STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD M. MATTOX, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0031

)

GAME AND FRESH WATER FISH )

COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer, on August 28, 1990, in Crestview, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: John C. Harrison, Esquire

12 Old Ferry Road Shalimar, FL 32579

For Respondent: James T. Knight, III, Esquire

Assistant General Counsel

Florida Game and Fresh Water Fish Commission

620 S. Meridian Street Tallahassee, FL 32399-1600

STATEMENT OF THE ISSUES

The issue in this proceeding concerns whether Leonard

1. Mattox, the Petitioner, or his business, Sasquatch Park, is qualified under the provisions of Rule 39-6.0022(5)(c)1, Florida Administrative Code, to engage in the husbandry of a cougar (felis concolor), in terms of the experience requirement of that rule.

   
   

   PRELIMINARY STATEMENT

   
   

   This cause originated on April 19, 1989 when the Petitioner applied to the Respondent ("Commission") to amend his existing Class II wildlife possession permit, which had been issued, pursuant to Section 372.921, Florida Statutes, to include cougars, a Class II wildlife species. On June 14, 1989, the Respondent denied that application based upon the Petitioner's lack of the required experience in the husbandry of that species, as required by then Rule 39-6.0011, Florida Administrative Code.

   On September 11, 1989, the Petitioner again applied for an upgrade of his wildlife possession permit, providing certain documentation related to his commitment to employ Mr. Bob Spencer, the present owner of the cougar in question, who allegedly possessed the required experience under that rule. On November 17, 1989, the Respondent again denied the application.

   On December 6, 1989, the Petitioner filed an election of rights requesting a formal hearing, pursuant to Section 120.57, Florida Statute. The case was ultimately transmitted to the undersigned Hearing Officer for adjudication.

   
   

   During the pendency of this proceeding, on July 1,

   1990, the experience requirement was amended by the enactment of Section 39-6.0022(5)(c)1, Florida Administrative Code, which provides that an applicant shall demonstrate no less than one year of substantial practical experience (to consist of no less than 1,000 hours) in the care, feeding, handling, and husbandry of the species for which the permit is sought.

   
   

   This cause came on for hearing as noticed, at which the Petitioner presented evidence that he will retain persons of the proper qualification and experience level to properly care for the cougar and to meet the experience requirement of the above rule, by the testimony of Bobby E. Spencer and Pauline Redding. Petitioner's Exhibits 1 and 2 were offered and received into evidence, as well. The Respondent presented the testimony of Captain Jerry Thompson to establish the Commission's policy with regard to permitting the possession of Class II animals, such as cougars, and to establish the Commission's policy regarding the manner in which it interprets the subject rule and its experience requirement. Respondent's Exhibits 1 through 8 were offered and received into evidence.

   
   

   The proceeding concluded on the above date, and the parties elected to have the proceeding transcribed. After the filing of the transcript, the parties submitted, in the case of

   the Petitioner, a memorandum of facts, argument and legal discussion. The Respondent submitted a proposed recommended order containing proposed findings of fact and proposed conclusions of law. The proposed findings of fact submitted have been treated in this Recommended Order, as have the statements of fact, law and legal argument embodied in the Petitioner's memorandum. The proposed findings of fact submitted are also specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Leonard M. Mattox, doing business

      as Sasquatch Park, operates a captive wildlife facility, open to the public, in Okaloosa County, Florida, near the City of Crestview. The facility is open to the public between the hours of 9:30 a.m. and 4:00 p.m., and the Petitioner holds a Class II permit authorizing possession of macaques, a primate. Class II wildlife species are animals which have the potential of posing some degree of danger to human beings. The permits for

      possession of such animals are issued by the Commission. The Petitioner's Class II permit authorizing the possession of a macaque was issued on August 19, 1988.

      
      

   2. On April 19, 1989, the Petitioner applied to the Commission to upgrade that permit to include cougars (felis concolor), also an animal on the Class II wildlife species list, delineated in Rule 39-6.002, Florida Administrative Code. Rule 39-6.0011, Florida Administrative Code, then required that an applicant for a Class II permit must possess three-years minimum experience in the husbandry of the species for which the permit was sought. Subsequent to that application, the Commission changed the experience requirement by enacting Rule 39- 6.0022(5)(c)1 on July 1, 1990. That provision defines experience requirement as being no less than one year of substantial, practical experience and consisting of not less than 1,000 hours in the care, feeding, and handling of the species for which the permit is sought.

