STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMANDA OBLOY,

Petitioner,

vs.

FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION,

Respondent.

/

Case No. 19-6302

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Garnett W. Chisenhall of the Division of

Administrative Hearings (“DOAH”) via video teleconference at sites in Daytona Beach and Tallahassee, Florida, on January 31, 2020.

APPEARANCES

For Petitioner: Michael R. Cook, Esquire

Michael Bross & Bryan Savy, PLLC 997 S. Wickham Road, Suite 1 West Melbourne, Florida 32904

For Respondent: Rhonda Parnell, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUE

Whether Petitioner’s application for a license to possess Class II wildlife for exhibition or public sale should be granted.

PRELIMINARY STATEMENT

The Florida Fish and Wildlife Conservation Commission (“the

Commission”) issued an “Amended Notice of Denial” on July 26, 2019, stating that Amanda Obloy’s application for a license to possess Class II wildlife for exhibition or public sale was being denied. As the basis for the denial, the Amended Notice of Denial stated that

[o]n September 24, 2018, Investigator Damon Saunders found you in possession of a Class II macaque monkey for which you do not hold the license or authorization to possess. The macaque was being housed in caging which did not meet the [Commission] requirements set forth in Rule 68A- 6.004(1), Florida Administrative Code (F.A.C.).

Ms. Obloy requested an administrative hearing, and the Commission referred this matter to DOAH on November 25, 2019. The undersigned issued a Notice on December 9, 2019, scheduling the final hearing to occur on January 31, 2020.

The hearing was convened as scheduled. Prior to receiving testimony, the undersigned addressed several preliminary matters. First, Ms. Obloy’s counsel noted that the Amended Notice of Denial had been preceded by a denial letter issued in January of 2019, denying Ms. Obloy’s application because she had allegedly submitted materially false information with her application. Because the Amended Notice of Denial did not incorporate by reference the aforementioned allegation, the undersigned ruled that the Commission’s basis for denial would be limited to the grounds set forth in the Amended Notice of Denial. See, e.g. State Farm & Cas. Co. v. Tippett, 864 So. 2d 31, 32 (Fla. 4th DCA 2003)(noting “[i]t is well-established that an amended pleading supersedes an earlier pleading unless it expresses an intent to preserve portions of the earlier pleading.”)

The Commission’s attorney responded to the aforementioned ruling by moving to dismiss the instant case because Ms. Obloy had not filed a request for hearing in response to the Amended Notice of Denial. The undersigned denied the Commission’s motion to dismiss. See Fla. Admin. Code R. 28- 106.204(2)(providing that “[u]nless otherwise provided by law, motions to dismiss the petition or request for hearing shall be filed no later than 20 days after assignment of the presiding officer, unless the motion is based upon a lack of jurisdiction or incurable errors in the petition.”).

Ms. Obloy’s counsel next argued that the Amended Notice of Denial was flawed because it alleged that Ms. Obloy illegally possessed a macaque monkey on September 24, 2018, when she had actually done so on September 21, 2018. Because there was no evidence that Ms. Obloy’s case had been prejudiced by the allegedly erroneous date, the undersigned ruled that the case could proceed based on the Amended Notice of Denial. See generally Fla. Bd. of Pharm. v. Levin, 190 So. 2d 768, 770 (Fla. 1966)(noting that “[t]echnical niceties based upon obvious mistakes and misreferences, which do not mislead or result in manifest unfairness are not grounds under our authorities for overturning administrative determinations.”); Jacker v.

Sch. Bd. of Dade Cty, 426 So. 2d 1149, 1150 (Fla. 3d DCA 1983)(noting that the allegations in an administrative charging document “need not be set forth with the technical nicety or formal exactness required of pleadings in court.”).

Because a court had entered a judgment of acquittal pertaining to the same allegations set forth in the Amended Notice of Denial, Ms. Obloy’s

counsel argued that res judicata prevented the Commission from basing its denial on those allegations. The undersigned rejected that argument. See generally Miami v. Babey, 161 So. 2d 230, 232 (Fla. 3d DCA 1964)(stating “it is immaterial to a proceeding of the nature here under review that the appellee was acquitted of a similar criminal charge in a court of law.

Although he was acquitted of the criminal charge, it would not necessarily follow that he should ipso facto be exonerated of administrative charges.”).

