DONALD SMITH,
Petitioner,
vs.
FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION,
Respondent.
/
Case No. 20-1510
RECOMMENDED ORDER
The final hearing in this matter was conducted before J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2020),1 on September 15, 2020, by Zoom video conference in Tallahassee, Florida.
APPEARANCES
For Petitioner: Peri E. Sedigh, Esquire
Sedigh Law
2443 Grandview Avenue
Sanford, Florida 32771
For Respondent: Rhonda E. Parnell, Esquire
Florida Fish and Wildlife Conservation Commission 620 South Meridian Street
Tallahassee, Florida 32399
STATEMENT OF THE ISSUE
Whether grounds exist to deny Petitioner's Class III Personal Use Application, which would allow him to personally possess a capuchin monkey.
1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
PRELIMINARY STATEMENT
On July 16, 2018, Petitioner submitted a Class III Personal Use Application and Questionnaire to Respondent, the Florida Fish and Wildlife Conservation Commission (the "Commission"), seeking "authorization to maintain" a black-capped capuchin monkey.
On January 8, 2019, the Commission issued a Notice of Denial letter denying Petitioner's application. The Commission's letter stated that it believed that Petitioner had falsified documentation of his experience, as well as a letter of reference.
Respondent challenged the Commission's action by timely filing an Election of Rights form on or about February 18, 2020, requesting an administrative hearing. On March 24, 2020, the Commissioner referred this matter to the Division of Administrative Hearings ("DOAH") for assignment of an Administrative Law Judge ("ALJ") to conduct a chapter 120 evidentiary hearing.
The final hearing was held on September 15, 2020. At the final hearing, Petitioner testified on his own behalf. Petitioner also called Yvonne Robertson and Yvette Hicks to testify. The Commission called Erika Zimmerman and John Conlin as witnesses. The Commission's Exhibits 1 through 7 were admitted into evidence.
A two-volume Transcript of the final hearing was filed with DOAH on November 18, 2020. At the close of the hearing, the parties were advised of a ten-day timeframe following DOAH's receipt of the hearing transcript to file post-hearing submittals. At the final hearing, the Commission requested an
extension of the filing deadline, which was granted.2 Both parties timely submitted Proposed Recommended Orders, which were duly considered in preparing this Recommended Order.
FINDINGS OF FACT
The Commission is the state agency that exercises regulatory and executive powers with respect to wild animal life, fresh water aquatic life, and marine life within Florida. Art. IV, § 9, Fla. Const. The Commission is also responsible for promulgating rules regarding wild animal life in the state. § 379.1025, Fla. Stat.
Petitioner desires to "personally possess" a capuchin monkey named "Roxy." To do so, Petitioner must first obtain a Class III captive wildlife pet permit from the State of Florida.
As a brief background, Roxy currently belongs to identical twin sisters, Yvonne Robertson, née Hicks, and Yvette Hicks. The Hicks sisters obtained Roxy as a baby in 2006, when they lived in West Virginia. The twins quickly grew enamored with Roxy, and adopted five more capuchin monkeys over the next few years.
In 2013, the sisters moved to Florida. They bought a house in Sebring with enough property to construct a large habitat, which would enable their growing "troop" of monkeys to enjoy a healthy lifestyle in a more natural environment.
Upon arriving in Florida, both sisters sought the required licenses to possess their animals. Yvonne Robertson applied for, and received, a Class III permit from the Commission. Yvette Hicks applied for, and received, the corresponding permit from the U.S. Department of Agriculture. The sisters now own and house 14 capuchin monkeys on their property.
2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla.
Admin. Code R. 28-106.216(2).
After establishing their residence, the Hicks sisters formed the business "Twins & Jungle Friends." Soon thereafter, they began showing their capuchin monkeys at a variety of events across the state.
The "Twins & Jungle Friends" dynamic changed slightly in 2015, when Yvette Hicks met Petitioner. Yvette and Petitioner swiftly developed, and are currently enjoying, a serious personal relationship. At first, Petitioner moved into the sisters' house to help the twins care for their monkeys. The monkeys quickly took to Petitioner, and he became involved in every aspect of nurturing and raising the animals. Petitioner formed an especially close bond with the twins' oldest capuchin monkey, Roxy.
As more fully discussed below, in early 2018, Petitioner and Yvette Hicks decided to move to Petitioner's home. Petitioner also desired for Roxy to come live in a habitat he built in his backyard. For authorization to keep Roxy at his house, Petitioner was required to apply for a Class III wildlife pet permit from the Commission.3 See §§ 379.3761 and 379.3762, Fla. Stat., and Fla. Admin. Code R. 68A-6.003(5) and 68A-6.004(3). Accordingly, on July 16, 2018, Petitioner submitted to the Commission a Class III Personal Use Application and Questionnaire (the "Application") for "One Black Capped Capuchin Monkey (Sapajus Apella)."
