STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JERRY HOLLY,
vs.
Petitioner,
Case No. 15-3310
FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION,
Respondent.
/
RECOMMENDED ORDER
This case was heard, pursuant to notice, on October 27 through 29, 2015, in Tampa, Florida, before W. David Watkins, an Administrative Law Judge (ALJ) of the Florida Division of Administrative Hearings.
APPEARANCES
For Petitioner: William John Cook, Esquire
Barker & Cook, P.A. Suite 790
501 East Kennedy Boulevard Tampa, Florida 33602
For Respondent: Ryan Smith Osborne, Esquire
Florida Fish and Wildlife Conservation Commission 620 South Meridian Street
Tallahassee, Florida 32399-1600 STATEMENT OF THE ISSUE
Whether Respondent established that this case meets the criteria for the denial and revocation of Petitioner’s Class I,
Class II, and Class III captive wildlife permits pursuant to Florida Administrative Code Rule 68-1.010 and chapter 379, Florida Statutes (2015).1/
PRELIMINARY STATEMENT
Petitioner has been licensed by the Florida Fish and Wildlife Conservation Commission (FWC), and its predecessor agencies, to possess captive wildlife for the purposes of exhibition or sale since 2002. On March 10, 2015, FWC issued Petitioner a Notice of Intent to Deny/Revoke (Notice), notifying Petitioner of its intent to deny his applications for licenses to possess Class I, Class II, and Class III wildlife for the purpose of exhibition and public sale. The same Notice advised Petitioner of FWC’s intent to revoke his Game Farm License, citing a history of violations of FWC rules and statutes at the facility.
On June 5, 2015, Petitioner timely submitted a Petition for Administrative Hearing (“Petition”) challenging FWC’s intended action. On June 9, 2015, FWC referred the matter to the Division of Administrative Hearings (“DOAH”) “to conduct all necessary proceedings required by law and to submit a recommended order to the Commission.”
On June 29, 2015, the undersigned entered an Order setting the matter for final hearing on August 11 through 13, 2015.
However, on July 14, 2015, the parties filed a joint motion for
continuance, which the undersigned granted. Thereafter, the matter was set for final hearing to commence on October 27, 2015. On October 26, 2015, the parties filed their Joint Prehearing Stipulation.
As noticed, the hearing was held on October 27 through 29, 2015 in Tampa, Florida. FWC Investigators Richard Brown and Steve McDaniel testified for FWC. Investigator Brown was accepted as an expert in the inspection of captive wildlife facilities, captive wildlife matters, and FWC rules and regulations relating to captive wildlife. FWC’s Exhibits A, C, D, E, G through Z, AA, and BB were received in evidence.
For his part, Petitioner called as witnesses Janice Jones, Polly Rivers, Joanie Swanson, and Dr. Thomas Callahan.
Petitioner also testified on his own behalf. Petitioner’s Exhibits 1 through 12, 14, 25, 30 through 39, and 41 were received in evidence.
In addition to the parties individual exhibits, Joint Exhibits 1 and 4 were received in evidence. The two-volume Transcript of the final hearing was filed at DOAH on November 24, 2015.
At the conclusion of the hearing, the parties requested that they be given until December 21, 2015, to file their proposed recommended orders. That request was granted.
However, the parties subsequently filed a request to extend the
deadline for filing proposed recommended orders, and on December 28, 2015, an Order was entered granting an extension until January 6, 2016. Both parties timely filed Proposed Recommended Orders which have been carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
This action arises from FWC’S decision to revoke and deny Petitioner, Jerry Holly’s, licenses to possess Class I, II, and III wildlife for exhibition and sale and his game farm license application.
Through his company, Shilo Zoo and Park, Petitioner owns and operates a facility on 817 acres near Micanopy, Florida, where he raises animals for sale. Petitioner has held his licenses since 2002.
FWC first inspected Petitioner’s animal operations on June 12, 2002. Investigator, Rick Brown, conducted the inspection and found certain caging and enclosure deficiencies. By the next inspection, conducted on October 2, 2002, Brown reported that Petitioner had made the necessary corrections and recommended permit approval.
By April 7, 2004, Petitioner’s inventory of animals had increased significantly, and on that day, Investigator, Janice
Jones, accompanied by Brown, reported observing additional caging, enclosure, and other deficiencies, including:
the zebra fencing was four feet high instead of the required six foot height;
the lemur caging was constructed of 18- gauge material rather than the required 14-gauge material;
the bongo enclosure was six feet high rather than the required eight foot height;
the prevost squirrel caging was constructed of 16-gauge material rather than the required 14-gauge material;
no stimulation or manipulation devices were provided to the lemurs; and
when asked, Petitioner was unable to produce business transaction records upon request.
