“A material fact is one which might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To preclude summary judgment, the dispute about a material fact must also be "genuine," such that a reasonable jury could find in favor of the non-moving party. Id.”
CHARLES BECKHAM
Petitioner
vs. FWC Case No. 08-0029A
FLORIDA FISH AND WILDLIFE
CONSERVATION COMMISSION
Respondent
____________________________/
Written Notice of Waiver of December 10th 2008 Hearing in Lieu
Of Written Statements and Other Documentary Evidence
In the Matter of an ADA Appeal By Charles Beckham
__________________________________________________
Waiver of Hearing
I, Charles Beckham, waive the hearing in Lake City on Wednesday, December 10th, 2008, exercising the option to submit my case FOR ADA accommodations in written and DVD form to The FWC.
Copies of this notice have been sent, along with my 10 page appeal,documents and a DVD to Rolando Garcia, FWC Regional Director in
Lake City and two copies of all evidence to Mr. Stan Warden, Assistant General Counsel, FWC, Tallahassee. I do NOT believe that the constitution prohibits the net I’ve requested, but in fact, supports my request. Thus the enclosed DVD(’s) are an essential part of my appeal.
Please accept all evidence enclosed and consider carefully.
_______________________________________
Charles Beckham
PO Box 174
Cedar Key, Fl. 32625
1. The Petitioner, Beckham’s (Hereafter “Beckham,”) disabilities clearly fall under the ADA’s criteria for a disabled person…
A. Beckham is 74 years of age and is basically age excluded from throwing a cast net since commercial cast nets take a lot of flexibility and strength to use.
B. His shoulders lack cartilage and he has a painful bone on bone condition that clearly prevents him from throwing a commercial size cast net.
C. Beckham has heart stints.
D. Beckham also has many back problems.
2. The Respondent (Hereafter, FWC), initially informed Beckham that proof of his disabilities from a licensed medical doctor “would not be
necessary.” The FWC then proceeded to deny Beckham’s request for reasonable accommodations under the American’s with Disabilities Act
(Hereafter ADA), claiming Beckham had not proved his disabilities as stated in the denial letter from Executive Director Ken Haddad (09/03/2008). The FWC is clearly operating in “BAD FAITH” in the case of Beckham.
3. The Florida State Courts have informed the FWC that they have “full constitutional authority” to determine what size meshes are legal under
the constitution… And said determination can not be questioned by the state judicial branch, legislative branch or any other plaintiff seeking a reversal of an FWC decision in the State of Florida…
4. This appeal would have never been necessary if the FWC established SUBSTANTIVE,(Not only Procedural) DUE PROCESS in 1999 as mandated by the citizens of Florida via Article IV, Section 9 of the Florida Constitution. (See Attachment “A”)
5. The FWC has not only refused to establish CONSTITUTIONAL DUE PROCESS since their mandate by the citizens of Florida to do so in 1999,they have removed all previous avenues of CONSTITUTIONAL DUE PROCESS that existed in the prior regulatory body, the Marine Fisheries Commission. (MFC)
6. Because of said lack of CONSTITUTIONAL DUE PROCESS, BECKHAM’S ONLY avenue to pursue and save his livelihood is through requesting accommodations under the ADA… Of which he qualifies for.
7. Because Beckham is a citizen regulated by the FWC, unlike the average citizen, it is well established by courts of law that he can NOT…
A. Appeal to the courts on Constitutional issues that affect his livelihood.
A(1). Because the courts have determined “the courts can NOT “question the wisdom of the FWC.”
B. Address grievances through Representatives or Senators in the Legislature.
B(1). Because the courts have ruled that, “the Legislature is not even allowed to review FWC rules.”
C. Appeal to the head of the Executive Branch, the Governor.
C(1). Because the court has determined that, “the Governor can only appoint or dismiss commissioners.”
8. Because Beckham’s livelihood has been 100% regulated by the FWC since 1999, he and all other able bodied and disabled fishermen have NOT enjoyed the protections of the United States Constitution, nor a “Separation of Powers” to prevent the unchecked powers of the seven political appointees that make rules upon his industry.