Pursuant to Florida Administrative Code Rule 68A-6.004(3)(c), to receive a Class III permit for a capuchin monkey, Petitioner is specifically required to meet the age, experience, and examination requirements for authorization to possess Class II wildlife as set forth in rule 68A-6.004(2)(d). Rule 68A-6.004(2)(d) requires applicants to document one year of experience, to consist of no less than 1,000 hours, "in the care, feeding, handling, and
3 The Commission, by rule, has established three categories, or "Classes," of captive wildlife in Florida. Class I includes animals that pose a significant, potentially lethal, risk to public safety, including lions, tigers, and bears. Class II includes animals that are capable of inflicting serious bodily harm, such as alligators, coyotes, and ostriches. Class III encompasses all other wildlife (including capuchin monkeys) not listed in Class I or II. See Fla. Admin. Code Rule 68A-6.002.
husbandry of the species for which the permit is sought." See Fla. Admin. Code R. 68A-6.004((2)(c)1. Further, the documentation must include references of at least two individuals who have personal knowledge of the applicant's experience. Fla. Admin. Code R. 68A-6.004(2)(c)2.c.
Petitioner, to demonstrate that he met the experience requirement, included two documents with his Application, which became the focus of the Commission's decision to deny Petitioner a permit to possess Roxy. The first document is an 11-page Documentation of Experience form (downloaded from the Commission's website), which records all the hours Petitioner worked in the "care, feeding, handling and husbandry" of capuchin monkeys from October 22, 2016, through February 11, 2018. The form reported that Petitioner worked eight hours a day with capuchin monkeys for approximately 8 to 10 days each month during that time period. Supporting this form is a typed letter describing the different entries written in the Documentation of Experience form, and bears the signature "Yvonne Hicks." (Yvonne Robertson's maiden name.) The letter represents that Petitioner has conducted all of his hours of experience under the supervision of Yvonne Hicks (Robertson), who holds an active Class III license from the Commission to possess capuchin monkeys.
The second document is a separate letter of reference, also signed "Yvonne Hicks," which states:
I Yvonne Hicks have witnessed [Petitioner take] care of many of our primates. He is very knowledgeable on the feeding caring and medical maintenance of the monkeys. He has also been part of our traveling entertainment business since October 2016. He will provide a very safe and loving home for primates.
The Commission denied Petitioner's Application in a Notice of Denial letter, dated January 8, 2019. In its letter, the Commission stated that its decision was due to the following:
Within your application … you submitted documented hours … under the supervision of license holder, Yvonne Hicks, along with a letter of reference from Ms. Hicks. … [However,] Ms. Hicks informed Investigator Zimmerman both the hours and the letter submitted to the Captive Wildlife Office had been falsified.
For legal support, the Commission based its denial decision on rule 68- 1.010(1), which directs that the Commission "shall" deny an application based on the following grounds:
Submission by the applicant of false, misleading, or inaccurate information in the application or in any supporting documentation provided by the applicant or on behalf of the applicant relating to the license ..."
In short, the Commission alleges that Petitioner falsified his Application by intentionally misrepresenting, if not forging, information submitted with his Application regarding his experience working with capuchin monkeys.
To expound on the basis for its decision, at the final hearing, the Commission offered the testimony of Erika Zimmerman, an investigator in the Commission's Captive Wildlife Office. Investigator Zimmerman's primary responsibilities are to ensure that individuals who apply for captive wildlife permits will offer humane and sanitary treatment to the animals they wish to possess, as well as maintain public safety.
Investigator Zimmerman explained that, in early 2018, she was assigned to investigate the efficacy of granting Petitioner a Class III permit to possess a capuchin monkey. To begin her investigation, Investigator Zimmerman met Petitioner at his house on February 1, 2018, in order to inspect the cage in which he intended to keep his monkey (Roxy).
Upon arriving at Petitioner's home, however, Investigator Zimmerman found that Petitioner was already boarding several capuchin monkeys in a backyard enclosure. Because Petitioner did not already possess a Class III
permit, she directed Petitioner to remove the monkeys from his property and return them to the proper license holder, Yvonne Robertson.
The next event in Investigator Zimmerman's involvement occurred in April 2018. That month, she received a phone call from Yvonne Robertson. Ms. Robertson proclaimed to Investigator Zimmerman that if Petitioner presented the Commission with any correspondence, letter, or paperwork bearing her signature, it was a forgery. Ms. Robertson disclosed to Investigator Zimmerman that the Commission had previously denied Yvette Hicks (her sister) a permit to keep capuchin monkeys. Therefore, Ms. Hicks was conspiring with Petitioner to fraudulently obtain a Class III permit for himself. Ms. Robertson relayed that, to support his Application, Petitioner (and Ms. Hicks) had requested that Ms. Robertson substantiate his experience by verifying the hours recorded on his Documentation of Experience form. However, Ms. Robertson declared that she did not intend to sign off on any document included with Petitioner's Application.
Petitioner submitted his Application to the Commission in July 2018. With the Application, Petitioner included the two letters bearing the signature "Yvonne Hicks."