      
      

   3. Petitioner concedes that he does not possess the required 12 months or 1,000 hours of experience. In fact, he testified that although he has extensive experience in the care and husbandry of numerous exotic wildlife species, including macaques, a Class II species, he has no formal experience in the husbandry of cougars. Rather, the Petitioner is relying on the experience of Mr. Bobby Spencer and Ms. Pauline Redding, both of whom have owned and possessed and cared for cougars for approximately five years. The cougar that the Petitioner seeks to own and exhibit in his zoo is "Micah", presently owned by Mr. Spencer. Mr. Spencer wishes to donate Micah to the Petitioner's zoo in order to give the cougar a safe, comfortable, appropriate home because he can longer keep the cougar. His grandson is allergic to the cougar's fur and exhibits a violent reaction to being in the proximity of the cougar. The Petitioner seeks to establish that his facility is appropriately qualified to maintain and care for the cougar within the requirements of the above rule by retaining both Mr. Spencer and Ms. Redding as "curators". It is undisputed that both of those individuals have more than the required experience in the husbandry of cougars.

      
      

   4. The Petitioner has proposed, with the agreement of both Mr. Spencer and Ms. Redding, that they will make routine, frequent and unannounced visits to the cougar's enclosure to

      ensure that the cougar is being appropriately cared for and that the public viewing the cougar will not be at risk. Both Mr.

      Spencer and Ms. Redding will be available on an "on-call" basis at any hour of the day or night, in addition to making routine unannounced visits to the enclosure. Both Mr. Spencer and Ms. Redding possess Class II permits from the Commission to possess cougars as personal pets. They keep their animals at Commission- approved facilities at their residences, although they do not exhibit them to the general public. Mr. Spencer resides approximately 27 miles from the Petitioner's facility, and Ms.

      Redding resides approximately five miles away and can be at the Petitioner's facility within approximately five minutes. Both are employed full-time, however. Mr. Spencer is a real estate salesman, and Ms. Redding is a full-time receptionist and

      veterinarian's assistant employed with a veterinarian in Ft. Walton Beach, some 27 miles from the Petitioner's facility, during normal working hours. In addition to being experienced in the husbandry of a cougar, Ms. Redding is experienced in the care of many types of animals in her duties as a veterinarian's assistant, which include functioning as an anesthesiologist.

      
      

   5. The testimony of Captain Jerry Thomas of the Game

      and Fresh Water Fish Commission established that the Commission's two primary concerns are the safety of the public and the humane treatment of the animal in situations where a permit is sought for the possession and exhibition of a Class II wildlife species, such as a cougar. There is no dispute that the Sasquatch Facility exceeds the Commission's requirements for housing, possessing and exhibiting the cougar. In fact, the enclosure built specifically for this cougar exceeds the more stringent provisions in the Commission's rules for housing African lions.

      The facility was designed to comport with the rule requirements for housing a breeding pair of African lions. There is a personnel "stand off fence" to protect the public so that no member of the public can approach the cage. The cougar's enclosure itself is an eight-foot high, nine-gauge, chain-link wire enclosure with nine-gauge chain-link wire covering the top of it to prevent the cougar from scaling his enclosure. There are also drop gates installed in the facility to manage a cougar and isolate him, as needed, from one side or other of his enclosure and to prevent involuntary release. In the extremely unlikely event of involuntary release of the cougar, there is an eight-foot perimeter fence around the zoo's facility. This particular cougar, who is substantially overweight, would likely be unable to scale it. If for some reason he was able to scale that enclosure, the rural, wooded character of the area of the Sasquatch facility, which is sparsely populated, would minimize the likelihood of any risk to humans before the zoo personnel could tranquilize the cougar, apprehend him, and return him to the facility. The Petitioner is equipped with the proper equipment and trained personnel, who are capable of tranquilizing the cougar and returning him to the facility. Tranquilizer guns with the appropriate chemical dosage, as prescribed by a veterinarian for an animal such as a cougar, are maintained in readiness at the facility at all times. Thus, the Commission's interest in the safety of the public is well-served by the facility and the personnel it maintains to possess, exhibit and care for animals such as cougars.