Finally, the Commission objected to Eric Obloy testifying, and the undersigned sustained that objection because Mr. Obloy was not disclosed as a potential witness in the parties’ joint pre-hearing stipulation as required by the Order of Pre-hearing Instructions. See generally Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037, 1038-39 (Fla. 4th DCA 2015)(stating that “[p]retrial stipulations prescribing the issues on which a case is to be tried are binding upon the parties and the court, and

should be strictly enforced.”).

Ms. Obloy presented testimony from herself and Damon Saunders.

Petitioner’s Exhibits 1 and 2 were accepted into evidence over relevance objections lodged by the Commission. The Commission presented testimony from Clint Deskins, and Respondent’s Exhibits 1 and 2 were accepted into evidence. The latter exhibit was accepted over objections based on hearsay and lack of completeness.

The final hearing Transcript was filed on February 14, 2020. Both parties filed timely Proposed Recommended Orders that were considered in the preparation of this Recommended Order.

Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida Statutes.

FINDINGS OF FACT

Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made:

The Parties

1. The Commission is the state agency with exclusive jurisdiction to regulate all wild animal life in Florida. See Art. IV, § 9, Fla. Const. All persons who possess captive wildlife for the purposes of public display or public sale must have a license from the Commission. See § 379.3761(1), Fla. Stat. (mandating that “[i]n order to provide humane treatment and sanitary surroundings for wild animals kept in captivity, no person, party, firm, association, or corporation shall have, or be in possession of, in captivity for the purpose of public display with or without charge or for public sale any wildlife, specifically birds, mammals, amphibians, and reptiles, whether native to Florida or not, without having first secured a permit from the [C]ommission authorizing such person, party, firm, association, or corporation to have in its possession in captivity the species and number of wildlife specified within such permit; however, this section does not apply to any wildlife not protected by law and the rules of the [C]ommission. No person, party, firm, association, or corporation may sell any wild animal life designated by [C]ommission rule as a conditional or prohibited species,

   Class I or Class II wildlife, reptile of concern, or venomous reptile in this state, including a sale with delivery made in this state, regardless of the origin of the sale or the location of the initial transaction, unless authorized by the [C]ommission.”); § 379.3762(1), Fla. Stat. (providing that “[i]t is unlawful for any person or persons to possess any wildlife as defined in this act, whether native to Florida or not, until she or he has obtained a permit as provided by this section from [the Commission].”). (emphasis added).

2. Florida Administrative Code Rule 68A-6.002(1)(a) specifies that Class I animals include 24 different species such as chimpanzees, gorillas,

   
   

   orangutans, baboons, leopards, jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and Komodo dragons. Rule 68A-6.002(1)(b) specifies that Class II animals include 38 different species such as howler monkeys, patas monkeys, macaques1, bobcats, wolves, wolverines, honey badgers, and alligators. Class II animals have the potential to cause harm but not to the extent of Class I animals. Rule 68A-6.002(1)(c) generally specifies that Class III animals include those not listed as Class I or II.

3. Ms. Obloy and her husband Eric are part owners of the Obloy Family Ranch, a 110-acre working farm with 40 different types of animals such as goats, pigs, and ducks. Ms. Obloy accepts and cares for animals that are dropped off at the Obloy Family Ranch.

4. Ms. Obloy has a Class III license that enables her to exhibit and sell any animals that are not Class I or II animals. Ms. Obloy filed an application in October of 2018 for a Class II license that would enable her to possess alligators.2

   The Commission’s September 21, 2018, Inspection

5. Someone left a monkey at the Obloy Family Ranch before September 21, 2018. Ms. Obloy is not an expert on primates and relied on information she found on the internet to conclude that this monkey was a Class III animal covered by her Class III license.

6. Damon Saunders has been employed by the Commission as a Captive Wildlife Investigator II since 2013. He inspects wildlife in Brevard, Indian River, and Osceola counties in order to ensure people have the proper permits and are using proper caging.

7. Mr. Saunders does not consider himself to be an expert on primates, and he has received no specific training on how to distinguish between

   
   

   
   

   1 The version of Florida Administrative Code Rule 68A-6.004(3)(c) in effect in September of 2018 required that cages for macaque monkeys must be 6 feet by 8 feet, and 6 feet high.