Upon receiving Petitioner's Application, Investigator Zimmerman promptly met with Ms. Robertson to inquire about a possible forgery. When shown the two signatures, Ms. Robertson initially affirmed that she signed the letters. But, she quickly broke down in tears and informed Investigator Zimmerman that the two signatures were forged.
At that point, Investigator Zimmerman walked through with
Ms. Robertson all the activities recorded on Petitioner's Documentation of Experience form. Ms. Robertson advised Investigator Zimmerman that: 1) she did not authorize the hours Petitioner allegedly worked per entry (8 hours), 2) much of the work described for each entry did not take 8 hours, and
3) (as a specific example) Petitioner did not give any of the monkeys an insulin shot.
Thereafter, Investigator Zimmerman asked Ms. Robertson if she would provide a written statement memorializing their conversation. Ms. Robertson agreed, and completed a Commission Sworn Written
Statement form. As Investigator Zimmerman watched. Ms. Robertson wrote:
I didn't write this letter of recommendation and this is not my signature on this letter. On the App. of Documentation of hours for [Petitioner] I did not write those experience hours from 10-22-16 to 2-11- 18 and it is not my hand writing on the application.
Ms. Robertson further set down that, regarding the letter describing the specific entries on the Documentation of Experience, Petitioner worked "no hours" with the monkeys related to construction, diapers, training, show, playtime, movement, meals, deworming, or administering Insulin.
Ms. Robertson then signed the Sworn Written Statement with the name "Yvonne Hicks."4
Investigator Zimmerman then visited with Petitioner in August 2018. When they met, Investigator Zimmerman and Petitioner reviewed the Application. Petitioner expressed to Investigator Zimmerman that he personally completed his Application, and all representations in the Application, especially the hours worked with capuchin monkeys, were accurate.
Investigator Zimmerman next confronted Yvette Hicks. Ms. Hicks became visibly upset upon learning that Ms. Robertson (her sister) would not support Petitioner's Application. Ms. Hicks maintained that all the information and signatures within the Application were accurate and true.
At that point, Investigator Zimmerman concluded that Petitioner's Application contained falsehoods and forgeries. Therefore, later in August 2018, she presented her findings to the Highland County State Attorney's
4 To the naked eye, the "Yvonne Hicks" signatures on all three documents appear remarkably similar. The undersigned, however, is not a handwriting expert, and, therefore, makes no finding whether Ms. Robertson actually signed the two letters submitted with Petitioner's Application.
Office to consider pressing criminal charges against both Petitioner and Yvette Hicks.5
Several months later, on January 16, 2019, Ms. Robertson met with Investigator Zimmerman and the State Attorney handling the criminal case. During that meeting, she repeated her attestation that the information in Petitioner's Application was "completely false" and her signatures were forged.
Based on Ms. Robertson's declarations, criminal charges were brought against both Petitioner and Yvette Hicks for forgery. However, for reasons discussed in more detail below, in August 2019, Ms. Robertson recanted her entire testimony. Thereafter, the State Attorney's Office dismissed all charges against both Petitioner and Yvette Hicks. The Notice of Nolle Prosequi stated that:
The State of Florida is unable to determine when Yvonne [Robertson] is lying and when she is not. Due to a total lack of credibility of this witness the State can not proceed further.
Finally, during the final hearing, Investigator Zimmerman reviewed a handful of entries recorded in Petitioner's Documentation of Experience. She pointed out several specific areas of concern including: 1) the accuracy of the entries, 2) whether the tasks described actually consumed 8 hours of time, and 3) whether Petitioner had 8 hours of time available on several dates considering his busy work schedule with his employer, Highlands Regional Medical Center.
5 Rule 68A-6.004(2)(c)4. states:
Providing false information to document the applicant's experience, by the applicant or any reference, is prohibited as provided in Sections 837.012 and 837.06, F.S.
Section 837.012, Florida Statutes, directs that "a false statement, under oath, not in an official proceeding" is a first-degree misdemeanor. Similarly, section 837.06 states that "a false statement in writing with the intent to mislead a public servant" is a second-degree misdemeanor.
Despite the possible discrepancies in Petitioner's Application, Investigator Zimmerman acknowledged that the Commission's application and questionnaire form does not contain any instructions or suggested format or language that applicants should use to complete the Documentation of Experience form. She also agreed that the activities Petitioner recorded, such as "interaction," "playtime," and "preparing meals" were legitimate examples of "care, feeding, handling, and husbandry" and could be performed in a variety of ways and lengths of time.
John Conlin, a Lieutenant with the Captive Wildlife Office, also testified for the Commission. In his job, Lieutenant Conlin oversees the permitting process for captive wildlife in Florida.
Lieutenant Conlin first became aware of Petitioner's Application when Investigator Zimmerman contacted his office to report a "red flag" due to an alleged falsified signature. Thereafter, based on Investigator Zimmerman's determination that the allegations of forgery and fraud were verified, the Captive Wildlife Office concluded that the hours of experience recorded on Petitioner's Application were false. Lieutenant Conlin commented that Yvonne Robertson was the only person with whom Petitioner worked who was licensed by the Commission to possess capuchin monkeys. Consequently, she was the only individual authorized to validate the time Petitioner spent with the monkeys. Therefore, when Ms. Robertson denied that she actually supervised the hours Petitioner claimed, the Commission designated his Application for denial.