Regarding the April 7, 2004, inspection, Jones testified that Petitioner “had a couple issues at the time, but overall the facility was very well.”
By the time of the next inspection, on June 14, 2004, Petitioner had corrected all of the deficiencies noted in the April 7, 2004, inspection.
On January 28, 2005, Investigator Jones reported that Petitioner’s enclosures exceeded caging requirements, and she recommended that Petitioner be issued a Class I license for Gibbons monkeys. At the time, the rules required a five-foot
fence and Petitioner had an eight-foot perimeter fence encircling his property.
Investigator Jones reported on January 14, 2007; February 12, 2007; June 21, 2007; June 22, 2007; October 22, 2007; December 19, 2008; and January 19, 2010, that Petitioner’s enclosures met or exceeded minimum requirements. Petitioner also was approved for rhinoceros and bears, and Jones reported that Petitioner’s animals appeared healthy. Although Jones testified that “more likely than not,” Petitioner could not document all of the coming and going of his animals, her
June 2007 and December 2008 reports state that Petitioner’s acquisition paperwork was in order.
Jones testified that she believed that she inspected Petitioner’s facility at least one more time after January 2010, and she could not recall any discrepancies.
While Jones was Petitioner’s inspector, the FWC sometimes asked Petitioner to hold animals that had been abandoned or were under quarantine. In one instance, the agency issued Petitioner a special permit to keep a chimpanzee.
On one occasion, Petitioner contacted Jones about an alligator that was on his property and asked for her assistance in removing it.
Petitioner’s former USDA Inspector, Dr. Thomas Callahan, testified that during his tenure, Petitioner’s animals
and his facility looked very good. He also inspected Petitioner’s paperwork and could not recall ever having a problem. Dr. Callahan retired in 2006.
On April 21, 2009, a patas monkey escaped from Petitioner’s facility. Jones believed that the monkey escaped during a transfer and not due to a problem with caging. She had inspected the caging and found that it was acceptable, “everything looked good.” She also found that Petitioner was forthcoming about the monkey and did not try to hide the escape. Jones testified that an escape in and of itself is a violation of FWC rules.
Petitioner hired Kim Greely in 2012 to take care of his animals and the paperwork. In addition to Ms. Greely, Petitioner employed other individuals to care for the animals on a daily basis. If Ms. Greely was not available on a given day, another employee would cover for her.
The first FWC inspection that took place after Greely was hired occurred on October 17, 2012. In that inspection, Investigator Brown noted several caging, maintenance, and sanitation problems, including:
the spider monkey cage door was unlocked;
caging U-nails were pulling out of the two-by-six beams, creating a gap between the beam and the containment wire;
dens for the animals were not accessible to the animals;
excessive rust was present on much of the facility caging;
a broken padlock on the Patas monkey cage was discovered. Another padlock was located and the cage was locked during the inspection;
the wooden nest box in the Patas monkey cage needed to be secured as it was wobbling and posed a risk of injury to the animal;
most of the monkey cages had no manipulation devices or stimulation devices;
some of the animals had no elevated shelving or had broken elevated shelving. This is required for some species, as they prefer to sit on an elevated perch rather than on the ground;
there was a torn metal conduit covering the guillotine cable to the gibbon lockdown area, which posed a risk of injury to the animal;
erosion was occurring under the exterior door of the gibbon cage and beneath the Ringtail lemur cage;
one of the corners of the foundation supporting two cages was unsecured and not stable. The cages were teetering on a couple of pieces of wood and a cinder block;
rotted and/or moldy lumber and other materials were used for and present in the caging;
there were unsecured seams in the caging materials, causing gaps in the caging, which poses a risk of escape;
in many of the cages, the material used to construct the cage was not of sufficient strength;
three of four dens had rat feces, and in one den, three live rats were observed;
excessive feces were present in a lemur cage;
standing water was present in the Tamarin cage.
According to Brown, the excessive number of deficiencies indicated that Petitioner was unable or unwilling to comply with the rules. Brown issued a criminal citation to Petitioner as a result of the October 17, 2012, inspection.
On April 25, 2013, Investigators Rick Brown and
Wayne King conducted a follow-up inspection. Brown noted in his inspection report that most of the violations were corrected, but some also remained uncorrected. The report also reflects that the majority of Petitioner’s enclosures were in compliance with FWC requirements.
Consistent with Brown’s report documenting corrections, Brown sent an e-mail on May 21, 2013, to Mindy Wagner, FWC senior clerk, stating, “I was out there a couple weeks ago and Mr. Holly has made some serious progress to
correct those identified issues. As for being on the up and up, seems to be so far.”