   
   

   2 When Ms. Obloy applied for a Class II license, the Obloy Family Ranch was known as Dolphin Paradise Tours.

   
   

   various primate species. However, during his tenure as a Captive Wildlife Investigator II, he has learned how to distinguish Class II primates from Class III primates.

8. For instance, Mr. Saunders testified that the term “old world monkeys” refers to monkeys indigenous to Europe, Asia, and Africa. According to

   Mr. Saunders, old world monkeys have downward facing noses, similar to those of humans. Old world monkeys are also similar to humans in that they have flat nails.

9. Mr. Saunders also testified that “new world monkeys’ are those indigenous to North, Central, and South America. In contrast to their old world counterparts, new world monkeys have nostrils that flair outward to the side, and they have claws rather than nails.

10. According to Mr. Saunders, virtually all old world monkeys are in Class II and most new world monkeys are in Class III. Mr. Saunders testified that there are 23 different subspecies of macaque monkeys, and all of them are Class II.

11. Mr. Saunders conducted periodic inspections of the Obloy Family Ranch from 2015 to 2019. On September 20, 2018, Mr. Saunders received information from an anonymous source that the Obloys were keeping a primate at their facility. The anonymous source also forwarded to

    Mr. Saunders a photograph, purportedly taken in the Obloy Family Ranch’s gift shop, of Ms. Obloy holding a monkey in her lap.

12. Mr. Saunders and two other Commission employees arrived at the Obloy Family Ranch on September 21, 2018, and obtained Mr. Obloy’s consent to enter the gift shop. Once inside the gift shop, Mr. Saunders heard a loud, shrill noise and cage rattling coming from a closed door behind the gift shop counter. Mr. Saunders then opened the door, entered a room that he estimated to be six feet by eight feet, and saw a monkey in what he described as a “parrot cage.” While Mr. Saunders did not provide an estimate of the aforementioned cage’s dimensions, he described it as “[a] bird cage, one that

    
    

    you would typically find a larger parrot in.” Because he had no doubt that the cage he observed did not satisfy the requirements for caging a Class II monkey, Mr. Saunders did not bother to measure its dimensions.3

13. Almost immediately upon seeing the monkey, Mr. Saunders determined that it was a macaque. He observed that the monkey appeared to be in good health and well fed. Mr. Saunders seized the monkey on September 21, 2018, and transferred it to a properly-licensed facility.

14. The Commission initiated criminal charges against Mr. and Mrs. Obloy for possessing Class II wildlife without a license and appropriate caging. As noted in the Preliminary Statement, the Obloys were acquitted. Ultimate Findings

15. Mr. Saunders has sufficient personal and professional experience and knowledge to identify a macaque monkey and to distinguish it from different species of monkeys. Mr. Saunders’ testimony is competent, substantial evidence that the monkey seized by the Commission on September 21, 2018, at the Obloy Family Ranch was a macaque monkey.

16. Mr. Saunders’ testimony is also competent, substantial evidence that the cage used to house the macaque monkey did not comply with the caging requirements for a Class II monkey.

17. The preponderance of the evidence demonstrates that Ms. Obloy possessed a Class II monkey without the appropriate licensure and that the cage used to house that monkey did not comply with the caging requirements for a Class II monkey. Ms. Obloy failed to prove that her husband had sole possession of the monkey.

    
    

    3 Mr. Saunders had no doubt that the cage was noncompliant because he estimated that the entire room was 6 feet by 8 feet, and the version of Florida Administrative Code Rule 68A- 6.004(3)(c) in effect in September of 2018 required that cages for macaque monkeys must be 6 feet by 8 feet, and 6 feet high.

    
    

    CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57, Florida Statutes.

19. As the applicant for a Class II permit, Ms. Obloy bears the burden of proving entitlement by a preponderance of the evidence. See Fla. Dep’t of Child. & Fams. v. Davis Family Day Care Home, 160 So. 3d 854, 856 (Fla. 2015); Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996).

20. The Commission has the burden of proving, by a preponderance of the evidence, that Ms. Obloy violated certain statutes and rules, and is thus unfit for a Class II permit. See Davis Family Day Care Home, 160 So. 3d at 856.