At the final hearing, Lieutenant Conlin expanded on his office's decision to deny the Application explaining that the fact that every entry on the Documentation of Experience form recorded exactly eight hours of time was a concern. The representation that Petitioner performed precisely eight hours of work with capuchin monkeys each day was not realistic. In addition, Lieutenant Conlin testified that many of the work descriptions themselves
lacked sufficient details to establish the "care, feeding, handling, and husbandry" necessary to receive a permit.
Despite the Commission's decision to deny Petitioner's Application, Lieutenant Conlin admitted that, if Petitioner's Documentation of Experience form was accurate, then Petitioner's Application reflects competency in the "care, feeding, handling, and husbandry" of capuchin monkeys.
At the final hearing, Petitioner maintained that his Application is accurate, true, and valid, and he meets all requirements under rule 68A-
6.004 to receive a Class III wildlife pet permit to personally possess Roxy.
Initially, Petitioner represented that he is a upstanding citizen and well respected professionally. He is a registered nurse and currently works as the night supervisor at Highlands Regional Medical Center in Sebring. Petitioner conveyed that he has a strong ethical track record as a hospital administrator, with no disciplinary issues.
Addressing why he desires a permit, Petitioner expressed that, after meeting Yvette Hicks in October 2015, he quickly became involved with the sisters' capuchin monkeys. Although he owns his own home, he soon moved into the sister's house. From that point onward, his life has revolved around the monkeys. Petitioner testified that raising exotic animals takes time and energy. After moving in with Ms. Hicks, the monkeys dominated his life.
To explain his experience in the "caring, feeding, handling, and husbandry" of capuchin monkeys recorded on his Documentation of Experience form, Petitioner recounted a typical day at the sisters' house. In the evenings, the sisters brought their monkeys inside the house to sleep with them in their beds. Then, first thing in the morning, the monkeys were taken out to their cages and fed. Meals were prepared and served twice a day. The monkeys were placed in diapers during day and showered/bathed at night. The cages themselves were cleaned once a day. Other activities, including "deworming," "interaction," "playtime," and "training" filled the gaps.
Petitioner commented that every daily entry on his Documentation of Experience form was noted as "8" hours long because he understood that he could only record up to eight hours of experience per day. However, Petitioner testified that he generally spent far more than eight hours a day with the monkeys.
Petitioner further relayed that Roxy, in particular, needs special attention as she has Type 1 diabetes. Her condition requires two shots of insulin a day, and her blood sugar levels must be routinely checked. Petitioner explained that, because of his nursing background, he quickly assumed responsibility for administering the shots to Roxy.
Petitioner also remarked that the sisters book approximately 75 "Twins & Jungle Friends" shows a year (prior to the COVID-19 pandemic). The sisters, together with their capuchin monkeys, travel all across Florida to perform at a variety of venues, including birthday parties, corporate events, county fairs, music videos, and school functions. Petitioner expressed that he accompanied the sisters whenever he could to help handle the monkeys or set up the shows.
Petitioner testified that his work with the sisters' capuchin monkeys remained consistent and steady until April 2018, when Ms. Hicks and
Ms. Robertson experienced an abrupt and harsh falling out. Consequently, he suggested to Ms. Hicks that they move into his house, which they gradually did. Even so, Petitioner and Ms. Hicks continued to care for the monkeys on a daily basis. Thereafter, because of how attached he had grown to the monkeys, he wanted the ability to bring one or more of them back to his house. Therefore, he constructed a large cage in his backyard in which to house the monkeys.
Regarding the Commission's stated reasons for denying his Application, Petitioner expressed that the experience recorded in his Documentation of Experience form is accurate, genuine, and true. Petitioner further testified that he did not forge or falsify the signature(s) of "Yvonne
Hicks." Petitioner explained that Ms. Robertson and Ms. Hicks mended their relationship in July 2018. At that time (July 3, 2018, to be exact),
Ms. Robertson signed his Application. Thereafter, he submitted it to the Commission.
Petitioner declared that, since October 2016, he has easily spent over 1,000 hours a year working with capuchin monkeys. He continues to spend time every day with the monkeys. He has come to "love them like a child."6
Petitioner acknowledged that he and Ms. Hicks were arrested and charged with forgery in September 2018. However, Petitioner explained that the State of Florida dismissed the case prior to trial. Consequently, neither he nor Ms. Hicks were ever convicted of any crime for forgery or fraud related to his Application, nor are any charges currently pending. Petitioner asserted that the criminal case was based on an outright lie by Ms. Robertson, which she made because she was mad at her sister.