      
      

   6. Concerning the issue of the humane treatment of the animal, the facility is equipped with an automatic watering device and a staff veterinarian, Dr. Hill, whose office and residence is in nearby Crestview, is on call on a 24-hour basis. In addition to Mr. Mattox and his wife, who live on the premises and are present every day, the Sasquatch facility has two other full-time employees during each regular working day. Additionally, there are volunteers assisting almost daily. Mr. Mattox himself has a Class I wildlife possession license and previously has been approved for a Class II permit authorizing the possession and exhibition of macaques at the facility. Although the individual care requirements for the two animals are

      different, macaques are also Class II wildlife species considered to pose a potential threat to humans. There is no question that with the experienced personnel maintained by the Sasquatch facility, the advice and oversight of Mr. Spencer and Ms.

      Redding, both of whom have years of experience in the husbandry of cougars, the required feeding, medical attention, watering, and general care of the cougar will be well-accomplished.

      
      

   7. In carrying out the intent of the rule, as it perceives it, to insure the safety of the public and the humane treatment of the animal involved, the Commission has interpreted the experience provision of the subject rule to mean that where

      the applicant for the permit represents an entity or business, as is involved herein, which will house the animal in question, the applicant himself or herself need not possess the required experience, so long as personnel employed by the entity housing the animal will have the requisite experience provided for in the rule. Since Mr. Mattox himself does not have the requisite experience, it must be determined whether personnel he proposes to have care for the cougar will have adequate experience in cougar husbandry to ensure that the Commission's two concerns, public safety and humane treatment of the cougar, are appropriately served.

      
      

   8. In this connection, the Commission in its testimony

      at hearing through its agency representative, espoused the policy view or interpretation of the experience rule to the effect that persons with requisite experience should be on duty at the subject facility on a "full-time basis" or at least four hours per day. The language of the rule, however, does not provide that such personnel should be on duty on a full-time basis nor does it define what "full-time" means in any event. It does not provide a time-period standard delineating when experienced personnel should be on hand. Thus, starting from the premise that, as the Commission concedes, the applicant himself need not have the requisite experience, so long as personnel are available to a facility who do have the requisite experience, an examination must be made of the evidence and findings accordingly made concerning how much care on a typical day is required for a cougar kept in such a facility as Sasquatch Park, in order to satisfy the Commission's espoused concern regarding the animal's welfare. That examination will, in turn, demonstrate whether the Commission's espoused policy interpretation of the above rule experience requirement, in terms of a minimum of four hours per day presence by experienced personnel on the premises, is a reasonable interpretation and application of that rule, since the plain language of the rule itself does not require full-time presence of experienced personnel nor any other such time standard.

      
      

   9. The applicant has established an employment relationship with Mr. Spencer, the present owner of the cougar, whereby he will be the curator for the cougar when it is moved to Sasquatch Park. Mr. Spencer is licensed by the Commission to possess and own the cougar as a pet. He has been the owner and curator of this particular cougar for approximately five years. Mr. Spencer has agreed to provide his services on a 24-hour, on-

      call basis. For the first month or two, he would be present at the facility on almost a daily basis in order to make sure that the cougar becomes accustomed to his new owner and surroundings and does not become distressed at the absence of Mr. Spencer, to whom he has become emotionally attached. Mr. Spencer established, through his unrefuted testimony, that the actual time needed to be spent with the cougar is a maximum of 30 minutes per day, with an average of 15 minutes per day being appropriate. Any more time spent with the cougar, in direct contact, does not benefit the cougar; and it, indeed, might be detrimental to his emotional health. Mr. Spencer has agreed to be present at the facility on an almost daily basis in order to minister to the needs of the cougar for food, water, companionship, and to insure that Mr. Mattox becomes skilled at caring for the cougar. Mr. Spencer cares very much for the cougar and is keenly concerned in seeing that the cougar has a new home which is most beneficial to his welfare. He has investigated several possibilities and determined that Sasquatch Park is the best place for his cougar. As curator for the cougar, he wants the cougar close enough to his residence so that he can help care for him; and he has testified that he will continue to do so until he feels comfortable in gradually turning over the cougar's care to Mr. Mattox. There is no dispute that Mr. Spencer has more than ample experience to comply with the mandate of the above-referenced rule.

