STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA GAME AND FRESH )

WATER FISH COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2604

)

BRIAN BUSBY, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on September 15, 1995, in Inverness, Florida.

APPEARANCES

For Petitioner: James T. Knight, III, Esquire

Florida Game and Fresh Water Fish Commission

620 South Meridian Street Tallahassee, Florida 32399-1600

For Respondent: Fred Ohlinger, Esquire

107 South Pine Avenue Inverness, Florida 34452

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed the offenses set forth in the administrative complaint, and, in that event, what disciplinary action should be imposed with regard to Respondent's Alligator Farming Permit.

PRELIMINARY STATEMENT

By correspondence dated April 4, 1995, Petitioner's representative informed Respondent that revocation of Petitioner's Alligator Farming Permit was contemplated as a result of Respondent's no contest plea to certain criminal charges. The correspondence informed Respondent of his right to request formal administrative proceedings.

By correspondence dated April 25, 1995, counsel for Respondent requested a formal hearing pursuant to Section 120.57, Florida Statutes. Subsequently, the matter was transferred to the Division of Administrative Hearings on May 22, 1995, for the conduct of formal proceedings.

At the final hearing, Petitioner presented the testimony of four (4) witnesses and four (4) exhibits. Respondent presented the testimony of five (5) witnesses, including himself, and one (1) composite exhibit.

A transcript of the final hearing was filed with the Division of Administrative Hearings on October 11, 1995. The parties requested and were granted leave to file proposed recommended orders more than ten (10) days after the filing of the transcript.

The proposed findings of fact contained in those proposed recommended orders submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Brian Busby.

   
   

2. Since 1988, Respondent has been involved in the business of alligator farming pursuant to licensure afforded him by Petitioner.

   
   

3. Petitioner is the Florida Game and Fresh Water Fish Commission. In addition to regulation of wildlife, Petitioner also regulates alligator farming. Petitioner's regulatory framework with regard to alligator farming is designed to protect wild alligator populations from being plundered to supplement or replace alligator farm inventories.

   
   

4. On February 27, 1995, Respondent entered a no contest plea in the Circuit Court of Citrus County, Florida, to one felony count of illegally taking a wild alligator in violation of Section 372.663, Florida Statutes.

   
   

5. As established by testimony received at the final hearing in this cause, Respondent's complicity in the killing of the wild alligator, which resulted in the felony charge against him, was substantial. He was observed by law enforcement officials to have actively participated in the unlawful killing of the alligator, specifically cutting the alligator's spine with a knife after helping to pull the harpooned alligator from a pond into a boat occupied by Respondent and two other individuals.

   
   

6. Later, on March 3, 1995, and as the result of unrelated charges, Respondent entered no contest pleas in the County Court of Citrus County, Florida, to misdemeanor offenses. Those charges involved alleged violations of Petitioner's rules, discovered during an inspection of Respondent's alligator farming facility by Petitioner's agents. The charges concerned Respondent's failure to maintain an accurate record of alligator inventory and failure to maintain sanitary conditions on the alligator farm.

   
   

7. As established by Respondent's own admission at the final hearing, he failed to maintain accurate inventory records of the alligators in some enclosures at his alligator farm. Other testimony establishes that inventory discrepancies in individual pens and enclosures were numerous, and that the number of alligators in some instances exceeded tolerance levels permitted by Petitioner's administrative rules.

   
   

8. Respondent's explanation at the final hearing for the admitted unsanitary conditions existing at his alligator farm at the time of inspection as being the total result of recent feeding of the alligators and prevailing wet weather conditions is not credited in view of the demeanor of the witness; the

   advance warning of the inspection provided him by Petitioner's representatives; and the issuance of previous warnings and "admonishment letters" to Petitioner with respect to conditions at his facility.

   
   

9. In both the circuit and county court proceedings, adjudication of guilt was withheld upon entry of Respondent's pleas with penalties in the form of either fines, community service or jail time imposed.

   
   

10. On April 4, 1995, Petitioner issued its Administrative Complaint, citing Respondent's charged criminal violations and no contest pleas. The Administrative Complaint also set forth Petitioner's reasoning and subsequent preliminary decision to revoke Petitioner's Alligator Farming Permit, Alligator Farming License, and Alligator Processing Facility Permit.