On May 29, 2014, Investigator Brown and FWC Officer, John Wilke, conducted a follow-up inspection. Brown noted in his inspection report that most of the violations noted during the April 25, 2013, inspection had been corrected. However, several additional rule violations were documented, including:
two-by-six boards used to close a gap between two sealing panels in a cage were rotting and were pulling apart;
an elevated den needed to be attached to the caging and actually elevated rather than sitting on the floor of the cage as was discovered;
rust on a horizontal beam on a cage needed to be treated;
the broken weld in a ceiling panel needed to be repaired;
manipulation and stimulation devices still needed to be provided in some of the cages;
dens needed to be provided in some cages. Dens are required to provide the animal a place to retreat to and to provide protection from the elements;
some of the cages did not meet the required dimensional requirements or were too small;
no safety entrance for the Capuchin monkey cage was present;
Petitioner was housing a macaque in a cage without a safety entrance. This meant the animals could not be safely removed from the cage to allow for cleaning;
the floor of the macaque cage was covered with feces, likely as a result of not having a proper safety entrance;
some of the caging materials did not meet the strength requirements;
a portion of the zebra fencing had been damaged, bringing the height to five feet, two inches, rather than the required six feet;
the zebra fencing wire was rusting and sections were becoming unattached, creating an inconsistent containment barrier;
the giraffe paddock had been damaged and was in need of repair.
Brown acknowledged that several of the caging discrepancies noted in the May 29, 2014, inspection involved violations of a few inches. He testified that if he tacitly approved cages off by a few inches it would be a “slippery slope” and he would face questions from other licensees about the standards. Brown likened the concept to a highway patrol officer who does not give a ticket to a driver he pulled over for going 80 miles per hour. It creates tacit approval for circumstances that are not authorized.
Investigator, Steve McDaniel, conducted the next inspection on November 24, 2014. Investigator Brown was not
with him. It was the first time McDaniel had been to Petitioner’s facility, and his inspection report was lengthy. McDaniel found several cages with rust, some excessive, some just surface rust, and some of the cages were not sanitary, with old fecal waste matter. There were also cages that were too small and some unlocked cages were observed.
On cross-examination, McDaniel admitted that several of the pictures in his report in fact depicted surface rust, not excessive rust. McDaniel also clarified that what he was describing as unlocked cages actually were open doors to sheds that contained cages. The cages within the sheds were locked. McDaniel acknowledged that had he seen an unlocked cage within a shed he would have noted it on the report.
McDaniel further conceded that most of Petitioner’s cages were actually larger than what the agency required. The only ones that had issues had some lemurs and a Celebes ape. The lemur cages were off by five, six, or eight inches.
Investigator McDaniel returned to Petitioner’s facility on December 11, 2014. He was with Investigator Brown to “check up on some things” and because of a tip of some unauthorized animals being kept there. The report states that McDaniel and Brown found two animals with the characteristics of bobcats. In addition, the report noted that animals were in substandard caging due to the cold weather outside, and only on
a temporary basis. McDaniel also noted that there were new shelters being built for the cages in the lower area. The lemur cages and capuchin cage had been modified with four-layer plywood, one-half inch thick, in order to increase the height of the cages to exceed the required height. However, the length and width of the cages were still too small, and the report noted that Petitioner would need to request a deviation.
Following the December 11, 2014, inspection, McDaniel issued a criminal citation, which was still with the state attorney’s office at the time of the hearing.
McDaniel’s report from his November 24, 2014, and December 11, 2014, inspections do not indicate whether any of the deficiencies from the May 29, 2014, inspection had been corrected. Comparing the two reports, however, it is apparent that many of the violations noted in the earlier report had been corrected as of December 11, 2014. And as noted above, McDaniel reported that on December 11, 2014, Petitioner was in the process of correcting issues identified on November 24, 2014.
On January 28, 2015, Investigators Brown and McDaniel conducted an unannounced inspection and took numerous photographs of their observations. They were there because of a tip that some animals were being kept on the property illegally.2/ Several violations were noted during the inspection, including:
the zebra perimeter fencing had not been corrected and was not of the required height;
sanitation and caging issues were still present at the facility;
the Celebes monkey caging material met the strength requirement, but did not meet any of the other requirements;
the Patas monkey cage and the Celebes apes cages still lacked a safety entrance;
some of the cages still did not meet minimum size requirements.
Also during this inspection, it was discovered that an alligator was being maintained on the second floor of the barn. Petitioner was not licensed to possess an alligator, and the animal had been placed in a cage that was too small. Petitioner was in Sri Lanka at the time the alligator was found, and it is unclear from this record who put the alligator in the cage. The alligator was unharmed, and the FWC officers released it to the wild.
