must be strictly construed, and such provisions must be strictly followed, because ... penal in ... nature.” State v. Pattishall, 99 Fla. 296, 298, 126 So. 147, 148 (1930). But see DeBock v. State, 512 So. 2d 164 (Fla.1987).

Werner v. Department of Ins. and Treasurer, 689 So. 2d 1211, 1214 (Fla. 1st DCA 1997). Without a saltwater products license, Mr. Childers cannot work as a commercial fisherman, even on somebody else's boat.
We reject DEP’s contention that, as a conservation measure, section 370.092(8)(b), Florida Statutes (1995), need not be construed strictly against a licensing agency proposing disciplinary action. See Holmberg v. Department of Natural Resources, 503 So. 2d 944, 947 (Fla. 1st DCA 1987)(holding "liberal construction to effectuate a public purpose ["preservation of Florida's beaches and shores"] cannot prevail over a principle of law as firmly established as that regarding statutory penalties"). While it would be difficult to overstate the importance of conserving marine life, see Nash v. Vaughn, 133 Fla. 499, 182 So. 827 (Fla. 1938); Ex parte Powell, 70 Fla. 363, 70 So. 392 (Fla. 1915), human life and health are surely no less important. Cf. Breesmen v. Department of Prof’l Regulation, Bd. of Med., 567 So. 2d 469, 471 (Fla. 1st DCA 1990)(holding medical practice act "must be strictly construed in favor of the licensed physician").
DEP points to the definition of conviction in the Florida Rules of Criminal Procedure governing sentencing guidelines. E.g., Fla. R. Crim. P. 3.701(d)(2). See also McCrae v. State, 395 So. 2d 1145 (Fla. 1980). In furtherance of its stated purpose that the "severity of the sanction should increase with the length and nature of the offender's criminal history," Fla. R. Crim. P. 3.701(b)(4), the guidelines define convictions justifying longer sentences to include all prior determinations of guilt, even if adjudication has been withheld. Fla. R. Crim. P. 3.701(d)(2). On the other hand, establishing a principal’s conviction in an accessory’s prosecution requires proof that the principal was adjudicated guilty. Weathers v. State, 56 So. 2d 536 (Fla. 1952). If "a person pleads guilty or is found guilty by a jury but the sentencing judge withholds an adjudication of guilt, there has been no conviction and the person's credibility cannot be impeached with it." Charles W. Ehrhardt, Florida Evidence 610.4, at 434 (1994 Edition). See Barber v. State, 413 So. 2d 482, 484 (Fla. 2d DCA 1982).
At one time it was a felony to sell intoxicating liquors in a dry county "having before been convicted of the like offense," while commission of a first offense was a misdemeanor. Our supreme court decided that, for purposes of the statute, a conviction "involve[d] all the necessary proceedings from the charge to the sentence inclusive." Smith v. State, 75 Fla. 468, 473, 78 So. 530, 532 (Fla. 1918). When a prior conviction is an element of a crime, the same definition is still employed today. See Weathers; Malcolm v. State, 605 So. 2d 945 (Fla. 3d DCA 1992); Castillo v. State, 590 So. 2d 458 (Fla. 3d DCA 1991); Burkett v. State, 518 So. 2d 1363, 1366 (Fla. 1st DCA 1988)(holding “that a defendant is ‘convicted,’ for purposes of [possessing a firearm while a convicted felon], when he is adjudicated guilty in the trial court”).
In short, as the Supreme Court of Florida observed last century, "numerous authorities" define conviction to mean a judge or jury's determination of guilt, while "numerous [other] authorities . . . hold the judgment or sentence to be a necessary component part of 'conviction.'" State ex rel. Owens v. Barnes, 24 Fla. 153, 158, 4 So. 560, 561 (1888). Context must be looked to, but offers little guidance here. Regulatory statutes that define convictions broadly to include guilty pleas or other possible steps in a criminal prosecution, see, e.g., McNair v. Criminal Justice Standards and Training Comm’n, 518 So. 2d 390 (Fla. 1st DCA 1987)(applying sections 943.13(4) and 943.1395, Florida Statutes), underscore the ambiguity in section 370.092, Florida Statutes (1995), which leaves "convicted" undefined. A licensee whose livelihood hangs in the balance is entitled to the benefit of this ambiguity.
Although our focus is the statute before it was amended, legislative history surrounding the changes is not without relevance to our inquiry. The Natural Resources Committee of the House of Representatives produced a Final Bill Analysis dated May 16, 1996. Under the heading “Substantive Analysis,” it addressed the “Present Situation,” reporting that, within months of the passage of the 1995 laws implementing the net ban, “F[lorida ]M[arine ]P[atrol] officers began to realize there were loopholes in the law.” Fla. HR Comm. on Nat. Res., CS for HB817 (1996) Final Staff Analysis (May 16, 1996)(on file with comm.) at 3. One of the "loopholes" identified was that “DEP has encountered certain circuit court judges who, more often than not, have adjudicated without guilt [sic] alleged net-ban violators.” Id.
In the “Section-By-Section Analysis,” the effect of the amendment proposed to section 370.092, Florida Statutes (1995) was described: “Imposes penalties on people . . . who have received any judicial disposition other than acquittal or dismissal, rather than only on those entities which have been convicted of violating the constitutional net ban.” Id. at 6 (emphasis supplied). Although he received a judicial disposition other than acquittal or dismissal, Mr. Childers was not "convicted of violating the constitutional net ban," within the unambiguous meaning of the statute before it was amended. "An administrative agency may not revoke [or suspend] a license or a permit for some cause not clearly within the ambit of its statutory authority." Board of Trustees of Internal Improvement Fund of State of Florida v. Barnett, 533 So. 2d 1202, 1206 (Fla. 3d DCA 1988)(citing cases).