21. As noted above, the Commission proved by a preponderance of the evidence that Ms. Obloy possessed a Class II monkey without the appropriate licensure and that the cage used to house that monkey did not comply with the caging requirements for a Class II monkey set forth in the version of Florida Administrative Code Rule 68A-6.004(3)(c) that was in effect at the time of the application. Accordingly, the Commission correctly denied her application for a Class II license to possess Class II wildlife for exhibition or public sale. See Fla. Admin. Code R. 68-1.010(1)(e)(mandating that the Commission “shall deny applications for any license, permit or other

    authorization” based on a “[f]ailure by the applicant at any time to comply with chapters 369, 379 or 828, F.S., or the rules of the Commission . . .”).

22. Ms. Obloy’s attorney argued during the final hearing that

    Mr. Saunders needed to be qualified as an expert on primates before he could testify that the monkey he found at the Obloy Family Ranch on

    September 21, 2018, was a macaque monkey. However, it is well established that a lay witness can offer an opinion about a matter within that witness’s personal experience and knowledge. See R.C. v. State, 192 So. 3d 606, 611 (Fla. 2d DCA 2016)(holding that “Florida’s adoption of the Daubert standard has not changed the long-established rule that lay persons can identify

    
    

    marijuana – and some other illicit substances as well, e.g., cocaine and methamphetamine – based on their personal experience and knowledge. Such testimony is not admitted based on scientific expertise but instead based on the layman’s training and experience, for which a predicate establishing a

    sufficient degree of familiarity is sufficient.”); Jones v. State, 440 So. 2d 570, 574 (Fla. 1983)(rejecting an argument that a police officer could not offer an opinion that a mark on a window sill resulted from the recoil of a high- powered rifle because “[i]t was well within his realm of experience to offer the trier of fact his opinion as to this origin of the mark on the ‘stash house’

    window sill.”); Sajiun v. Hernandez, 226 So. 3d 875 (Fla. 4th DCA 2017)(holding that the trial court did not abuse its broad discretion in allowing a non-expert witness to testify about how quickly a motorcycle was traveling before an accident when that witness had operated motorcycles since 1980); Austin v. State, 199 So. 3d 327 (Fla. 3d DCA 2016)(holding that testimony from a crime scene investigator that pry marks left on a drawer could have been made by a screwdriver “has long been recognized as

    permissible lay testimony” based on the witness’s personal observation and general experience). See also § 120.569(2)(g), Fla. Stat. (providing in relevant part that “all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.”).

23. As for Mr. Saunders’ testimony regarding the dimensions of the cage in which he found the monkey, that testimony fell squarely within the permissible scope of a lay witness’s testimony under section 90.701, Florida Statutes. Bartlett v. State, 993 So. 2d 157, 164 (Fla. 1st DCA 2008)(stating that “[t]he scope of section 90.701 is usually limited to matters relating to distance, time, size, weight, form, and identity, which are easily observable.”). See also § 120.569(2)(g), Fla. Stat.

24. Finally, Ms. Obloy’s counsel argues in his Proposed Recommended Order that the monkey seized by the Commission belonged to Mr. Obloy

rather than Ms. Obloy. Thus, Ms. Obloy’s counsel asserts that the violations of section 379.3762(1) and rule 68A-6.004(3)(c) cannot serve as a basis for denying her licensure application. However, Ms. Obloy failed to prove that Mr. Obloy was the sole owner of the monkey. See Hess v. Philip Morris USA, 175 So. 3d 687, 695 (Fla. 2015)(noting that “[t]he defendant has the burden to prove an affirmative defense.”).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order denying Amanda Obloy’s application for a license to possess Class II wildlife for exhibition or public sale.

DONE AND ENTERED this 12th day of March, 2020, in Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 12th day of March, 2020.

COPIES FURNISHED:

Michael Bross, Esquire

Michael Bross & Bryan Savy, PLLC Suite 1

997 South Wickham Road

West Melbourne, Florida 32904 (eServed)

Michael R. Cook, Esquire

Michael Bross & Bryan Savy, PLLC Suite 1

997 South Wickham Road

West Melbourne, Florida 32904

Rhonda E. Parnell, Esquire

Florida Fish and Wildlife Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600 (eServed)

Eric Sutton, Executive Director

Florida Fish and Wildlife Conservation Commission Farris Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)

Emily Norton, General Counsel

Florida Fish and Wildlife Conservation Commission Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 19-006302

Orders for Case No: 19-006302