STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAME AND FRESH WATER FISH )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5874

)

ALVIN WEINBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on February 8, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James T. Knight III

Assistant General Counsel Florida Game and Fresh Water

Fish Commission

620 South Meridian Street Tallahassee, Florida 32399-1600

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether the Florida Game and Fresh Water Fish Commission (Commission) should renew Respondent's permit to possess captive wildlife.

PRELIMINARY STATEMENT

Petitioner presented the testimony of Lt. Charles Dennis, Lt. John West, and Captain Jerry Thompson. Petitioner's Exhibits 1 through 4 were offered and received into evidence. The Hearing Officer took official recognition of Rule 39-5.004, Florida Administrative Code, relating to the revocation or non-renewal of permits and licenses by the Commission. The proceeding was recorded on audio tape.

Respondent did not appear at the hearing. The Commission filed a proposed recommended order which has generally been accepted. No transcript of the proceeding was filed.

FINDINGS OF FACT

1. Operating under the name of South Florida Reptile Exchange, Respondent, Alvin Weinberg, has been permitted since 1978 by the Commission to possess

   captive wildlife. On September 2, 1992, the Commission issued an Administrative Complaint seeking to deny renewal of Respondent's permit for violations of minimum pen specifications and unsanitary and inhumane conditions at his facility.

   
   

2. Under Rule 39-5.004, Florida Administrative Code, the Commission may revoke or deny renewal of any license or permit if the licensee or permittee is convicted or found guilty, regardless of adjudication, of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission.

   
   

3. On June 16, 1992, Respondent's facility was inspected by Lt. Charles Dennis and Lt. John West. In the course of that inspection, they found a number of unsanitary and inhumane conditions. Specifically, most of the water bowls for the animals were empty. There were dead animals, maggots and an accumulation of fecal matter in many cages. Up to 150 turtles were kept in one pit that measured only 5' X 5'. Many reptiles had not been fed properly. For instance, one Monitor lizard was so emaciated that the inspectors were surprised it was still alive. The conditions found at Respondent's facility on June 16, 1992, were the worst seen in the 17 years experience of Lt. Dennis. Respondent was issued two criminal citations on the basis of these observations, for violations of a Commission rule relating to sanitation requirements and the humane treatment of captive wildlife, Rule 39-6.0023(5), Florida Administrative Code.

   
   

4. These citations resulted in a criminal conviction of Respondent in St. Lucie County Court, Cases 92-1754MM and 92-1755MM.

   
   

5. Respondent was previously issued a criminal citation in July of 1991 for violation of a Commission rule relating to sanitation requirements and humane treatment of wildlife at his facility. This citation also had resulted in a criminal conviction in St. Lucie County Court, Case 91-1345MM.

   
   

6. Before these criminal proceedings, Respondent had received warning citations from inspectors for violations of Commission rules relating to sanitation and the humane treatment of animals.

   
   

7. During the pendency of these proceedings, Respondent's facility was inspected again on January 6, 1993. Some conditions at the facility had improved, but there were still deficiencies related to sanitation and the humane treatment of the animals.

   
   

8. Respondent has consistently been below the industry standard with respect to sanitary conditions and the humane treatment of wildlife kept at his facility.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this case. Section 120.57(1), Florida Statutes (1991).

   
   

10. The Commission seeks to deny renewal of the permit issued to Respondent under Section 372.921, Florida Statutes, using the revocation or non- renewal provisions of Rule 39-5.004, Florida Administrative Code. A permit renewal may be denied if the permittee has been convicted of a criminal violation of Chapter 372, Florida Statutes, or the rules of the Commission.

    Violation

    
    

11. The Commission has proven two separate, recent criminal convictions of Respondent for violations of rules of the Commission relating to sanitary conditions at Respondent's facility and the inhumane treatment of wildlife. These convictions authorize non-renewal of his permit. Rule 39-5.004(3), Florida Administrative Code, and Dubin v. Department of Business Regulation, 262 So.2d 273 (Fla. 3d DCA 1972).

    
    

    Penalty

    
    

12. In determining whether these violations are so serious that Respondent's permit should not be renewed, it is necessary to apply the factors set out in Rule 39-5.004(4), Florida Administrative Code. Having considered the violations and surrounding circumstances under these guidelines, non-renewal of the Respondent's permit is appropriate.