Investigator McDaniel returned on February 12, 2015, to deliver a copy of the Notice of Intent to Deny/Revoke to Petitioner, and to check on the Celebes ape and Patas monkey. On that visit, he noted several prairie dogs in an 18-square- foot cage. According to McDaniel, most of the animals had extreme hair loss, which he surmised could be a sign of disease or stress due to the small cage. McDaniel also found that the
Celebes ape had not been moved to a larger cage, although the patas monkey had been moved.
Petitioner testified that he had about 20 prairie dogs in an 18-square-foot cage. The animals were being temporarily kept in the cage, as Patty Rivers (the owner of a company that provides animals for motion pictures) was coming over to see them. The animals were missing hair, which Petitioner testified could simply have been due to annual shedding.
Investigator Brown assisted in drafting a denial letter to Petitioner concerning Petitioner’s prospective employee, Cindy Bardin. In one of his comments regarding the draft letter, Brown recommended that the agency remove a statement asserting that Petitioner’s violations were putting the public at risk.
Over Petitioner’s objection, evidence of an inspection conducted on June 12, 2015, which was after issuance of the Notice of Intent to Deny/Revoke on March 10, 2015, was received in evidence. The investigative report notes that the majority of the deficiencies noted in earlier inspections had been corrected, however there were some minor ongoing and new violations observed. Specifically, some exterior cage doors were found unlocked (although the interior doors were locked), some cages were still without manipulation devices, and sanitation issues still remained in some of the cages.
Joanie Swanson testified on behalf of Petitioner. She holds a Class III license and owns capuchin monkeys. In 2013, when her husband was getting ready to retire, they obtained a list of Class I and Class III licensees from FWC and looked at about ten properties in central Florida to house their animals, including Petitioner’s.
According to Ms. Swanson, Petitioner’s facility was far superior to the others they visited. The Swansons visited Petitioner’s facility about a half dozen times before they moved any animals, and every time it was clean and beautiful. Petitioner’s facility satisfied all of the Swansons’ requirements. It was a safe environment, it was gated, and the caretakers were very good. It was clean, safe, secure, licensed, and the cages were bigger than she expected. The facility had automatic water. Ms. Swanson testified that she was amazed at what some of the other facilities she visited did not have.
Ms. Swanson’s testimony regarding the quality of Petitioner’s facility in 2013 is credited.
Ms. Swanson also met Kim Greely, Petitioner’s employee. When she first met Greely, Greely told her that Petitioner was very protective of his animals. Greely said that if there ever was a problem with an animal, Petitioner would
make sure that it was taken to the vet. He would drop everything to care for his animals.
The evidence established that it was not uncommon for the FWC inspectors to request business records documenting the sale and acquisition of animals, and to be told that the records were not available. And occasionally, when records were provided to the inspectors, they were incomplete.
It is important that animals are sold to a licensed person to ensure that the person taking it has the required experience and the required caging to properly care for the animal. Business transaction records document if this occurs during a sale, purchase, or transfer. Moreover, records of sale, purchase, or transfer can be important to track disease transmissions, particularly in birds. Records of sale, purchase, or transfer are also important to prevent the illegal trade of wildlife.
Petitioner buys most of his animals in sales in Tennessee, Missouri, and Ohio. At the sales, Petitioner gives the seller an acquisition form. The seller fills out his part and then Petitioner’s employee, Kim Greely, would complete the form. When Petitioner received a bill listing the animals he bought, he would give the records to Greely.
Petitioner entrusted Greely with keeping the records of the transactions. She received all of the sale bills and was
supposed to keep the records. Petitioner was under the mistaken belief Greely was providing the records to the inspectors.
Greely apparently told Investigators Brown and McDaniel that she only received records that Petitioner provided to her. In any event, Petitioner acknowledged at hearing that he was ultimately responsible for keeping records of transactions and providing them to inspectors when requested. The evidence established that on several occasions Petitioner failed in this responsibility.
Petitioner admitted to pleading guilty in 2004 to misdemeanor charges for improper caging, and adjudication was withheld. More recently, Petitioner pled guilty in 2012 to failure to maintain cages in compliance with regulations, and adjudication was withheld.
Petitioner acknowledged that there have been three escapes from his facility in the past 15 years. Hornbill birds escaped in 2004, and a Patas monkey escaped in 2009. No information was provided regarding the third escape. Likewise, it is unclear as to how the animals escaped, how long they were fugitives, or whether the escapes were attributable to deficient caging.
No evidence was presented that any of the escaped animals were injured as a result of their escape, or that any human beings were adversely affected in any way.
Petitioner has been licensed by FWC since 2002 and it is undisputed that his livelihood will be impacted by FWC’s proposed action. In Petitioner’s words, the financial impact would be “devastating”, possibly leading to bankruptcy. However, the extent of the impact was not quantified as Petitioner did not provide records of sales or profits from sales, or give an indication of his annual income earned from the sale of wildlife.