      
      

   10. Pauline Redding is also licensed to engage in the husbandry of a cougar as a personal pet. She is the owner and curator of the brother of the cougar in question. She houses her cougar in an enclosure in the yard of her home. She typically leaves home during the day to go to her job, and the cougar is left unattended for that entire period of time every working day. That arrangement comports with the requirements of the rule under which Ms. Redding is licensed to maintain the cougar as a personal pet. There is not a licensed person on the premises with her cougar "full-time" nor any other required time period. Ms. Redding, too, is well qualified and experienced in terms of the requirements of the rule, and in a practical sense, to adequately care for the cougar. She only lives five minutes away from the Sasquatch facility and is able and committed to assist Sasquatch at all times in insuring proper care for the cougar. Her employment experience also provides additional qualifications for her to engage in the husbandry of a cougar. She is employed as a veterinarian's assistant, technician and anesthesiologist. There is no dispute that both these persons are well qualified in terms of experience in directly caring for cougars to render them "qualified curators" of the cougar in question if he is placed at the Sasquatch Park facility. The testimony of Mr. Spencer, as well as that of Ms. Redding and to some extent that of Captain Thomas, establishes that cougars do not require the full-time presence of personnel experienced in their care or even four hours per day. In fact, the unrefuted testimony indicates that

       15 to 30 minutes per day is adequate and that cougars only feed once or, at most, twice a day and get along very well if fed once per day, such as in the evening. Predators, such as cougars, typically feed, by nature, in the early morning or in the late afternoon and are lethargic during the warmer parts of the day.

       It is critical that an adequate supply of water be maintained at all times, and Sasquatch Park has an automatic watering device available for the cougar. Although its present personnel do not have direct experience in caring for cougars, they are well able to recognize when an animal is in need of medical attention and a veterinarian, Dr. Hill, is on 24-hour call, as the staff veterinarian for the facility.

       
       

   11. In summary, the unrefuted evidence establishes

       that cougars, such as Micah, do not need experienced personnel on the premises in their presence for even four hours per day or substantially less than that. It has been established that in order to meet the Commission's concern regarding the animal's welfare, experienced personnel need only be readily available on an on-call basis to insure that the cougar is properly cared for and that during the initial few days or weeks of the cougar's tenure at the Sasquatch Park facility, experienced personnel, such as Ms. Redding or Mr. Spencer, have daily contact with the cougar to insure that he is adequately cared for and that the facility, its owner and employees are being adequately trained in the care of the animal. In fact, it has been demonstrated that any additional contact with the cougar is not necessary to its welfare and, indeed, might be detrimental to it. Both Mr.

       Spencer and Ms. Redding have agreed to this arrangement, and it is practically capable of being fulfilled, especially with regard to Ms. Redding, because she only lives five minutes away from the facility and can visit the cougar and oversee its welfare on almost a daily basis. It has been demonstrated that, with the curatorship arrangements made by the applicant with Ms. Redding and Mr. Spencer, coupled with the applicant's own experience in maintaining and possessing many types of exotic and potentially dangerous animals, the Commission's interest in insuring the health and welfare of the cougar in question will be served by placing it at Sasquatch Park and that these arrangements most closely correlate with the evidence of record which establishes the manner and type of care a cougar needs on a daily basis when confined in such a facility.

       
       

   12. In this regard, somewhat parenthetically, it is noteworthy that the Commission's representative, in testifying in support of a four-hour-per-day standard for having experienced cougar husbandry personnel on the premises, also testified that that four hours per day for one year really equated to what was required, in his view, to train Mr. Mattox and establish him as the possessor of 1,000 hours minimum experience in cougar husbandry at the end of a year. Thus, that espoused "standard" actually is not really functionally related to the cougar's welfare or the interest of public safety.

       
       

   13. Finally, in assessing the Commission's stated concerns, it should be considered whether the cougar's present situation is preferable to that offered by Sasquatch Park. In Mr. Spencer's home, the cougar lives in a residence in the middle of a city, with many other people residing around it. Sasquatch, on the other hand, offers a rural, wooded setting which is sparsely populated, which equates to greater public safety in the unlikely event the cougar should escape. In Mr. Spencer's home,

       no one has been present for at least 9-1/2 hours per day, during the years he has kept the cougar. At Sasquatch, Mr. and Ms.

