STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, GAME AND ) FRESH WATER FISH COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4761

)

BOBBY F. STEELE, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on September 12, 1991, in Ocala, Florida. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: James T. Knight, III, Esquire

Assistant General Counsel Florida Game and Fresh Water

Fish Commission

620 S. Meridian Street Tallahassee, Florida 32399-1600

For Respondent: Don Gleason, Esquire

307 Northwest 3rd Street Ocala, Florida 32670

STATEMENT OF ISSUES

The issues concern an Administrative Complaint drawn by Petitioner against Respondent calling for the revocation of his permit to display and sell captive animals. See Section 372.921, Florida Statutes, and Rule 39-5.004, Florida Administrative Code.

PRELIMINARY STATEMENT

The Administrative Complaint as amended asks that the Respondent's wildlife permit to hold wild animals in captivity be revoked. The Motion to Amend was granted at the commencement of the hearing. The present permit runs from July 1, 1991 through June 30, 1992.

To further the prosecution, Petitioner presented the testimony of John Moran, Barry Cook and Jerry Thompson. Ten exhibits were offered. All were admitted, excepting Exhibit 3. Ruling was reserved on its admission. Having considered the matter, Petitioner's Exhibit 3 is denied admission. Respondent testified in his defense.

A transcript was prepared and filed with the Division of Administrative Hearings on October 10, 1991. As allowed, the parties filed proposed recommended orders on October 21, 1991. Those proposals have been considered in preparing the Recommended Order. The suggested fact finding set out in the proposals is commented on in the Appendix to Recommended Order.

FINDINGS OF FACT

1. For a number of years, Respondent has been permitted in Florida to keep captive wild animals for public display and sale in accordance with Section 372.921, Florida Statutes. Those animals were Class I and II animals as defined in Section 372.922, Florida Statutes, as well as unclassified animals. By species this included cougars, lions, tigers, jaguars, leopards, baboons, macaque monkeys, sheep and goats.

   
   

2. Now, based upon the Administrative Complaint of June 18, 1991, as amended, Petitioner would revoke the existing permit issued under Section 372.921, Florida Statutes, for the period July 1, 1991 through June 30, 1992. The basis for the Administrative Complaint pertains to alleged findings of guilt for 14 charges of the inappropriate confinement of animals without sufficient food dating from March 26, 1991 and four other instances of violation of captive wildlife laws which Petitioner says Respondent is answerable for beginning in February 1978. Under the circumstances and in accordance with review criteria set in Rule 39.5004, Florida Administrative Code, speaking to the propriety of revocation, Petitioner seeks revocation.

   
   

3. In the case of State of Florida v. Bobby Franklin Steele, No. 77-288MM, Sumter County, Florida, Respondent entered a plea of nolo contendere to maintaining wildlife in an unsafe manner and was adjudicated guilty, fined in the amount of $50 and placed on probation for 45 days. This plea was made on February 7, 1978. On that same date in Case No. 77-287MM in the same court, Respondent pled nolo contendere to failure to meet minimum requirements for captive wildlife for which he was found guilty, fined $50 and placed on probation for 45 days. These were wildlife violations within the meaning of Chapter 372, Florida Statutes, and its attendant rules of the Game and Fresh Water Fish Commission. The facts involved with those convictions pertain to Respondent's maintaining wildlife in his son's automotive mechanic and maintenance shop in cages build at one end of the building. The animals in question were cougars, tigers and monkeys. One cougar was leashed to an attachment to the wall, pipe or board, and was sitting on top of a table out of its cage when the violation was noted. This cougar in its location was considered to be unsafe for housing it in a potentially public place. The cougar is a Classs II animal.

   
   

4. When shown an abstract from the court files of Palm Beach County, Florida, pertaining to Case No. 79-1461MM A06, unlawful confinement in cage w/ failure to maintain minimum specification, violation date February 18, 1979, and Case No. 79-1459MM AO6, charge and disposition, same as the previous case, Respondent testified that he paid a $50 fine for these violations, and that testimony is credited. He identifies that the animals in question were trained animals that he worked with on a daily basis, including "Tom Tom", a cougar, a Giben ape and a zebra. These violations pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission.

   
   

5. In the case of State of Florida v. Bobby Franklin Steele, Sr., Case No. 78-325MM, Sumter County, Florida, on February 27, 1979, Respondent pled nolo

   contendere to maintaining wildlife in unsanitary and unsafe conditions and was adjudged guilty and paid a fine of $49. This violation pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission.

   
   

6. In the case of State of Florida v. Bobby Franklin Steele, Case No. 87- 000917-MMA, Seminole County, Florida, Respondent pled nolo contendere, on July 6, 1987, to violation of transportation requirements for wildlife and illegal possession of wildlife in captivity. He was adjudicated guilty, given a year of supervised probation and made to pay $75 in costs. These violations related to Chapter 372, Florida Statutes, and attendant rules of the Florida Game and Fresh Water Fish Commission. Factually, Respondent was stopped while transporting a male African lion in the passenger seat of an open convertible. The lion is a Class I animal. The lion was, according to Respondent, in the automobile because a photographer from an international magazine was doing an article to include a promotional photographic shoot. The lion had a harness with a leash which was entwined through the seatbelt of the car. Such an arrangement created a potential that the animal might escape and endanger the public if he chewed through the leash and seatbelt.