At the conclusion of Petitioner’s testimony, the undersigned questioned Petitioner about the cause of inspection deficiencies at this facility in recent years:
“HEARING OFFICER: You were here when Inspector Brown testified that in his opinion he doesn’t know whether you were unable or unwilling to comply with applicable FWC regulations.
Do you agree with the notion that you are unwilling or unable to comply with those regulations?
THE WITNESS: I had some, again, health issues early on. I’m past that now, and I think that I can continue on. Again, I was more of a part-time guy before. Now, again, I think I have to be full time until I get all this turned around.
HEARING OFFICER: How do you plan to get it all turned around?
THE WITNESS: Well, I will be at that farm every day making sure everything is done at this point. I have an excellent girl that – again, she also has a license, so she is more than capable of taking care of everything, but I will be there looking over
her shoulder and that’s how I explained it to her when I hired her.”
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
FWC is the agency with exclusive jurisdiction to regulate all wild animal life in Florida. Art. IV, § 9, Fla. Const. All wild animal life includes captive wildlife.
In order to provide humane treatment and sanitary surroundings for wild animals kept in captivity, all individuals that have or possesses captive wildlife for the purpose of public display or public sale must have a license from FWC.
§ 379.3761(1), Fla. Stat.
This case involves FWC’s revocation and failure to renew Petitioner’s licenses and affects Petitioner’s livelihood. As such, FWC has the burden of proving its allegations with clear and convincing evidence. See Ferris v. Turlington,
510 So. 2d 292, 295 (Fla. 1987) (establishing clear and convincing evidence standard for license revocation proceedings); State Dep’t of Banking & Fin. v. Evans, 540 So. 2d
884, 886 (Fla. 1st DCA 1989) (“refusal to renew a license to a person who has once demonstrated that he possesses the statutory
prerequisites to licensure cannot be used as a substitute for a license revocation proceeding”).
“Clear and convincing evidence” means that the evidence must be found to be credible, the facts to which the witnesses testify must be distinctly remembered, the testimony must be precise and explicit, and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker,
429 So. 2d 797, 800 (Fla. 4th DCA 1983).
FWC’s specific allegations are contained in FWC’s Notice of Intent to Deny/Revoke, dated March 10, 2015. The Notice details several inspections from April 7, 2004 through February 14, 2015, during which time numerous violations were documented. This tribunal may consider only the allegations in the Notice, as predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act. Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Similarly, due process requires that only the allegations in an administrative complaint may be considered in imposing disciplinary sanctions. Matters not charged in an administrative action cannot be considered as violations. See
Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31, 34 (Fla. 1st
DCA 1993); Klein v. Dep’t of Bus. and Prof’l Reg., 625 So. 2d 1237 (Fla. 2d DCA 1993). Accordingly, in considering the recommendation set forth herein, the undersigned has disregarded alleged violations that post-date the Notice. However, even had the undersigned considered such documents, his recommendation would not have changed.3/
Florida Administrative Code Rule 68-1.010(5) requires FWC to consider the following factors when determining whether to suspend, deny, or revoke a license:
The severity of the conduct;
The danger to the public created or occasioned by the conduct;
The existence of prior violations of Chapter 379, F.S., or the rules of the Commission;
The length of time a licensee or permittee has been licensed or permitted;
The effect of denial, suspension, revocation or non-renewal upon the applicant, licensee, or permittee’s existing livelihood;
Attempts by the applicant, licensee or permittee to correct or prevent violations, or the refusal or failure of the applicant, licensee or permittee to take reasonable measures to correct or prevent violations;
Related violations by an applicant, licensee or permittee in another jurisdiction;
The deterrent effect of denial, suspension, revocation or non-renewal;
Any other mitigating or aggravating factors that reasonably relate to public safety and welfare or the management and protection of natural resources for which the Commission is responsible.
Severity of the Conduct, and Prior Violations
In considering the severity of the allegations, the undersigned notes that Investigator Brown testified concerning the agency’s priorities. According to Brown, the agency’s first and foremost duty is public safety, which is the reason for the material and strength requirements for caging. The second issue after public safety is animal welfare. That is why the enrichment and sanitation rules exist. The third issue is documentation. The agency needs to make sure that wildlife within the state of Florida is moving from a licensed person to someone who has already demonstrated qualifications (through licensure) to possess such animals. The fourth category is the needs of the owner. According to Brown, the rules contemplate deviations from strict compliance if the licensee can demonstrate that they have met the burden of the other requirements, i.e., public safety and animal welfare.