       Mattox live on the premises and are present with their employees everyday. Although Mr. Spencer and Ms. Redding were licensed under a different rule which concerns the keeping of Class II animals as personal pets, in assessing the level of care supposed to be provided the cougar, it is noteworthy that they obtained their licenses with absolutely no experience or training in the care of cougars. Mr. Mattox, on the other hand, has a Class I license; and the Commission has previously approved him for a Class II permit to keep a macaque, also an animal posing a potential threat to humans. Mr. Mattox has had years of experience in the husbandry of many exotic species. His practical qualifications, versus those of Mr. Spencer and Ms.

       Redding, are certainly substantial.

       
       

   14. Further, Sasquatch Park is a modern facility; and

       all cages and animal areas meet or exceed Commission requirements in terms of the animals' welfare and the safety of the viewing public. There is a staff veterinarian, who is on call on a 24- hour-a-day basis. With the arrangement with Ms. Redding, there will also be a curator available for the cougar, who has training in the veterinary care of animals, in addition to Dr. Hill.

       
       

   15. It has clearly been demonstrated that the Commission's interest in terms of public safety and the welfare of the animal in question will be well-served by placing the cougar at Sasquatch Park. It is, thus, found that the Commission's interpretation of the rule and the manner it seeks to apply that interpretation to the instant factual situation, established by the unrefuted evidence, is not reasonably related to the public safety or to the type, level and manner of care which is required for the cougar's well being, which two considerations are, as shown by the Commission's own witness, the primary intent of the subject experience rule. That being the case, the espoused interpretation by the Commission's witness of what is meant by the experience requirement in the rule is not reasonably related to the proven intent and purpose of the rule.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

       
       

   17. Rule 39-6.0022(5)(c)1 provide pertinently as follows:

       
       

       1. All applicants to possess Class I or Class II wildlife shall qualify for issuance of a permit by meeting the following criteria:

          1. Experience requirement:

             1. Applicant shall demonstrate no less than (1) one year of substantial practical experience (to consist of no less

                than 1,000 hours) in the care, feeding, handling, and husbandry of the species for which the permit is sought,

                
                

                As a threshold consideration, the Commission has chosen to interpret this rule to mean that the applicant himself or herself need not have the required experience so long as the entity or business, on whose behalf the applicant is applying for the permit, employs personnel who have the requisite experience in husbandry of the species involved. That is a reasonable interpretation of the rule since, if applicants were solely required to have the requisite experience in their own right, such would likely result in limiting those capable of entering the business of possessing and displaying Class II wildlife to those persons who had already been in that business or who had garnered the experience through keeping the animals as personal pets. Such a rote interpretation of the rule would be unreasonably restrictive and contrary to the apparent intent of the legislature in providing for the permitting system in Chapter 372, Florida Statutes.

                
                

   18. The Commission has, however, gone beyond the intent and purpose of the subject rule when it reads into the rule provision a requirement that personnel with the required experience be on the premises with the Class II animal on a "full-time basis". For one thing, the rule contains no time standard for experienced personnel being on the premises once one accepts the Commission's interpretation that the qualified personnel do not have to be the applicant himself or herself. Because no time standard for the presence of experienced personnel is mentioned in the rule, there obviously is no definition of "full-time" in the rule. Likewise, the Commission's "compromise position", for purposes of this proceeding, that it interprets the rule to require at least four hours per day presence of such experienced personnel, is likewise not provided for in the rule. That was shown by the proof herein to bear no reasonable relationship to furtherance and protection of the two key interests which the Commission's representative testified were central to the intent behind the rule, that is, the interest of protecting public safety when the public comes in proximity of a Class II animal, such as a cougar, and the interest of protecting the physical and emotional welfare of the animal itself.

       
       

   19. There is no dispute that, given the design and operation of the Sasquatch Park facility, the public safety is well-served by placing this cougar in that facility. Indeed, it is better served than with the cougar's present living arrangement. The enclosure and other facilities designed for the cougar, in fact, exceed the Commission's standards for keeping such animals. Moreover, the unrefuted evidence establishes that, in terms of the animal's physical and emotional welfare, a person in contact with and in the immediate presence of the animal for four hours per day is unnecessary and, indeed, might be detrimental to the animal's emotional and possibly physical health. Cougars are known to require feeding once per day or, at most, twice per day in the early morning and

       in the evening, shortly before dark, and to require a constant supply of water, which the applicant can provide by the Commission-approved watering device, which is available and installed. In consideration of this evidence, together with the evidence that a qualified veterinarian is on constant 24-hour call; that two persons with at least five-years experience in the husbandry of cougars are readily available to oversee the welfare of the animal; and in further consideration of Ms.