   
   

7. In 1987 in a court proceeding in Marion County, Florida, a guilty verdict was rendered against Respondent for the illegal transfer of a lion to an unlicensed person. The violation in Marion County pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission.

   
   

8. On March 26, 1991, in the case of State of Florida v. Bobby F. Steele, Case No. 90-2292MMGF, Lake County, Florida, Respondent was convicted of 14 counts of maintaining animals without sufficient food, fined $500 and placed on one year probation. As it pertains to that series of violations in March 1991 in Lake County, Florida, the animals involved in the 14 count conviction were 9 cougars, 3 bobcats, 1 lion and 1 tiger. By observations of Captain Barry Cook, an employee for Petitioner who has wildlife experience, the animals in question were malnourished to the extent that their ribs and other bones were protruding. An inspection of Respondent's premises where the animals were being maintained revealed that there was not sufficient food for the animals to the extent of not having enough food for one animal for one day. At the time that these observations were made about the animals' condition, Respondent told Captain Cook that Respondent was doing the best he could and it was an economic management related problem that caused the lack of food. Respondent did not mention that he had food available in another location. This latter statement made by Respondent at hearing and his contention that the animals were not malnourished do not suffice. Whether food was available in another location or not fails to excuse the condition of the animals which Captain Cook, in his experience, which is credited, observed to be a condition in the animals that was only exceeded in its gravity by one other case in Captain Cook's experience. The animals in question were removed by the United States Department of Agriculture, Animal and Health Inspection Service, who were present while Captain Cook inspected the Respondent's facility in the Summer of 1990.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

   
   

10. As stated, Petitioner seeks revocation of Respondent's permit to keep captive wild animals. See Chapter 373.921, Florida Statutes. The basis for the prosecution concerns the violations of Chapter 372, Florida Statutes, and

    attendant rules of the Game and Fresh Water Fish Commission as described in the fact finding. In determining the significance of those violations concerning the appropriateness of revoking the permit, resort is made to the following criteria set out in Rule 39-5.004(4), Florida Administrative Code:

    
    

    1. The severity of the offense;

    2. The danger to the public created or occasioned by the offense;

    3. The existence of prior violations of Chapter 372, F.S., or the rules of the Commission;

    4. The length of time the licensee or permittee has been licensed or permitted;

    5. The effect of revocation or non-renewal upon the licensee's or permittee's livelihood;

    6. Attempts by the licensee or permittee to correct or prevent violations, or the refusal or failure of the licensee or permittee to take reasonable measures to correct or prevent violations;

    7. Related violations by a licensee or permittee in another jurisdiction, including findings of guilt or innocence, penalties imposed, and penalties served;

    8. The deterrent effect of revocation or non-renewal;

    9. Any other mitigating or aggravating factors.

Having considered the violations in view of the criteria, revocation is appropriate.

RECOMMENDATION

Based upon the facts found and conclusions of law reached, it is hereby RECOMMENDED that a Final Order be entered which revokes the Respondent's

permit to keep wild animals in captivity for purposes of display or sale. See Section 372.921, Florida Statutes.

DONE and ENTERED this 12th day of November, 1991, in Tallahassee, Florida.

CHARLES C. ADAMS

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 12th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER

The following discussion is given concerning the proposed facts of the parties. Petitioner's facts:

1-12, 13 except last sentence--subordinate to facts found. That sentence is rejected as hearsay, not for purposes of corroboration.

14--subordinate to facts found.

15--rejected in that no official action was taken in Pennsylvania such that a conclusion could be reached that a violation had occurred in another jurisdiction.

16--rejected as an aggravating circumstance.

17--rejected in its discussion of borderline compliance or bare compliance. Any form of compliance is acceptable. It is only the unacceptable conduct which is punishable.

18--rejected as it attempts to create some inference concerning Respondent's conduct.

Respondent's facts:

1-4 and the first sentence of paragraph 5--are subordinate to facts found. The second sentence is rejected in its attempt to describe mitigation.

6--The discussion in the first sentence does not excuse Respondent's conduct. The latter discussion concerning the situation in Pennsylvania is not relevant for reasons described and discussed about proposed facts by the Petitioner.

7--The fact that an appeal is undertaken does not prohibit the use of that conviction in deciding the outcome here.

8--Revocation is a severe choice; however, it is warranted on this occasion.

COPIES FURNISHED:

James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water

Fish Commission

620 S. Meridian Street Tallahassee, FL 32399-1600

Don Gleason, Esquire

307 Northwest 3rd Street Ocala, FL 32670

Colonel Robert M. Brantly Executive Director

Florida Game and Fresh Water Fish Commission

620 S. Meridian Street Tallahassee, FL 32399-1600

James Antista 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. Some agencies allow a larger period within 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.

Docket for Case No: 91-004761

Orders for Case No: 91-004761