9. Beckham’s livelihood is completely, 100%, governed by the FWC and the Limiting Marine Net Fishing Amendment… The Florida Supreme Court determined that THE ONLY PURPOSE (SINGLE SUBJECT) of the Limiting Marine Net Fishing Amendment was
to PREVENT UNNECESSARY KILLING, OVERFISHING AND WASTE” of Florida’s resources. Advisory Opinion to the Attorney Gen.-- Limited Marine Net Fishing, 620 So. 2d 997, 999-1000 (Fla. 1993) Also,(See Attachment “B”…)
The current ADMINISTRATIVE CODE relied upon by the FWC in Beckham’s ADA request denial, forces Beckham, and all other disabled fishermen, to use a net that UNNECESSARILY KILLS AND WASTES at a 98% by-catch rate. This 98% by-catch rate was established by FWC/FWRI tests conducted in 2005... The FWC HAVE ADMITTED that they are able to be grant larger mesh nets that only have 2% by-catch rates to all fishermen. (See submitted net tests “C” and video evidence)
10. As admitted by State Attorney Jonathon Glogau, representing the FWC in the 1st DCA…2006, the FWC “knew that 2” mesh nets would catch undersized fish and 3” (or larger), mesh nets would capture legal sized fish. (See video evidence)
11. The above evidence in #10, provided by the FWC/FWRI, clearly proves the FWC are KNOWINGLY EXCLUDING disabled fishermen from participating on any sort of “equal footing” in the net fishing
industry, while allowing able bodied net fishermen to use hand thrown commercial cast nets. These legal cast nets have large monofilament mesh, legally targeting and intentionally gilling ONLY marketable fish.
12. Amendments are supposed to treat all affected individuals equally. Clearly, the FWC’s determination that able bodied cast net fishermen can use ANY SIZE MESH, combined with MONOFILAMENT, to LEGALLY GILL MARKETABLE SIZED FISH, gives able bodied fishermen a competitive advantage that the disable will never begin to be able to compete with under current conditions.
13. The FWC’s own net tests (2005), prove they are KNOWINGLY forcing Beckham (and all other disabled net fishermen), to use a net that not only wastes the resource at a 98% rate, but that they are also KNOWINGLY forcing all disabled fishermen to waste 98% of their effort illegally disposing of destroyed juvenile fish. (See Attachment C and video evidence.)
BY LAW, proven by FWC/FWRI Tests, up to…
A. 98% of Beckham’s catch with 2” mesh nets is…
A(1). Illegal to keep.
A(2). Illegal to throw back dead.
A(3) Illegal to sell.
(See Attachment “C”)
14. Due to the above facts in #13, the FWC is KNOWINGLY FORCING Beckham to violate the SINGLE SUBJECT of the Limited Net Fishing Amendment, which is to “PREVENT UNECESSARY KILLING AND WASTE.” (See attachment “C” and video evidence)
15. Due to the above facts in #13, the FWC is knowingly forcing Beckham into an ENTRAPMENT SITUATION by forcing him to violate state laws related to A(1), A(2), & A(3).
16. As discovered in the FWC/FWRI 2005 net tests, smaller mesh nets gill, unnecessarily kill and waste far more fish than large mesh nets. (See Attachment “C”)
17. As testified to by the FWC’s FWRI Director, Gil McRae, in Dania Beach, Florida, on June 12th, 2008, the smaller the mesh, the more fish Illegal, juvenile fish) will be gilled… Thus “smaller” mesh is clearly NOT the answer. (See video evidence)
18. The record from the Dania Beach FWC meeting on June 12th, 2008, states that the smaller the mesh, the LESS viable and selective the net.(See video evidence)
19. “Thicker twine,” or more heavy net mesh is very hard for an able bodied fisherman to handle… and nearly, if not completely, impossible for a disabled person to handle. “Thicker” or “Heavier Twine” is clearly not the answer.
20. In addition to #19, heavier twine sizes were traditionally ONLY used on gigantic beach seine nets that were operated by numbers of fishermen.
21. Clearly, a net that has large mesh, thus a 2% by-catch, as Beckham is requesting, is more compliant with an Amendment that has “A SOLE PURPOSE” of “PREVENTING UNNECESSSARY KILLING AND WASTE,” than a 2” mesh net that has a FWC proven 98% by-catch.(See attachment “C”)
22. The “Single Subject” clause was enacted to prevent EXACTLY the type of interpretation that led to the adoption of the 2” mesh seine net. The term “logrolling” best fit’s the FWC’s adoption of the old MFC rule… Especially after the 2005 net tests proved the adoption of the rule was 100% contrary to the will of the public in the Amendment whose “SOLE PURPOSE” was to “prevent unnecessary killing and waste.” The “Single Subject” rule was enacted to prevent an Amendment from having unintended consequences. The FWC interpretation of mesh sizes resulting in 98% waste is OBVIOUSLY 100% contrary to the Limiting Net Fishing Amendment’s intent. (See attachment “B”)
23. The Magnussen Stevenson Act’s MANDATE TO THE STATES IS TO REDUCE BY-CATCH. The FWC has mandated Beckham, and all other disabled fishermen, to use a net that clearly, many, many, many times over, violates the Magnussen Stevenson Act.