While the existence of prior violations is a separate consideration from severity, FWC’s central argument for its decision to revoke Petitioner’s licenses is that Petitioner has
committed the same violations on a consistent basis for over a decade. For example, FWC’s prehearing statement avers that the decision to revoke Petitioner’s licenses was based on “over a decade of site investigations, warnings, notices of non- compliance, phone calls to the Petitioner, criminal citations, and a voluminous record of lack of compliance and failure to provide records of transfer, sale, and purchase of Petitioner’s animals.” (Joint Prehearing Statement). Similarly, Brown testified that Petitioner’s licenses should be revoked because Petitioner’s noncompliance has been “consistent and systematic and ongoing for more than a decade.” In other words, FWC asserts that cumulative violations over more than ten years warrant revocation even if individual violations do not.
Consequently, the Court will consider the severity and duration of the violations together. See Fla. Admin. Code R 68- 1.010(5)(a), (c).
The first violations referenced in the Notice were caging violations from April 7, 2004. Petitioner corrected those violations to the agency’s satisfaction by the time of his next inspection on June 14, 2004. Over the next six years, and perhaps longer, subsequent inspections revealed no caging violations, and the record reflects that Petitioner exceeded the applicable requirements and actually partnered with FWC in
handling misplaced or confiscated animals. In addition, the testimony of both Investigator Jones and former USDA Inspector Callahan established that Petitioner’s facility was in compliance and his animals were in good condition through at least 2010.
FWC did present evidence of violations during inspections that occurred on October 17, 2012; April 25, 2013; May 29, 2014; November 24, 2014; December 11, 2014; January 28, 2015; and February 12, 2015. This time period spans less than three years, not a decade, with the last four inspections taking place in less than four months.
There was no credible evidence that Petitioner’s animals were unhealthy or suffered as a result of the caging violations. For example, some of the animals found in smaller cages were getting ready for shipment or were in temporary shelters due to cold weather. Respondent failed to show by clear and convincing evidence that Petitioner committed severe caging violations over more than a decade.
FWC’s rules provide that any “condition” that results in an escaped animal is a violation. Fla. Admin. Code R. 68A- 6.0023(4). The Notice references an escaped patas monkey in 2009, and Respondent introduced evidence of an escaped Hornbill bird. It is unclear how the animals escaped, but FWC failed to
show by clear and convincing evidence that escapes occurred due to any caging issues or conditions in violation of the applicable rule. In addition, given the number of animals in Petitioner’s possession, only three escapes in 13 years would not be considered a severe violation.
Petitioner admitted that FWC has not received a complete record of his sale and transfer of animals. According to Petitioner, he imprudently entrusted Ms. Greely with the responsibility for maintaining his records. It is unclear whether the missing records were the result of Petitioner’s intent to hide transactions, as FWC argues, or whether
Ms. Greely simply misplaced them or withheld them for reasons unknown.
It was undisputed that FWC officers found an alligator on Petitioner’s premises. Petitioner was not licensed to possess an alligator, and the animal had been placed in a cage that was too small. Petitioner was traveling at the time the alligator was found, and it is unclear who put the alligator in the cage. The alligator apparently was unharmed, and the FWC officers released it to the wild. On one prior occasion, Petitioner had enlisted the FWC’s assistance in removing an alligator from his property. Given the circumstances, the
undersigned does not find that Petitioner’s possession of the alligator was a severe violation.
The November/December 2014 inspection report notes that Investigator Brown discovered two cats with the characteristics of bobcats on Petitioner’s property. While Petitioner was not licensed to possess bobcats, Respondent failed to credibly establish that the animals in question were, in fact, bobcats.
Respondent failed to present any evidence of a May 3, 2004, conviction or a September 14, 2010, incident involving the sale of two rhesus macaque monkeys referenced in the Notice, and therefore these allegations will not support revocation.
It is undisputed that Petitioner did not appear to have complete records of his animal acquisitions available for inspection on the dates in question. Accurate recordkeeping plays an important role in public safety in that records ensure that wildlife within the state of Florida is moving from a licensed person to a person qualified to handle the animals. A public health issue is also presented when potentially diseased animals are sold and their whereabouts cannot be ascertained due to a lack of documentation. The failure to maintain accurate records of animal acquisitions, sales, and transfers poses a serious public health risk.
While Petitioner may have delegated to Ms. Greely responsibility for maintaining sales records, Petitioner is ultimately responsible for the actions of his employees and for ensuring compliance with FWC’s recordkeeping requirements. Danger to the Public
FWC considers appropriate animal containment as its chief public safety concern in applying its regulations. Here, the alleged violations that would fall into the category of danger to the public primarily involved enclosures in need of repair, substandard caging, and unlocked cages. Respondent failed to show by clear and convincing evidence that the violations it proved demonstrated a significant danger to the public.