       Redding's own experience in caring not only for cougars but for other animals in her capacity as a veterinarian's assistant, it is deemed that the particular circumstances by which the applicant has obtained the services of personnel who meet the rule's experience standard adequately meet the Commission's interests, and the intent of the subject rule, related to concern for the animal's welfare and public safety.

       
       

   20. The unrefuted evidence and the above findings of fact demonstrate that, should the Commission interpret and apply the rule to this situation in terms of there being a certain minimum daily time requirement for experienced personnel to be present at the facility, on the order of four hours or for a full working day, such a requirement would bear no reasonable relationship to the welfare of the cougar nor the safety of the viewing public, which are the two bellwether interests behind the enactment of the rule in the first place. Therefore, if the Commission, by Final Order, continued to espouse that position in deciding to deny this permit, such would work an arbitrary, unreasonable result because it would be predicated upon an interpretation of the subject rule which is not in accord with the intent underlying the rule, which intent was established by the Commission's own witness, Captain Thompson.

       
       

   21. Accordingly, having considered the totality of the unrefuted evidence of record, which supports the above Findings of Fact, it has been established that experienced personnel have shown to be sufficiently, readily available. When that circumstance is considered in conjunction with the undisputed showing that the facility, the other employees and the manner of the facility's physical operation will further the public's safety in viewing the cougar, it has been satisfactorily demonstrated that the Commission's interests in carrying out the rule to insure the safety and welfare of the animal will also be well-served. Thus, under the arrangement proven by the applicant, involving inter alia, the on-call availability of Ms. Redding and Mr. Spencer as "curators" of the cougar's welfare, it has been established that sufficient, experienced personnel will be available to comport with the intent of the rule and, therefore, that the permit should be granted.

RECOMMENDATION

Having considered the foregoing findings of fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is therefore

RECOMMENDED:

That a Final Order be entered by the Respondent granting the application of the Petitioner, Leonard M. Mattox, for a Class II wildlife permit authorizing the possession and display of cougars at his Sasquatch Park facility.

DONE and ENTERED this 13th day of November, 1990, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1990.

APPENDIX

Petitioner's Proposed Findings of Fact

The Petitioner filed no separately stated findings of

fact but rather, filed a memorandum containing factual and legal argument inseparably intertwined. Thus, no separately stated discreet findings of fact are available to be specifically ruled upon, although the subject matter raised in each of the paragraphs of the Petitioner's memorandum have been dealt with and addressed in this recommended order.

Respondent's Proposed Findings of Fact

1. Accepted

2. Accepted

3. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as immaterial, inasmuch as the subject rule was amended during the pendency of this proceeding. See Turro v. DHRS, et al., 458 So.2d 345 (Fla. 1st DA 1984).

4. Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter and in fact immaterial in light of the Commission's own interpretation of the meaning of the experience requirement of the subject rule.

5. Accepted, but the first sentence is immaterial.

6. Accepted.

7. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

8. Accepted.

9. Accepted.

10. Accepted, but the first sentence is immaterial and the proposed finding of fact is subordinate to the Hearing Officer's findings of fact on the subject matter.

11. Accepted only insofar as it demonstrates what the agency's interpretation of the subject experience requirement in the rule consists of, but otherwise subordinate to the Hearing Officer's findings of fact on the subject matter.

COPIES FURNISHED:

Colonel Robert H. Brantly Executive Director

Game and Fresh Water Fish Commission

Bryant Building

620 South Meridian Street Tallahassee, FL 32399-1600

James Antista, Esq.

General Counsel

Game and Fresh Water Fish Commission

Bryant Building

620 South Meridian Street Tallahassee, FL 32399-1600

John C. Harrison, Esquire

12 Old Ferry Road Shalimar, FL 32579

James T. Knight, III, Esquire Assistant General Counsel

Florida Game and Fresh Water Fish Commission

620 S. Meridian Street Tallahassee, FL 32399-1600

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

FLORIDA GAME AND FRESH WATER FISH COMMISSION

LEONARD M. MATTOX,

Petitioner,

vs. CASE NO 90-0031

GAME AND FRESH WATER FISH COMMISSION,

Respondent.

