Judges: SHARYN L. SMITH
Agency: Fish and Wildlife Conservation Commission
Latest Update: May 15, 1984
Summary: Holder of wildlife permit has not maintained adequate records of sick animals treated. Hearing Officer recommends that wildlife permit be revoked.
83-3398.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA GAME AND FRESH )
WATER FISH COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3398
)
JACK KASSEWITZ, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on December 29, 1983, in Tallahassee, Florida, and on April 6, 1984, in Miami, Florida. The following appearances were entered:
For Petitioner: Dan R. Stengle, Esquire
Florida Game and Fresh Water Fish Commission
620 South Meridian Street Tallahassee, Florida 32301
For Respondent: Jack Kassewitz, Jr. 1/
2101 North West 95th Street Miami, Florida
The issue for determination at the final hearing was whether the Respondent's wildlife rehabilitation permit should be revoked or otherwise disciplined for the Respondent's alleged failure to comply with the record keeping and reporting requirements of the permit.
At the final hearing held in Tallahassee, Captain Kyle W. Hill, Chief of Training and Inspection for the Petitioner Florida Game and Fresh Water Fish Commission, Pat MacIntosh, Special Agent, United States Fish and Wildlife Service, David Swindell, Internal Inspector with the Commission, and Don Holway, a wildlife inspector employed by the Commission, testified for the Petitioner.
Petitioner's Exhibits 1-9 were offered and admitted into evidence. At the hearing held in Miami on April 6, 1984, the Respondent Kassewitz testified on his own behalf.
A Proposed Recommended Order has been filed by the Petitioner. When the findings of fact were consistent with the weight of the credible evidence introduced at the final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
FINDINGS OF FACT
Respondent is permitted by Petitioner to treat sick and injured wildlife under a wildlife rehabilitation permit, the latest and current permit being issued to Respondent on January 21, 1983. Respondent has been engaged in the business of treating sick and injured wildlife -- including both birds and mammals -- under permit from Petitioner for at least three (3) years.
Petitioner issues wildlife rehabilitation permits to those persons demonstrating to Petitioner the degree of expertise in treating sick and injured wildlife necessary to assure safety to the treated animals. In addition, Petitioner monitors wildlife rehabilitation permittees to assure that sick and injured wildlife are treated humanely and caged in a safe and sanitary manner so as to protect the health and safety of the wildlife treated and the public.
In order to monitor such permittees, periodic inspections of the premises where sick and injured wildlife is treated are made by Petitioner. In addition, Petitioner required such permittees to maintain records and to submit the same to Petitioner upon Petitioner's request. Wildlife rehabilitators are notified of this requirement through an informational packet provided them by Petitioner, which specifies that permittees must keep records of specimens cared for and submit reports of same to Petitioner upon request.
The requirement that records be maintained and reported to the Petitioner upon request is applied to all of the one hundred (100) wildlife rehabilitators permitted by Petitioner. Examination of records is routinely requested by Petitioner when inspecting the premises where sick and injured wildlife is kept.
On at least two occasions, Petitioner requested the production of records maintained by Respondent in connection with Petitioner's inspection of Respondent's wildlife rehabilitation facilities. On neither occasion did Respondent produce records for Petitioner's inspection.
On February 3, 1983, Petitioner notified Respondent by letter that Respondent should submit a report of the numbers and types of wildlife accepted for rehabilitation and the disposition of said wildlife. The letter directed Respondent to submit his report immediately and to maintain records for examination by Petitioner in conjunction with future inspections. No report was submitted to Petitioner by the Respondent.
On September 8, 1983, in response to a citizen complaint, Petitioner initiated an investigation of the wildlife rehabilitation operation of Respondent.
In conjunction with its investigation of Respondent, Petitioner requested of Respondent the production of the wildlife rehabilitation records on September 22, 1983. Respondent did not produce the records as requested. Petitioner again requested Respondent to produce the records on September 23, 1983, and again Respondent failed to produce the records for Petitioner.