    
    

13. The first factor addresses the severity of the offense. Rule 39.5.004(4)(a), Florida Administrative Code. The manner in which Respondent maintained captive wildlife during the June 16, 1992, inspection was deplorable. The condition of the animals and their surroundings was the worst Lt Dennis had see in his 17-year career inspecting such facilities. This offense is unusually serious.

    
    

14. The second factor is the danger to the public created or occasioned by the offense. Rule 39-5.004(4)(b), Florida Administrative Code. This contention is inapplicable.

    
    

15. The third factor is the existence of prior violations of Chapter 372, Florida Statutes, or rules of the Commission. Rule 39.5-004(4)(c), Florida Administrative Code. Before the conviction for the June 1992 offense, Respondent had been convicted of similar offenses stemming from a July 1991 inspection of his facility. Before that, Respondent had received both written and oral warning citations for prior violations of the rules of the Commission. All of these violations or convictions involved the welfare of the animals and the sanitary conditions in which they were confined. Respondent has shown little concern for the creatures he has been permitted to keep since he was first permitted. The record shows a pattern of violation of Commission rules on sanitation and nutrition. Rule 39-6.0023(5), Florida Administrative Code.

    
    

16. The fourth factor is the length of time the licensee or permittee has been licensed or permitted. Rule 395.004(4)(d), Florida Administrative Code. Respondent has been permitted since 1978. During this period of time, Respondent has been cited on several occasions for inhumane treatment of animals. An experienced dealer in reptiles should be aware of the needs of the animals he is permitted to keep.

    
    

17. The fifth factor to consider is the effect of revocation or non- renewal upon the licensee's or permittee's livelihood. Rule 39-5.004(4)(e), Florida Administrative Code. There is no evidence before the Division regarding the effect on Respondent's livelihood should renewal of the permit be denied.

    It is reasonable to assume a negative impact. Balanced against this is the constitutional mandate of the Commission to protect the welfare of wildlife. Ample evidence supports placing the welfare of these animals ahead of Respondent's financial interests. Respondent was issued a permit by the Commission to display or sell wildlife, not to abuse animals.

18. The sixth factor considers 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. Rule

    39-5.004(4)(f), Florida Administrative Code. Respondent has been given adequate opportunity to correct the problems that led to these convictions. He had been given both written and oral warnings in the past, to allow him to correct the deficiencies before formal charges were filed. In 1991 and 1992 he was convicted of violations of Commission rules on sanitation and nutrition of captive wildlife. As recently as last month, Respondent's facility still failed to provide adequate food and water for the animals, while these very proceedings to deny the renewal of his permit were underway. Illustrative of Respondent's attitude is his statement to Lt. Dennis that keeping the water bowls filled only creates more work by having to change the paper in the cages because the animals splash the water out.

    
    

19. There is no evidence of related violations by Respondent in another jurisdiction, so this factor in Rule 39-5.004(4)(g), Florida Administrative Code, does not apply.

    
    

20. The deterrent effect of revocation or non-renewal must be considered. Rule 39-5.004(4)(h), Florida Administrative Code. Denying renewal of the permit to possess captive wildlife will certainly prevent Respondent from housing wildlife in sub-standard caging in the future, and prevent him from mistreating animals by not providing them with sufficient food and water. Non-renewal will additionally deter Respondent from such conduct should he ever be licensed in the future, as well as demonstrate to other permitees of captive wildlife that the Commission will not tolerate repeated failures to conform to its rules requiring humane treatment of wildlife.

    
    

21. The final factor to consider is any other mitigating or aggravating factors. Rule 39-5.004(4)(i), Florida Administrative Code. Respondent failed to appear at the hearing. There is no evidence in mitigation in the record to off-set the aggravating factors already addressed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's application to renew his permit to possess captive wildlife be DENIED by Final Order of the Commission.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1993.

WILLIAM R. DORSEY, JR.

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 8th day of March 1993.

COPIES FURNISHED:

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

Fish Commission

620 South Meridian Street Tallahassee, Florida 32399-1600

Mr. Alvin H. Weinberg

South Florida Reptile Exchange 20510 Glades Cutoff Road

Port St. Lucie, Florida 34987

Colonel Robert M. Brantly Executive Director

Game and Fresh Water Fish Commission Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600

James Antista, General Counsel

Game and Fresh Water Fish Commission Bryant Building

620 South Meridian Street Tallahassee, Florida 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 ten 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: 92-005874

Orders for Case No: 92-005874