24. A “reasonable” by-catch in traditional net fishing standards would be 2%-5% for “rectangular net,” and 10% for a traditional “seine net.” The “traditional seine net” was redefined by the FWC’s predecessor, the MFC, AFTER the Limited Net Fishing Amendment passed. The MFC’s 1996 irrational redefinition of a seine net turned the 10% by-catch net into the 98% by-catch (waste) net Beckham is forced to fish with today.
25. Before the Limiting Net Fishing Amendment, besides seines, the ONLY other “rectangular nets” were either “Gill Nets,” which were extremely large, now prohibited nets, that primarily gilled legal size fish, or “FEELER NETS,” which also primarily gilled legal size fish, but were much smaller in size.
A. Some fishermen carried “feeler nets” on their vessels to “test the waters” in muddy waters for targeted fish, rather than to hope they were setting a marketable fish and ending up with horrendous by-catches.
B. Some “feeler nets” were made up of various size meshes for testing what types and size net the fisherman would eventually use in the muddy waters.
26. The Amendment allows for “SEINES AND OTHER RECTANGULAR NETS, yet, to-date, the FWC have never allowed “other rectangular nets” containing “500 square feet of mesh area or less.” (Despite the public voting to allow “other rectangular nets.” A “500 square foot “FEELER TYPE NET” would satisfy the Amendment’s allowance for “other rectangular nets,” with LARGE MESH that nearly eliminates by-catch while allowing the disabled, like Beckham, to pursue their
lifelong occupations as commercial fishermen in this suffering economy.
In addition, “FEELER TYPE NETS” would allow the disabled, like Beckham, to compete on nearly the same “playing field” with able bodied cast net fishermen, whom are governed under the same
Amendment, that use large mesh monofilament nets which target and GILL 98% marketable fish.
27. Fact: As determined by FWC/FWRI tests conducted in 2005:
Presently mandated 2” mesh seine nets result in 98% waste. (49 fish wasted for each marketable fish captured. 2” mesh nets are mandated by the FWC, NOT the constitution)
(The above facts as determined by the FWC, are in complete violation of the Constitutional Amendment’s Single Subject, which is to
“PREVENT UNNECESSAY KILLING AND WASTE.”) (See
attachment “C”)
28. As proven by FWC/FWRI tests conducted in 2005, large mesh nets, 3” and larger, result in only 2% waste. (See attachment “C”)
(The above facts prove that larger mesh nets are in FULL compliance with the Constitutional Amendment’s Single Subject to “PREVENT UNNECESSARY KILLING AND WASTE.”)
29. Large mesh 500 square foot nets could NEVER harm the resource. According to worldwide scientific fishery management and the Magnussen Stevenson Act, by-catch (waste) is ALWAYS frowned upon as counter productive. It’s been proven worldwide that larger mesh size is better for the resource… Which is exactly what the FWC is charged to protect. In fact, the FWC’s own expert claims large amounts of by-catch is NOT good for resource management. 98% waste caused by the 2” mesh net is “off the charts.”
30. Pertaining to resource protection, the Director of the FWRI admitted in Dania Beach on June 12th, 2008, that the mullet stock were returning to health in 1995 BEFORE the Limited Net Fishing Amendment was enacted due to existing restrictions. In 1995, there were many times the net fishermen there are today, using gill nets that were 50 times larger than the 500 square foot nets currently allowed. (See attachment “D”…)
A “to scale” image of the small ADA net requested vs. a typical net from 1995) In addition, there was a healthy infrastructure, whereas today, there are few outlets for fishermen to sell their catches. CLEARLY, allowing fishermen to use nets that are 2% of the previous size nets used when the resource was recovering with then existing restrictions, will NEVER reverse the recovery. In fact, larger mesh nets should ENHANCE the recovery by allowing fish to spawn before capture. (Magnussen Stevenson Act and worldwide accepted fishery science.)
31. The Administrative Law Judge, Ella Jane Davis (hereafter ALJ, allowed the 2” mesh to be used ONLY on mullet nets with the following conditions.
A. The use of the 2” mesh net would be watched for unnecessary by-catch that might violate the intent of the Amendment.
31(a) Because she accepted the MFC’s testimony that the 2” seine net would ONLY HAVE 3%-5% by catch, while disregarding the fishermen’s testimony of horrendous by-catch rates as anecdotal.
31(a)(1) It has now been proven the Fishermen told the truth to the Administrative Law Judge and the MFC expert either lied or was incompetent.
31(a)(2) Despite the facts, the net rule remains in place.