The inspection reports introduced at hearing demonstrate that there were few, if any, cages in such dire need of repair that there was a substantial risk that an animal might escape. While it is true that Petitioner used 12-gauge wire for some monkey cages instead of the required 11 1/2-gauge, FWC did not establish that a slightly smaller gauge wire posed a significant risk of escape. And while some of the monkey cages were contained within sheds that acted as dens, and agency inspectors found some of the shed doors were open or unlocked, there was no evidence that the cages within the sheds were unlocked. While these were technical violations, Respondent
failed to show that the violations posed a significant risk of escape or danger to the public.
Length of Time that Petitioner Has Been Licensed
Petitioner is an experienced exotic animal collector who has been licensed since 2002. Up until October of 2012, Petitioner’s record with the FWC and the USDA was good, and Petitioner enjoyed a constructive and collaborative relationship with those agencies.
The Effect of Revocation on Petitioner’s Livelihood
Petitioner testified that losing his licenses would be devastating to him financially and could result in him filing for bankruptcy. Revocation would also adversely affect Petitioner’s four or five full-time employees, as well as his wife, who has a 50-percent interest in the business. Based on this unrebutted testimony, the undersigned finds that revocation would have a significant negative effect on Petitioner’s livelihood.
Attempts to Correct or Prevent Violations
One of the agency’s central arguments for revocation is its contention that for a period of time spanning “over a decade,” Petitioner has been cited for numerous uncorrected violations. (Prehearing Stipulation, Respondent’s Position Statement).
While some violations were noted in an April 7, 2004, inspection, by the time of the unannounced follow-up inspection on June 14, 2004, all of the fencing and caging issues brought to Petitioner’s attention during the April 7, 2004, inspection had been corrected. Subsequent to the April 2004 inspection, the next inspection report introduced in evidence was of the October 17, 2012, inspection. Thus, during the period June 2004 to October 2012, there is no evidence to conclude that Petitioner was in violation of any FWC statutes or rules.
FWC’s contention that Petitioner has been noncompliant with its rules for “over a decade” is rejected. Rather, the evidence established that Petitioner’s troubles occurred within the three years preceding the final hearing.
FWC’s contention that Petitioner was unwilling or unable to address deficiencies is also rejected. Petitioner credibly testified that he and his employees were continuously making improvements to the facility and to address deficiencies. Petitioner did not believe it was acceptable for animals to be in cages or enclosures with gaps in them or to have animals in dens with unlocked doors. While Petitioner was dealing with health issues, he fully expected that his employees were doing their job. The FWC inspection reports do document some uncorrected violations; however, subsequent inspection reports establish that most of the violations were corrected. For
example, Investigator Brown testified at length on direct examination that as of the April 25, 2013, inspection, Petitioner had not corrected several deficiencies from the October 17, 2012, inspection, including multiple failures relating to enrichment for the lemurs. In support of Brown’s testimony, Respondent introduced what turned out to be a draft version of Brown’s report. When shown the correct report, Brown admitted that his earlier testimony was inaccurate. The accurate report demonstrates that the majority of the deficiencies identified in the earlier report had been corrected.
An e-mail Brown sent on May 21, 2013, also contradicts FWC’s contention that Petitioner was unwilling or unable to address cited deficiencies. Brown stated, “I was out there a couple weeks ago and Mr. Holly has made some serious progress to correct those identified issues. As for being on the up and up, seems to be so far.”
Thus, the record contains substantial credible evidence of Petitioner’s attempts to correct or prevent violations, and no evidence of any refusal to correct violations.
Related Violations in Another Jurisdiction
There is no clear and convincing evidence that Petitioner is guilty of violations from other jurisdictions.
Deterrent Effect of Revocation
According to FWC, to allow Petitioner to continue to operate will send a message to other licensees that they will be allowed to continue to operate despite repeated failures to follow FWC rules.
Mitigating or Aggravating Factors
The evidence established that for many years Petitioner had an exemplary facility. It appears that Petitioner’s difficulties with FWC arose in 2012 when, due to health issues, he was forced to rely heavily on Ms. Greely. Before his health issues, Petitioner spent about 80 percent of his time on his wildlife operation. Petitioner was in the hospital several times and assumed his employees were doing what they were supposed to. He was in the hospital during the time when Greely was his employee.
According to Petitioner, he is now healthy and is going to work full time again. He also has terminated
Ms. Greely’s employment and hired a replacement manager who holds Class I, II, and III licenses. It appears that Petitioner has corrected the underlying problems that led the agency to conclude that his licenses should be revoked.