Accordingly, Petitioner contends that his Application, on its face, easily shows that he meets the required regulatory conditions and criteria to possess a capuchin monkey. His Application amply demonstrates that he has acquired sufficient knowledge of the capuchin monkey species, as well as its nutritional and social needs, caging requirements, and safety and medical demands to qualify for a permit. Petitioner urges that his Application clearly documents over 1,000 hours of legitimate and valid experience working with capuchin monkeys, as required by rule 68A-6.004(2) and (3). Consequently, when considering the merits of his Application, Petitioner argues that he proved that the Commission should grant him a Class III permit.
Petitioner's testimony regarding the work he has performed with capuchin monkeys beginning in October 2015 is credible and credited.
6 One of the benefits of video teleconferencing is that it allows a party to participate in the final hearing from any location. In this matter, Petitioner (and Ms. Robertson and Ms. Hicks) joined the final hearing from the sisters' house, which is home to Roxy and the troop of 13 other capuchin monkeys. Periodically during the hearing, Roxy traipsed across the video screen and crawled into Petitioner's arms. Both Petitioner and Roxy appeared quite at ease in each other's company, and Roxy's attachment to Petitioner was quite evident.
Yvonne Robertson testified at the final hearing in support of Petitioner's Application. Ms. Robertson declared that she did, in fact, sign off on Petitioner's work hours. She asserted that the "Yvonne Hicks" signatures, on both the Documentation of Experience form, as well as the letter of reference, are hers.
Before explaining why she now recants her (sworn) statements to Investigator Zimmerman and the State Attorney's Office, Ms. Robertson buttressed Petitioner's description of the activities he performed in the "care, feeding, handling, and husbandry" of capuchin monkeys. Ms. Robertson echoed Petitioner's statement that owning capuchin monkeys is "life changing," in that they have no life outside of caring for their monkeys. Her animals require constant attention to feed, nurture, and safeguard.
As to why she contacted the Commission to report a forgery,
Ms. Robertson expressed that in April 2018, she and her sister suffered a severe personality clash. Ms. Robertson explained that "like all sisters do … we fought our whole life."
That same month, she was asked to approve Petitioner's Documentation of Experience form, as well as provide a reference letter. Ms. Robertson testified that, due to her roiling resentment of her sister, this request came at a most inopportune time. To spite her sister, Ms. Robertson
reached out to Investigator Zimmerman and issued her proclamation that she did not, and would not, sign off on Petitioner's Application. Ms. Robertson admitted that she specifically told Investigator Zimmerman that any signature on the Application bearing her name was a "forgery." Later, when confronted by the State Attorney, she perpetuated her story because she believed that the Commission might take her monkeys away if she retracted her allegations.
At the final hearing, however, Ms. Robertson adamantly asserted that the "Yvonne Hicks" signature on Petitioner's paperwork "is mine."
Ms. Robertson professed that, she willingly supported, and supports, Petitioner's effort to obtain a wildlife pet permit to keep Roxy.
Towards that end, Ms. Robertson testified that she personally observed Petitioner care for her capuchin monkeys from October 2016 through February 2018. Ms. Robertson further professed that she reviewed, approved, and signed off on Petitioner's Documentation of Experience form on July 3, 2018. Ms. Robertson explained that, by that date, she had reconciled with her sister, and was ready and willing to substantiate Petitioner's Application.
Ms. Robertson further elaborated that it was her sister who actually completed the entries on the Documentation of Experience form.
Ms. Robertson stated that Ms. Hicks maintains a daily planner/calendar. Ms. Robertson relayed that the descriptions of the work that Petitioner performed with the capuchin monkeys came directly from Ms. Hick's written records. Ms. Robertson further insisted that she personally observed Petitioner's interaction with the monkeys, and that Ms. Hick's entries are accurate and true. Ms. Robertson expressed that Petitioner, Ms. Hicks, and she worked together with the monkeys every day during the time period covered by Petitioner's Application.
At the file hearing, Ms. Robertson expressed her extreme regret at accusing her sister and Petitioner of fraud. She wishes that she had never made the "stupid mistake" of reporting a forgery. Ms. Robertson asserted that she now fully endorses Petitioner's Application "because it is the right thing to do. He did the hours, he deserves the license."
Yvette Hicks testified on Petitioner's behalf. Ms. Hicks asserted that Petitioner is perfectly capable of tending to Roxy and the rest of her capuchin monkeys. Not only was Petitioner receptive, ready, and willing to look after her monkeys, but the monkeys took to him as well.
Ms. Hicks confirmed that she was the person who actually logged Petitioner's experience onto the Documentation of Experience form.
Ms. Hicks testified that she diligently and meticulously writes into a planner "everything that happens on every day." She also maintains the calendar for "Twins & Jungle Friends" shows. To record Petitioner's work hours, she referred to her daily notes, then transferred the activities and events to Petitioner's Application.
In chronicling Petitioner's experience on the Documentation of Experience form, Ms. Hicks explained that she recorded that Petitioner worked "8" hours a day with the monkeys because she understood that eight was the maximum number of hours that the Commission would allow per entry.7 In reality, however, Ms. Hicks insisted that Petitioner spent "way more" than eight hours a day with the monkeys. She maintained that, because he lived with the sisters, Petitioner worked with the monkeys all day, every day.