/

FINAL ORDER

This matter comes before the Commission for the entry of a Final Order. On November 14, 1990, Hearing Officer P. Michael Ruff of the Division of Administrative Hearings entered his Recommended Order in this proceeding, a copy of which is attached hereto and incorporated by reference herein as Exhibit A. No exceptions to the Recommended Order have been filed.

This proceeding concerns whether Leonard M. Mattox, the Petitioner, or his business entity, Sasquatch Park, is qualified under provisions of Rule 39-6, Florida Administrative Code, for a permit to possess a cougar (felis concolor).

Findings of Fact

Findings of Fact 1 through 15 of the Hearing Officer's Recommended Order are hereby adopted and incorporated herein by exception as modified herein.

Finding of Fact 2 is adopted but it is further found that Rule 39-6.0011, F.A.C., was amended not only subsequent to the applications for permit and upgrade of permit but was amended subsequent to the Commission's letter of denial of permit. The record reflects that the denial letter was issued on November 17, 1989, and the amendment to Rule 39-6.0011, F.A.C. (now codified as Rule 39-6.0022, F.A.C.), was filed with the Bureau of Administrative Code on March 27, 1990, and became effective on July 1, 1990

Finding of Fact 12 is modified herein. To the extent that Finding of Fact

12 states that the Commission's policy which requires the person(s) with the requisite experience to be on site at the subject facility at least four hours per day is not functionally related to the cougar's welfare or the interest of public safety, it is rejected for two reasons: First, the determination whether "on-site presence" of the caretaker is a policy which is "functionally related" to the welfare of animals and to the protection of public safety is a conclusion of law within the province of the agency; secondly, the record evidence does not support the general assertion that "on site" presence of the caretaker is

unrelated to the welfare of the animal or public safety; rather the testimony suggests that such on site support is not necessary in every case, particularly in this case.

Finding of Fact 13 is modified herein. To the extent that the Hearing Officer found that the standard or criteria is the same for determining qualification to hold Class II animals as personal pets and for purposes of public exhibition or display, this finding is rejected for-two reasons: First, the finding is actually a conclusion of law; secondly, no record evidence supports that such the standard is the same for both situations or should be the same.

Conclusion of Law

1. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

   
   

2. The Conclusions of Law of the Recommended Order are hereby adopted and incorporated by reference herein except as rejected or modified as set forth below:

   
   

3. The Hearing Officer has incorrectly applied Rule 39- 6.0022, F.A.C., to the issue of whether Leonard Mattox or his business entity, Sasquatch Park, qualified for a captive wildlife permit to possess a cougar (felis concolor) at the Sasquatch Park facility. Rule 39-6.0022(5)(c)1, F.A.C., has no applicability to the application for permit before the Commission in this proceeding. Rule 39-6.0022, F.A.C., was filed for adoption with the Bureau of Administrative Code on March 27, 1990, and did not become effective until July 1, 1990. The rule made several substantive changes to the criteria for a permit to possess class II wildlife, criteria which, heretofore, had been prescribed under Rule 39-6.0011, F.A.C.. The "new" rule shortened the experience requirement to one year, but, described the nature of experience and the documentation requirements in greater detail and depth. The changes brought by the "new" rule must be characterized as substantive.

As a general rule of law, a statute (or rule) is prospective in nature, that is, does not apply retroactively unless the statute or rule is expressly intended to be retroactive in operation, or if the statute or rule is procedural or remedial in nature. American Motors Corp. v. Abrahantes, 474 So.2d 271 (Fla. 3rd DCA 1985); 49 Florida Jurisprudence, 106-108. In this case, there is no evidence in Rule 39-6.0022, F.A.C., that the rule would operate retroactively to applications for captive wildlife permits issued prior to the effective date of the rule. Accordingly, there is no legal authority to apply Rule 39-6.0022, F.A.C., to the application in this case.

The Findings of Fact in this case would support, and the Commission therefore concludes, that Bobby Spencer and Pauline Redding possess the requisite experience under former Rule 39- 6.0011(8)(b), F.A.C., in the husbandry, that is, the care and handling and cultivation of a cougar. The record would also support, and the Commission concludes, that Mr. Spencer and Ms. Redding possess the requisite experience required under the present Rule 39- 6.0022(5), F.A.C., where that rule is applicable to this case.