For its part, FWC acknowledges that Petitioner has made some efforts to correct violations over the years, but numerous caging, sanitation, and record violations have
persisted at the facility for years, justifying revocation of Petitioner’s licenses. For example, many of the monkeys at the facility were not provided with dens, shelters, elevated shelving, and manipulation devices, and were left to sit in small cages without stimulation. Some were not even provided protection from the elements. Petitioner has not made an effort to provide FWC with records of acquisitions and dispositions for years.
FWC also asserts Petitioner has been given every opportunity to correct his violations, yet has been unwilling or unable to do so.
According to FWC, even had Petitioner corrected all of the cited violations, denial and revocation of his licenses would still be proper, citing, Melanie Boynes and Tarzan’s Big
Cat Sanctuary v. Florida Fish and Wildlife Conservation Commission, Case No. 12-2909 (Fla. DOAH March 29, 2013).
In Boynes, FWC relied on a different rule as
authorization to deny an application for a Class I and/or Class II license that would have allowed the Petitioner to
operate a facility for big cats. That rule had been repealed at the time of the decision, and the ALJ therefore relied solely on the agency’s bare constitutional authority to exercise regulatory powers. See Boynes, at p. 15. The ALJ in Boynes did
not consider the standard set forth in rule 68-1.010(5).
In addition, Boynes involved the denial of an
application, not a revocation. As such, the Petitioner/applicant in Boynes had the burden of proving her
entitlement to a license by a preponderance of the evidence. See Boynes, at p. 14 (citing Dep’t of Banking and Fin. v.
Osborne Stern, 670 So. 2d 932 (Fla. 1996)). As discussed above, in this case, the agency has the burden of proving by clear and convincing evidence that Petitioner’s licenses should be revoked.
Finally, Boynes is factually distinguishable, as the
circumstances leading to the license denial were more egregious, including tiger cages that lacked structural integrity, an arrest, removal of animals, lack of a required USDA license, and repeated misrepresentations on applications. None of those facts exist here. The Boynes decision is therefore of limited precedential value in this revocation proceeding involving a different burden and standard of proof.
Conclusion
Upon careful consideration of the factors set forth in rule 68-1.010(5), the undersigned concludes that FWC has not proven by clear and convincing evidence that revocation of Petitioner’s licenses is warranted. However, given the numerous violations cited by FWC in recent years, in particular, the failure to maintain accurate records of animals bought, sold, or
transferred, suspension of Petitioner’s licenses is appropriate. Specifically, the undersigned recommends that FWC suspend Petitioner’s licenses for a period of six months, and thereafter until such time as an on-site inspection of Petitioner’s facility reflects substantial compliance with all applicable FWC
statutes and rules.
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further Recommended that the final order suspend Petitioner’s licenses to Possess Class I,
Class II, and Class III wildlife for exhibition or public sale and his game farm license for a period of six months, and thereafter, until such time as an on-site inspection of Petitioner’s facility reflects substantial compliance with all applicable FWC statutes and rules.
DONE AND ENTERED this 1st day of February, 2016, in Tallahassee, Leon County, Florida.
S
W. DAVID WATKINS 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 1st day of February, 2016.
ENDNOTES
1/ All statutory references are to the 2015 version of the Florida Statutes unless otherwise noted.
2/ According to Petitioner, the tipster was Neal Johnson, a former employee at Petitioner’s facility.
3/ The undersigned has also disregarded alleged violations of USDA rules that allegedly occurred on October 31, 2012; October 29, 2013; and January 23, 2014. No representative from the USDA testified concerning these violations and any references to USDA determinations are uncorroborated hearsay that cannot be used to support a revocation. See
§ 120.57(1)(c), Fla. Stat.
COPIES FURNISHED:
William John Cook, Esquire Barker and Cook, P.A. Suite 790
501 East Kennedy Boulevard Tampa, Florida 33602 (eServed)
Ryan Smith Osborne, Esquire Florida Fish and Wildlife
Conservation Commission 620 South Meridian Street
Tallahassee, Florida 32399-1600 (eServed)
Eugene Nichols “Nick” Wiley II, Executive Director Florida Fish and Wildlife
Conservation Commission Farris Bryant Building 620 South Meridian Street
Tallahassee, Florida 32399-1600 (eServed)
Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife
Conservation Commission Farris 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.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 01, 2016 | Agency Final Order | |
| Feb. 01, 2016 | Recommended Order | FWC has not proven by clear and convincing evidence that revocation of Petitioner's captive wildlife licenses is warranted. However, given numerous violations spanning several years, suspension of licenses is appropriate. |
RACHEL ARNOTT vs FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, 15-003310 (2015)
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CHARLES RIVER LABORATORIES, INC. vs FLORIDA GAME AND FRESH WATER FISH COMMISSION, 15-003310 (2015)
SHEILA CHRISTIAN vs PINELLAS COUNTY SHERIFF, 15-003310 (2015)