Respondent did provide, on two separate occasions, documents to the
U.S. Fish and Wildlife Service, a federal agency. The documents submitted to the U.S. Fish and Wildlife Service purported to reflect numbers of birds treated by Respondent during 1982. The documents failed to reflect the type of treatment, the specific disposition of said birds, any reference to mammals, or
any recording of numbers or types of mammals. The two separate documents submitted are in irreconcilable conflict as to numbers and types of birds treated. In addition, the documents contain no reference to certain birds delivered by Petitioner to respondent's wildlife rehabilitation facility during 1982. Said documents were never submitted by Respondent to Petitioner.
On no occasion has Respondent produced any records or reports for 1982 to Petitioner in connection with Respondent's wildlife rehabilitation.
On November 1, 1983, Respondent was informed by letter dated October 27, 1983, that Petitioner intended to revoke Respondent's wildlife rehabilitation permit due to Respondent's failure to comply with the record keeping and reporting requirements of the wildlife rehabilitation permit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Commission issues wildlife rehabilitation permits pursuant to Rule 39-9.02, Florida Administrative Code, which provides as follows:
The executive director may issue permits authorizing the taking or possession of wildlife or freshwater fish or their nests or eggs for scientific, educational, exhibition, propagation, management or other justifiable purposes. Such permits shall be subject to such terms, conditions and restrictions as may be prescribed therein, provided that no such permits shall be operative as to migratory birds unless the holder thereof has a permit from the U.S. Fish and Wildlife Service permitting the taking, exhibiting, or possession of such birds, their nests or eggs. Failure to abide by all terms and conditions stipulated in any written permit issued by the executive director shall be a violation of this section.
Such permits are specifically conditioned upon an applicant abiding by all terms and conditions set forth therein. The Respondent's permit was issued January 21, 1983, subject to conditions set forth in letters dated January 21, 1983, and February 3, 1983.
Among the specific permit conditions contained in the February 3rd letter to the Respondent was a requirement that records be maintained showing numbers and types of wildlife accepted and rehabilitated through the year and their disposition.
Despite repeated requests by the Commission, the Respondent failed to turn over his records relative to the acceptance, treatment and disposition of wildlife for inspection. The Respondent provided documents to the United States Fish and Wildlife Service which related to the treatment and disposition of birds, but did not furnish these documents to the Commission. Moreover, even if these documents had been furnished, they would not be adequate since no entries
were kept for mammals, irreconcilable conflicts in the numbers and types of birds treated exist in the records and they contain no entries concerning treatment, specific disposition and dates of disposition of birds which are necessary for the purposes of the Commission.
Since adequate records do not exist upon which to evaluate the care and treatment of sick and injured animals offered by the Respondent, the Petitioner has demonstrated that the Respondent has violated the condition of his permit that he maintain adequate records showing the numbers and types of wildlife accepted, rehabilitated and disposed of.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the Petitioner Game and Fresh Water Fish Commission enter a final order revoking the wildlife permit of the Respondent Jack Kassewitz, Jr.
DONE and ORDERED THIS 15th day of May, 1984, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1984.
ENDNOTE
1/ At the initial hearing conducted on December 29, 1983, in Tallahassee, Florida, the Respondent failed to personally appear and was not represented by counsel. Subsequent to the hearing, the Respondent was given the opportunity to personally testify and present witnesses and documentary evidence at a special hearing held in Miami, Florida, for that purpose.
COPIES FURNISHED:
Dan R. Stengle, Esquire Florida Game and Fresh Water
Fish Commission
620 South Meridian Street Tallahassee, Florida 32301
Jack Kassewitz, Jr.
2101 North West 95th Street Miami, Florida
Colonel Robert M. Brantly Executive Director
Game and Fresh Water Fish Commission Farris Bryant Building
620 South Meridian Street Tallahassee, Florida 32301
Docket for Case No: 83-003398
Orders for Case No: 83-003398
| Issue Date |
Document |
Summary |
|
May 15, 1984 |
Recommended Order
|
Holder of wildlife permit has not maintained adequate records of sick animals treated. Hearing Officer recommends that wildlife permit be revoked.
|