Ms. Hicks also commented on several of her specific entries on the Documentation of Experience form. She explained that the term "Served Meals" documented when Petitioner prepared one or both of the monkeys' meals for the day. The entry for "Insulin" referred to the times Petitioner provided the insulin shots to Roxy. (Ms. Hicks added that Petitioner is an extremely capable nurse and administered the shots on most days.) Finally, Ms. Hicks voiced that "Show" entries represented days when Petitioner assisted with the "Twins & Jungle Friends" performances. (Ms. Hicks expressed that Petitioner became an integral part in the sisters' production.)
Regarding Ms. Robertson's allegation to the Commission in April 2018 that she did not sign off on Petitioner's Application, Ms. Hicks declared that Ms. Robertson's statements were "all a lie." Ms. Hicks affirmed
Ms. Robertson's testimony that their relationship was "rocky." Ms. Hicks, however, firmly, maintained that the hours and descriptions she wrote on
7 The one exception to the "8" hours worked for each entry on the Documentation of Experience form was for October 27, 28, and, 29, 2017. For these dates, Ms. Hicks recorded that Petitioner "spent 3 days performing at the Ocala Pumpkin Festival with show monkeys," and that he worked "all day."
Petitioner's Documentation of Experience form were true and accurate.8 Ms. Hicks also fervently declared that Ms. Robertson signed off on Petitioner's experience, and the two signatures of "Yvonne Hicks" in the Application are Ms. Robertson's.
Ms. Hicks convincingly testified that Petitioner is "wonderful" with the capuchin monkeys. Further, she credibly represented that, based on her observations, Petitioner protected the monkeys' safety, enhanced their lives, and made them happy.
Based on the competent substantial evidence presented at the final hearing, the greater weight of the facts establishes that Petitioner possesses significant experience in the "care, feeding, handling, and husbandry" of capuchin monkeys. The evidence further shows that Petitioner will provide humane and sanitary treatment to any monkeys (especially Roxy) entrusted to his care. In addition, the testimony does not support, by a preponderance of the evidence in the record, the allegations that either the "Yvonne Hicks" signatures or the descriptions of work performed in Petitioner's Application are false, forged, fraudulent, or misleading.
However, the implication that Petitioner's Documentation of Experience form contains "inaccurate information" has merit. The Commission's witnesses persuasively expressed the Commission's concerns with the accuracy of the representation that Petitioner earned exactly "8" hours of experience on each and every day he worked, as well as the reliability of the work descriptions written on the form, and whether the work described actually took "8" hours to perform. Further, although
Ms. Robertson testified with conviction that Petitioner achieved the required 1,000 hours of experience under her supervision, her credibility is materially
8 At the final hearing, during questioning by the Commission, Ms. Hicks did concede one "inadvertent error" in the 11-page Documentation of Experience form. The "Show" entry she recorded on November 23, 2017, had been rescheduled and actually occurred on November 25, 2017.
damaged by the prior untruths she told to Investigator Zimmerman and the Highlands County State Attorney's Office.9
Consequently, Petitioner did not establish that his Application meets the requirements necessary under rule 68A-6.004 to qualify for a wildlife pet permit for a capuchin monkey. Therefore, Petitioner did not meet his ultimate burden of proving that the Commission should grant his Class III Personal Use Application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to sections 120.569 and 120.57(1).
Petitioner brings this matter asserting that he meets the requirements and criteria to be granted a Class III captive wildlife pet permit from the Commission.
Section 379.3762, Florida Statutes, states:
It 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 Fish and Wildlife Conservation Commission.
The classifications of types of wildlife and fees to be paid for permits for the personal possession of wildlife shall be as follows:
Class I—Wildlife which, because of its nature, habits, or status, shall not be possessed as a personal pet.
Class II—Wildlife considered to present a real or potential threat to human safety, the sum of
$140 per annum.
9 Or, the untruths she told during the final hearing. Ms. Robertson misrepresented the facts either to the Commission or to the undersigned.
Class III—All other wildlife not included in Class I or Class II, for which a no-cost permit must be obtained from the commission.
Rule 68A-6.003 provides, in pertinent part:
(1) Except as otherwise provided in this Title, no person shall possess any native or non-native wildlife in captivity except a [sic] authorized by permit issued in accordance with Section 379.3761 or 379.3762, F.S., and as provided in this chapter.
* * *
(5) Persons possessing Class III wildlife as personal use wildlife shall obtain a no-cost permit from the Executive Director.
The requirements to obtain a Class III personal pet permit are set forth in rule 68A-6.004, entitled Possession of Class I, II, and III Wildlife: Permit Application Criteria, which provides, in pertinent part:
Permits to possess wildlife in captivity, issued pursuant to Section 379.3761 or 379.3762, F.S., and the provisions of this chapter, shall authorize the keeping of captive wildlife, of the type and number specified in applications approved by the Commission, in accordance with law and Commission rules.
