Florida Administrative Code › 68 - FISH AND WILDLIFE CONSERVATION COMMISSION › 68 - Departmental › Chapter 68-1 - GENERAL PROVISIONS › Section 68-1.008 - Due Process Procedures

Current through Reg. 50, No. 138; July 16, 2024
(1) Summary of Due
				Process Procedures: The due process procedures adopted by the Fish and Wildlife
				Conservation Commission (FWC) are designed to satisfy Article IV, Section 9,
				Florida Constitution, and to address the recommendations in Section
				20.331(9)(a)(b) and
				(c), F.S. (1999). The procedures adopted by
				the FWC are adequate within the meaning of the constitution because the
				procedures fully comply with the applicable procedural and substantive due
				process provisions of Chapter 120, F.S., and its companion provisions, the
				Uniform Rules of Procedure. As to rules promulgated under the FWC's
				constitutional authority, there are adequate judicial remedies to adjudicate
				such rules and provide due process of law. With respect to FWC proposed rules
				to list or delist species as endangered, threatened or of special concern, the
				FWC has adopted an additional procedure, not required by law, which assures
				that any party shall receive a special hearing, known as a "draw-out, " before
				an Administrative Law Judge as to the phase one part of the listing process,
				and that such special "draw-out" hearing shall suspend the rule. FWC rulemaking
				authority over endangered marine species, such as manatees and sea turtles, is
				derived from the legislature and adjudication of proposed rules on these
				species is subject to Administrative Procedures Act (APA).
(2) Background: Article IV, Section 9,
				Florida Constitution, as amended by Constitution Revision Commission Revision
				5, as adopted in 1998, created the Fish and Wildlife Conservation Commission
				(FWC) to exercise the state's regulatory and executive authority with respect
				to wild animal life and freshwater aquatic life and to exercise executive and
				regulatory authority with respect to marine life. The issue of due process is
				specifically addressed in Revision 5 which states that the Commission shall
				establish procedures to ensure adequate due process in the exercise of its
				regulatory and executive functions. Due process is also addressed in the
				"merger bill" which implements Revision 5. See, Chapter 99-245, Laws of
				Florida, now codified in pertinent part as Section
				20.331, F.S. While this law does
				not mandate that any particular due process procedure must be followed by FWC,
				it provides several recommendations in Sections
				20.331(6)(a)-(c),
				F.S. First, it states that FWC shall implement a system of adequate due process
				procedures to be accorded to any party, as defined in Section
				120.52, F.S., whose substantial
				interests will be affected by any action of the Fish and Wildlife Conservation
				Commission in the performance of its constitutional duties or responsibilities.
				Second, the legislation encourages the commission to incorporate in its process
				the provisions of Section
				120.54(3)(c),
				F.S., when adopting rules in the performance of its constitutional duties or
				responsibilities. Third, the provisions of Chapter 120, F.S., shall be accorded
				to any party whose substantial interests will be affected by any action of the
				commission in the performance of its statutory duties or responsibilities. For
				purposes of this subsection, statutory duties or responsibilities include, but
				are not limited to, the following:
(a)
				Research and management responsibilities for marine species listed as
				endangered, threatened, or of special concern, including, but not limited to,
				manatees and marine turtles;
(b)
				Establishment and enforcement of boating safety regulations;
(c) Land acquisition and
				management;
(d) Enforcement and
				collection of fees for all recreational and commercial hunting or fishing
				licenses or permits;
(e) Aquatic
				plant removal and management using fish as a biological control
				agent;
(f) Enforcement of penalties
				for violations of commission rules, including, but not limited to, the seizure
				and forfeiture of vessels and other equipment used to commit those
				violations;
(g) Establishment of
				free fishing days;
(h) Regulation
				of off-road vehicles on state lands;
(i) Establishment and coordination of a
				statewide hunter safety course;
(j)
				Establishment of programs and activities to develop and distribute public
				education materials;
(k) Police
				powers of wildlife and marine officers;
(l) Establishment of citizen support
				organizations to provide assistance, funding, and promotional support for
				programs of the commission;
(m)
				Creation of the Voluntary Authorized Hunter Identification Program; and,
(n) Regulation of required
				clothing of persons hunting deer.