B. The ALJ told the MFC that the 2” mesh net could NOT be used as a “constitutional issue.” (See Attachment “E”)
31(b) Not only has the FWC used the ruling as a “constitutional issue, they have used the ruling to incorporate 2” mesh nets into EVERY net, except cast nets as a “constitutional issue. Despite their knowledge that the 2” mesh net violates the ONLY purpose of the Limiting Net fishing Amendment.
32. The 2” mesh net rule appealed under the ADA in this case was NEVER VALIDLY ADOPTED. The MFC adopted the 2” mesh net rule BEFORE they were granted the “Constitutional Authority” to do so. Therefore, Beckham, and all other known fishermen, believe that the 2” mesh rule is an invalid exercise of “NON” DELEGATED AUTHORITY. And furthermore, the FWC’s own evidence from the 2005 net tests prove the current net rule is 100% contrary to the sole purpose of the amendment, which was determined by the Florida Supreme Court and voted on by the citizens of Florida.
33. The lack of a commercially viable net available for the disabled, mostly elderly, fishermen across Florida has directly and detrimentally impacted the local economy AND Interstate Commerce.
34. To fish, Beckham must hire someone in the hope that they can pull in the small mesh net fast enough to catch a FEW marketable mullet and not to gill too many small, illegal fish… Almost always, more illegal, juvenile fish are captured than marketable ones, needlessly destroying future breeding stocks of fish.
35. Addressing Beckham’s denial of a formal hearing because the Executive Director, Kenneth Haddad, claims there were “no material facts” submitted.
A. Under the following legal definition…
“{A material fact is one which might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To preclude summary judgment, the dispute about a material fact must also be "genuine," such that a reasonable jury could find in favor of the non-moving party. Id.”
35(a) Beckham firmly disagrees that there were “no material facts” presented in his initial request for accommodations.
35(b) Beckham finds it irrational, illogical and absurd that the Executive Director has the right to determine that there is a complete lack of “material fact,” when in the eyes a rational human being, there was extensive “material fact” submitted that would sway a reasonable jury to “move in favor of the non-moving party.”
36. Beckham was granted an “informal hearing” by FWC Executive Director Kenneth Haddad in front of FWC Regional Director Rolando Garcia. The FWC have NEVER operated in “good faith” with the
fishing industry, and Beckham suspects the same “bad faith” is happening with his denial due to a lack of “material fact” leading to an
“informal hearing.” IF the proper accommodation is not granted by the hearing officer, Beckham reserves the right to include the FWC’s “Due
Process Workshop” video of September 13, 2006 to further prove his allegations of “bad faith” and “bias.” Hopefully, an appeal will not be
necessary.
37. There is clearly NO legal constitutional or logical reason to force disabled fishermen to continue to use gear that the FWC has admitted in court to being useless. When viable, 47X more environmentally safer nets ARE AVAILABLE. (Video evidence, 1st DCA 2006)
Conclusion
The FWC relies on irrelevant cases to “deny” Beckham accommodations which the FWC have admitted are available for ALL commercial fishermen under their constitutional authority. Therefore, to deny the disabled an opportunity to ply their trade on nearly equal footing with able bodied fishermen is a violation of the ADA. Not only have the accommodations been admitted as “available” to fishermen, the Federal Judge, Mickel, in the FWC mentioned “Crum Case, declared the larger mesh accommodation request “reasonable.”
The large mesh net accommodation has been declared “reasonable” by a Federal Judge and “available” by the FWC. The requested large mesh nets have been proven through FWC tests to be 100% compliant with the “sole purpose” or “single subject” of the Amendment, while the currently mandated two inch mesh net have been proven to be 100% contrary to voter intent. The Supreme Court of Florida declared that “absurd and common sense defying” interpretations of the Amendment “would not be adopted.” Surely, ANY individual with “a lick” of sense would declare a net that wastes 98% of it’s resulting catch “absurd and common sense defying” in the light that the Amendment’s “SOLE PURPOSE” was to prevent unnecessary killing and waste.” Therefore, along with all of the other evidence presented, the Hearing Officer should rule in favor of Beckham.
Submitted December 2, 2008
___________________________________________
Charles Beckham
PO BOX 174
Cedar Key, Florida 32625
1 copy of this appeal submitted to Hearing Officer…
Roland Garcia
3377 E. US Highway 90
Lake City, Fl 32055-8795
&
1 copy of this appeal submitted to…
Mr. Stan Warden
Assistant General Counsel
Florida Fish and Wildlife Conservation Commission
Office of the General Counsel
620 South Meridian Street
Tallahassee, Florida 32399-1600
CHARLES BECKHAM
Petitioner
vs. FWC Case No. 08-0029A
FLORIDA FISH AND WILDLIFE
CONSERVATION COMMISSION
Respondent
____________________________/
Written Appeal For ADA Accommodations
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