* * *
Qualification requirements for a permit to possess Class I or Class II wildlife:
All applicants shall qualify for permits as follows:
Age Requirement: Applicants to possess Class I or Class II wildlife shall be at least 18 years of age.
Applicants shall not have been convicted of any violation of captive wildlife regulations or
venomous reptile or reptile of concern regulations involving unsafe housing of wildlife or that could potentially endanger the public; any violation involving the illegal commercialization of wildlife; any violation involving cruelty to animals; or any violation involving importation of wildlife within three (3) years of the date of application.
Experience Requirement for Class I permits:
Applicants shall demonstrate no less than one (1) year of substantial practical experience (to consist of no less than 1000 hours) in the care, feeding, handling and husbandry of the species for which the permit is sought.
* * *
For purposes of demonstrating compliance, applicants shall submit documentation of such experience, including:
A description of the specific experience acquired.
The dates and times the experience was obtained and the specific location(s) where acquired.
References of no less than two (2) individuals, no more than one of which may be a relative of the applicant, having personal knowledge of the applicant's stated experience. One of these references must be licensed by the commission for wildlife of the same family and the same or higher class for which the applicant is seeking authorization or a representative of a professional organization or governmental institution.
* * *
4. Providing false information to document the applicant's experience, by the applicant or any reference, is prohibited as provided in Sections
837.012 and 837.06, F.S.
Experience and examination requirements for Class II permits:
1. Applicants may qualify for a permit for Class II wildlife by documenting one year of experience (to consist of no less than 1000 hours) as defined in subparagraphs 68A-6.004(2)(c)1.-4., F.A.C., above.
* * *
No permit shall be issued to any person to possess Class III wildlife for exhibition, sale or personal use unless such person can meet the following requirements:
Be 16 years of age or older.
Application for permits to possess Class III wildlife for personal use shall include the satisfactory completion of a questionnaire developed by the Commission that assesses the applicant's knowledge of general husbandry, nutritional, and behavioral characteristics. Such information shall be documented on the Personal Use Application and Questionnaire form FWCDLE_621 (01/07), (effective January 2017, which is adopted and incorporated herein by reference http://www.flrules.org/Gateway/reference.asp?No= Ref-11138).
* * *
Applicants for permits to possess capuchin, spider, or woolly monkeys shall meet the age, experience and examination requirements for authorization to possess Class II wildlife. (emphasis added).
The Commission's authority to deny a permit application is found in rule 68-1.010, which provides, in pertinent part:
The following shall apply to all licenses, permits or other authorizations in addition to requirements specific to individual licenses.
(1) The Commission shall deny applications for any license, permit or other authorization based upon any one or more of the following grounds:
(a) Submission by the applicant of false, misleading, or inaccurate information in the application or in any supporting documentation provided by the applicant or on behalf of the applicant relating to the license, permit, or other authorization, or omission of any information which has a false, misleading or inaccurate effect.
The ultimate burden of proof in this matter falls on Petitioner, as the applicant, to prove that he is entitled to receive a Class III permit to possess a capuchin monkey. See Comprehensive Med. Access, Inc. v. Office of Ins. Regulation, 983 So. 2d 45, 46 (Fla. 1st DCA 2008)("'The burden of persuasion remains upon the applicant to prove her entitlement to the license' throughout the proceedings.") quoting Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); see also Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); and Osborne Stern & Co., 670 So. 2d at 935 ("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.").
In an application denial proceeding, however, the Commission has the burden to prove the alleged misconduct or violations which it seeks to use as the basis to deny the license application. See M.H. v. Dep't of Child. & Fams., 977 So. 2d 755, 761 (Fla. 2d DCA 2008)("Without question, an applicant for a license has the initial burden of demonstrating his or her fitness to be licensed But if the licensing agency proposes to deny the requested license
based on specific acts of misconduct, then the agency assumes the burden of proving the specific acts of misconduct that it claims demonstrate the
applicant's lack of fitness to be licensed." citing Osborne Stern & Co., 670 So. 2d at 935; see also Comprehensive Med. Access, Inc. v. Off. of Ins. Reg., 983 So. 2d 45, 46 (Fla. 1st DCA 2008)(While the applicant continuously has the burden of persuasion to prove entitlement to be licensed, "the agency denying the license has the burden to produce evidence to support a denial.") and Fla. Dept. of Child. & Fams. v. Davis Family Day Care Home, 160 So. 3d 854, 857 (Fla. 2015)("where the agency proposes to deny the license because the applicant is unfit, it has the burden to prove the applicant's unfitness.")
The preponderance of the evidence standard is applicable to this action. § 120.57(1)(j), Fla. Stat.
Turning to the facts found in this matter, the Commission's Notice of Denial states an intent to deny Petitioner's Application based on the charge that Petitioner falsified the signature of "Yvonne Hicks" on his Documentation of Experience form, as well as a letter of reference. As stated above, however, the Commission did not prove, by a preponderance of the evidence in the record, that Petitioner forged the signatures on any supporting documents included with his Application.