    
    

11. Consistent with its rules, Petitioner reached its preliminary decision after consideration of Respondent's felony offense of illegal taking of an alligator, a serious crime made even more egregious when committed by one involved in regulated alligator farming; Respondent's lengthy history of experience in alligator farming and resultant knowledge of prohibitions against taking alligators in the wild; the hope that revocation of Respondent's license would send a message to other alligator farmers, conservationists and the public regarding Petitioner's lack of tolerance of such illegal acts; and the belief that Respondent's illegal action justified any negative consequences to Respondent's livelihood resulting from license revocation.

    
    

12. Petitioner's decision to revoke Respondent's license also included secondary considerations that a rifle was involved in the incident and was fired on open water by one of the three individuals in the boat; that prior warnings were issued to Respondent by Petitioner's representatives for Respondent's possession of an untagged alligator carcass and alligator heads; and that prior warnings had been issued to Respondent for failure to maintain accurate alligator farm inventory records and proper population levels to prevent overcrowding of captive alligators.

    
    

13. Respondent had not, prior to the criminal offenses upon which this proceeding is based, been charged with a criminal offense in the State of Florida. A previous conviction of a wildlife offense in the State of Michigan occurred approximately 20 years ago.

    
    

14. By request dated April 24, Respondent sought and was granted entry by Petitioner to administrative proceedings for the purpose of disputing material factual allegations of the Administrative Complaint.

    
    

15. Upon submission by Respondent of an executed application form, indicating no history of criminal convictions, and an application fee to Petitioner, Respondent was issued an Alligator Farming License by Petitioner bearing an approval date of July 7, 1995, subject to expiration 12 months from the date of issuance.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

17 Respondent suggests that Petitioner's issuance of an Alligator Farming License to Respondent on a date subsequent to the filing of the Administrative Complaint negates the agency's proposed license disciplinary action. Considered

in context of Respondent's long standing licensure status, the license issuance of July 7, 1995, is deemed a mere ministerial act without impact on the contemplated disciplinary action.

1. Petitioner's Rule 39-5.004(4), Florida Administrative Code, provides in pertinent part that "[a] plea of nolo contendere shall be considered a conviction for purposes of disciplinary action imposed under ch. 372, F.S., and rules of the commission."

   
   

2. Respondent's position that his no contest pleas to criminal charges should be considered pleas of convenience and should be disregarded in the disposition of this matter, has been considered. However, the proof presented at the final hearing is overwhelming and establishes Respondent's guilt in actively participating in the illegal taking of the wild alligator and the commission of the charged misdemeanor offenses, all contrary to law.

   
   

3. Respondent's violation of the proscription against illegal alligator taking, set forth in Section 372.663, Florida Statutes, is a serious felony offense and particularly offensive for the holder of a license to operate an alligator farm in view of Petitioner's need to protect wild alligator populations from being used to cure deficiencies in domestic alligator farm inventories.

   
   

4. Rule 39-5.004(3)(a)-(e), Florida Administrative Code, requires that licensees of Petitioner must maintain correct records in accordance with regulations; must submit correct reports; must open records to inspection; must fully comply with license conditions; and must fully comply with requirements of Chapter 372, Florida Statutes.

   
   

5. Failure of a licensee to comply with any one of the requirements expressed in Rule 39-5.004(3)(a)-(e), Florida Administrative Code, is a sufficient basis for license suspension, revocation, or denial of renewal. Rule 39-5.004(4), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered revoking Respondent's Alligator Farming Permit, Alligator Farming License, and Alligator Processing Facility Permit.

DONE and ENTERED in Tallahassee, Florida, this 21st day of November, 1995.

DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings

1.-5. Adopted in substance, not verbatim.

6.-9. Rejected, subordinate to HO findings and cumulative. 10.-15. Adopted in substance, not verbatim.

Respondent's Proposed Findings

1.-8. Adopted in substance, not verbatim.

9. Rejected, not materially dispositive. 10.-15. Rejected, subordinate to HO findings.

16. Adopted by reference.

17.-18. Rejected, subordinate to HO findings.

19. Rejected, not supported by the weight of the evidence, subordinate.

20.-21. Rejected, relevance.

22.-23. Rejected, credibility, weight of the evidence.

COPIES FURNISHED:

James T. Knight, III, Esquire Florida Game and Fresh

Water Fish Commission 620 South Meridian Street

Tallahassee, FL 32399-1600

Fred Ohlinger, Esquire

107 South Pine Avenue Inverness, FL 34452

Allan L. Egbert, Ph.D Executive Director Florida Game and Fresh

Water Fish Commission 620 South Meridian Street

Tallahassee, FL 32399-1600

James Antista, Esquire Florida Game and Fresh

Water Fish Commission 620 South 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: 95-002604

Orders for Case No: 95-002604