However, it is rejected, as conclusions of law, that the "on-site" presence of a caretaker is not functionally related to the welfare of an animal or to the protection of public safety and that the standards for judging qualifications to

keep Class II animals as personal pets and for public exhibition and display are, or should be the same. It is concluded that the presence of the caretakers full time or four hours per day is not necessary or required in this case and further concluded that adequate care of the cougar "Micah" and protection of the public can be achieved at the facility under the care of Mr. Spencer and Ms.

Redding under the following special permit conditions: 1) Mr. Spencer and Ms. Redding shall be identified on the permit as the primary caretakers of the cougar; 2) The permittee shall submit to the Commission evidence of an employment contract or relationship with Mr. Spencer and Ms. Redding for the purpose of providing for the care, handling and husbandry of the cougar; 3) Mr. Spencer or Ms. Redding shall be present at the Sasquatch Facility on a daily basis for the first 30 days of the cougar's confinement there to assure the adequate adjustment of the cougar to this facility.

Conclusion

On the basis of the foregoing, it is hereby ORDERED that, as modified in accordance herewith, a permit be issued to Leonard M. Mattox and Sasquatch Park to possess a cougar (felis concolor) at said facility, in accordance to the permit and any special conditions prescribed herein and in accordance with Rule 39-6, F.A.C. A copy of said permit, as modified in accordance with this Final Order, is attached hereto and incorporated herein by reference as Exhibit B.

DONE AND ORDERED this 4th day of February, 1991, in Tallahassee, Florida.

Colonel Robert M. Brantly Executive Director

Florida Game and Fresh Water Fish Commission

620 South Meridian Street Tallahassee, FL 32399-1600

(904) 487-1764

Notice of Appeal Rights

Any party to this Final Order has the right to seek judicial review of same pursuant to 120.68, F.S., by filing a Notice of Appeal pursuant to Fla. R. App.

P. 9.110 with the Agency Clerk, Florida Game and Fresh Water Fish Commission, 620 South Meridian Street, Tallahassee, Florida 32399-1600, and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fee, with the appropriate District Court of Appeal. The Notice of Appeal must be filed with thirty (30) days from the date this Order is filed with the Agency Clerk.

FILED with the Agency Clerk and copies furnished to the following

addresses this 4th February, 1991

Office of the General Counsel

Florida Game and Fresh Water Fish Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600

P. Michael Ruff, Hearing Officer Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

John C. Harrison, Esquire

12 Old Ferry Road Shalimar, Florida 32579

AMENDMENT TO PERMIT TO POSSESS WILDLIFE FOR EXHIBITION OR PUBLIC SALE

Mr. Leonard M. Mattox Sasquatch Canoes, Inc. Route 1, Box 500 Crestview, FL

day of

This is to authorize you to possess one cougar (Felis concolor) for the purpose of exhibition at Sasquatch Canoes, Inc., Route 1, Box 500, Crestview, FL (seven miles east of Crestview on U.S. Highway 90), in accordance with the following restrictions and conditions:

1. This amendment must be attached to the Permit to Possess Wildlife for Exhibition or Public Sale (Permit #EPB 1170) that is presently issued to Sasquatch Canoes, Inc. and subsequent permit renewals.

2. Mr. Bobby E. Spencer or Ms. Pauline Redding must be present at the Sasquatch facility on a daily basis for the first 30 days of the cougar's confinement to assure the adequate adjustment of the cougar to this facility.

   
   

3. A ledger must be maintained at the facility to be used for the date, time and signature of Mr. Spencer and/or Ms. Redding upon arrival and departure from the facility.

   
   

4. You must submit evidence of an employment contract or relationship with Mr. Spencer and Ms.. Redding to the Commission for the purpose of providing for the care, handling and husbandry of the cougar.

   
   

5. For purposes of this amendment, Mr. Bobby E. Spencer and Ms. Pauline Redding are designated as primary caretakers for the cougar.

By: Colonel Robert M. Brantly Executive Director

cc: Colonel Robert L. Edwards Lt. Colonel Bob Ellis Major Ronald Walsingham Lieutenant Bruce Cockcroft

Docket for Case No: 90-000031

Orders for Case No: 90-000031