The Commission's decision is grounded entirely on the statements from Yvonne Robertson in 2018. To be sure, Ms. Robertson's representations to both Investigator Zimmerman, as well as the Office of the State Attorney, declaring that she did not sign Petitioner's Documentation of Experience form or the reference letter, provided the Commission sufficient evidence to challenge, and initially deny, Petitioner's Application. However, at the final hearing, just as she did in August 2019 to the State Attorney, Ms. Robertson resolutely renounced her earlier statements. The undersigned finds that her vacillating attestations simply do not provide the evidence necessary to prove that either Petitioner or Yvette Hicks forged her signature on the Application. Instead, the undersigned agrees with the State Attorney's Office that, because it is difficult "to determine when Yvonne [Robertson] is lying and when she is not," Ms. Robertson's "total lack of credibility" cannot
support the reason upon which the Commission relies to establish that Petitioner should not be granted a Class III license to possess Roxy, i.e., that someone else signed the name "Yvonne Hicks," thereby falsifying the Application.
Further undermining the "specific act of misconduct," the Commission cites in the Notice of Denial letter, both Petitioner and Yvette Hicks convincingly and persuasively testified about the extensive experience Petitioner has gained from caring for capuchin monkeys since 2015. Petitioner cogently described his experiences living with the sisters' monkeys. He believably recounted the constant and numerous chores and tasks he performed in feeding, raising, showing, training, or administering insulin to the monkeys in his custody. His sincere affection for the monkeys, acquired from his years of interactions with them, shone during his testimony. Based on this credible testimony, Ms. Robertson's statements from 2018 that Petitioner worked "no hours" with her capuchin monkeys simply does not ring true.
Notwithstanding this finding, however, the undersigned concludes that Petitioner did not meet his ultimate burden of proving that he is entitled to receive a Class III permit to possess a capuchin monkey. Despite clear evidence that Petitioner has significant experience in the "care, feeding, handling, and husbandry" of capuchin monkeys, his Application does not reliably document "one year of experience (to consist of no less than 1000 hours)" as required by rule 68A-6.004. The concerns Lieutenant Conlin raised regarding the duplicative nature of the entries recorded in Petitioner's Documentation of Experience form are well made. Lieutenant Conlin questioned whether the Application's representation that Petitioner performed exactly "8" hours of work each day with the monkeys is accurate. If the number of hours ascribed on the Documentation of Experience form is not precisely accurate, then the question arises as to whether the work descriptions themselves–some being as long as "Prepared + Served Meals,
Insulin, Movement to Habitats, Training of Show Monkeys, Playtime with Rescues in Habitats" and others as short as "Insulin, Prepare + Serve Meals" are reliable. Lieutenant Conlin also identified a valid issue regarding that fact that many of the work descriptions themselves lack sufficient details to establish that, when he worked, Petitioner was acquiring experience in the actual "care, feeding, handling, and husbandry" of capuchin monkeys which would support the issuance of a permit.
Further, Petitioner's cause is irreparably harmed by the finding that the testimony of his sponsor, Ms. Robertson, is discredited. Because the support of the person who was responsible for supervising his experience with the capuchin monkeys is undependable, the legitimacy and reliability of Petitioner's Documentation of Experience form is suspect. The importance of providing trustworthy information on an application should not be discounted. Not only does rule 68A-6.004 require an applicant to meet a specific experience threshold to ensure that captive species remain in safe hands, but, when determining whether to approve a wildlife pet permit, the Commission should have confidence that the information submitted with an application is accurate and valid. In this case, Petitioner's Application does not provide the Commission that confidence. Consequently, the "inaccurate" information in the application prevents Petitioner from proving that the Commission should grant him a Class III permit.
In sum, the competent substantial evidence adduced at the final hearing does not support the reason stated in the Commission's Notice of Denial letter to deny Petitioner's Class III permit application. The preponderance of the evidence does not establish that Petitioner falsified, or conspired to falsify, signatures on his Application. However, the evidence in the record also does not demonstrate that Petitioner's Application chronicles the required amount of work experience to entitle him to receive a Class III permit to possess a capuchin monkey. Accordingly, Petitioner failed to meet his ultimate burden of proving entitlement to a Class III wildlife pet permit.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission deny Petitioner's Application for a Class III personal use permit to possess capuchin monkeys.
DONE AND ENTERED this 25th day of January, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399
Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building
620 South Meridian Street Tallahassee, Florida 32399-1600
S
J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Peri E. Sedigh, Esquire Sedigh Law
2443 Grandview Avenue
Sanford, Florida 32771
Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building
620 South Meridian Street Tallahassee, Florida 32399-1050
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 25, 2021 | Recommended Order | Agency failed to prove the allegations relied upon to deny Petitioner?s application for a Class III wildlife pet permit. However, Petitioner failed to meet his ultimate burden of proving entitlement to the application. |
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