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Other Dates







NOVEMBER 12, 2003






Item 1             Minutes


Submittal of the Minutes from the June 26, 2003 Cabinet Meeting.


(See Attachment 1, Pages 1-3)






Item 2               Rosanne Malone Aquculture Lease


REQUEST:  Consideration of 1) authorization to issue one ten-year sovereignty submerged land aquaculture lease of approximately two acres; and 2) a request to waive the $200.00 aquaculture lease application fee.




APPLICANT:  Rosanne Malone


LOCATION:  A tract of sovereignty submerged land in Township 15 South and Range 12 East, commonly described as the expansion area of the Pelican Reef High-density Lease Area located in the Gulf of Mexico, in the vicinity of Cedar Key, Florida.


CONSIDERATION:  A base annual lease fee of $31.90, representing a base annual fee of $15.95 per acre or fraction thereof; plus an annual surcharge of $20.00, representing $10.00 per acre or fraction thereof, for deposit in the General Inspection Trust Fund pursuant to section 597.010, F.S.  Pursuant to subsection 597.010(7)(a), F.S., lease fees shall be adjusted on January 1, 2005, and every five years thereafter, based upon the five-year average change in the Consumer Price Index.


STAFF REMARKS:  Ms. Rosanne Malone has requested a two-acre aquaculture lease in the Pelican Reef Expansion Area to conduct hard clam aquaculture.  Ms. Malone is currently engaged in clam aquaculture activities on Aquaculture Lease No. 38-AQ-507, but possession of this lease has been disputed by Mr. Teofilio Perez.  Mr. Perez was the original leaseholder before transferring the lease to Nature Coast Industries, Inc. (NCI).  Subsequently, Mr. Perez took legal action against NCI regarding possession of the lease.  The matter was further complicated when NCI transferred the leasehold to Ms. Malone.  The transfer by NCI to Ms. Malone was approved subsequent to the date Mr. Perez filed his legal action against NCI.  The Levy County Judge ordered a Final Judgment for Eviction in favor of Mr. Perez and against NCI.  The Department, based on advice from general counsel, believes that this matter can be resolved equitably by allowing Mr. Perez to retain possession of the original lease and by offering an alternative lease parcel to Ms. Malone.  In order to accommodate Ms. Malone, the Department seeks consideration of the Board to authorize a two-acre lease parcel in the Pelican Reef expansion area, and to waive the $200.00 aquaculture lease application fee.


The following provides a summary of actions involving Aquaculture Lease No. 38-AQ-507.  On June 16, 1992, the Board of Trustees granted the Department of Environmental Protection (DEP) authority to issue 71 aquaculture leases in Levy County.  In response to the successful clam farming programs and a request from the Levy County Board of County Commissioners, additional leases were made available for aquacultural development on August 8, 1995, and on March 11, 1997.  Authority was granted to issue 131 additional leases in Levy County,

                Board of Trustees

                Dept. of Agriculture & Consumer Services

                Agenda – November 12, 2003

                Page Two




Item 2, cont.


including 70 aquaculture leases authorized in the tract designated as the Pelican Reef High-density Lease Area (Pelican Reef).  Aquaculture Lease No. 38-AQ-507, containing parcel number L-922, was originally granted to Mr. Teofilio N. Perez on July 23, 1997.  The aquaculture lease was subsequently transferred to NCI following approval by the Board of Trustees on May 11, 1999.  This aquaculture lease was included in a request by NCI to transfer or reassign 18 aquaculture leases from individual leaseholders to the corporation.  Each lease referenced in Nature Coast Industries' request provided that it could be subleased, assigned or otherwise transferred upon written consent of the Lessor.  Due to the number of leases involved in this transaction, the transfers and reassignments were brought before the Board of Trustees for consideration.  The transfer of 18 aquaculture leases, accounting for 42 acres, represented a unique and unprecedented request by a single corporate entity.


On March 27, 2001, Mr. Perez filed a law suit and lis pendens against NCI (Teofilio N. Perez vs Nature Coast Industries, Inc.) in County Court in Levy County, Florida.  On June 25, 2001, the transfer of Aquaculture Lease No. 38-AQ-507 from NCI to Ms. Rose Malone was approved.  On October 7, 2002, Levy County Judge Joseph E. Smith ruled that Teofilio N. Perez recover possession of the real property described as “Parcel Number L-922” from NCI.  The Court entered a Final Judgment for Eviction, a Final Judgment of Damages, and a Writ of Possession in favor of Mr. Perez.  Neither the State nor the Board of Trustees were parties to the litigation and were unaware of the litigation until the judgment favoring Mr. Perez was rendered.  Since the Department was unaware of these legal proceedings, the transfer of Aquaculture Lease No. 38-AQ-507 by NCI to Ms. Malone was approved, and Ms. Malone is the current leaseholder of record and is actively farming the lease.


Subsequent to the judgments, staff became aware of the situation, and upon advice of the Office of General Counsel, a proposed settlement between Teofilio Perez and Rose Malone was reached in an effort to avoid further litigation.  Both parties agreed to a possible settlement, pending approval by the Board of Trustees.  On January 30, 2003, the parties documented their agreement contingent upon 1) Mr. Perez retaining the original lease (38-AQ-507; L-922), and 2) Ms. Malone obtaining a new lease in Pelican Reef Expansion Area.


A lease parcel could be authorized in the Pelican Reef Expansion Area.  On May 13, 2003, the Board of Trustees granted the Department of Agriculture and Consumer Services (DACS) authority to issue 11 aquaculture leases on a tract of submerged lands referred to as the Pelican Reef Expansion Area in the Gulf of Mexico, in the vicinity of Cedar Key.  This tract of submerged lands was authorized for additional aquaculture use so lessees in the Big Reef High-density Area (Big Reef) had an opportunity to re-locate their lease parcels to the  Pelican Reef Expansion Area, which is considered to be more favorable for growing hard clams.  The Department had previously completed resource surveys of the expansion area and determined that it was suitable for growing hard clams and was large enough to accommodate more than the initial eleven lease parcels.  The tract of submerged lands that was included in the Pelican Reef Expansion Area included more than fifty acres, of which only about half was used for the initial re-location from the Big Reef.  Therefore, about 25 acres remain available for leasing in the Pelican Reef Expansion Area.


Lease Parcel No. L-922 is located in the original Pelican Reef High-density Lease Area. The proximity of the two parcels is expected to provide similar culture conditions on both leases.  The Department also proposes to de-activate a previously authorized two-acre parcel, which is currently vacant and has proven unusable for aquacultural production, so that the authorization of the new lease parcel will not result in an increase in the number of acres held under lease in Levy County. 

                Board of Trustees

                Dept. of Agriculture & Consumer Services

                Agenda – November 12, 2003

                Page Three




Item 2, cont.


The applicant has submitted a new lease business development plan for the term of the lease that conforms to minimum cultivation requirements; is in compliance with the terms and conditions of the lease agreement; and has no marine resource or public health violations related to the performance of aquacultural activities.


The application was noticed pursuant to section 253.70, F.S., and no objections were filed for the application.


A consideration of the status of any local government comprehensive plans was not made for this item.  DACS has determined that the proposed action is not subject to the local government planning process.


(See Attachment 2, Pages 1-19)