STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY WYSONG,

vs.

Petitioner,

Case No. 17-5622

FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 20, 2017, by video teleconference at sites in Tallahassee and Tampa, Florida, before the Honorable Francine M. Ffolkes, a designated administrative law judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: William John Cook, Esquire

Barker and Cook, P.A. Suite 1040

501 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Tyler N. Parks, Esquire

Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife

Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the Petitioner, Kimberly Wysong, is entitled to approval of her application to add authorization for the family giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale.

PRELIMINARY STATEMENT

On January 30, 2017, the Respondent, Florida Fish and Wildlife Conservation Commission (Agency or FWC), received the Petitioner’s application to add authorization for the family giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale (Application ID 69969). The Agency denied her request on May 26, 2017, on the grounds that she did not have at least 1,000 hours in the care, feeding, handling and husbandry of giraffidae and other similar species. On June 15, the Petitioner filed a Petition for Administrative Proceeding, which was referred to DOAH on October 13.

The parties filed the Joint Prehearing Stipulation on December 11 and their Joint Exhibits on December 15. The final hearing was held on December 20. At the final hearing, the parties’ Joint Exhibits 1 through 14 were admitted into evidence. The Petitioner presented the testimony of Rhudy Holly, owner/operator of Micanopy Zoological Preserve; and the Petitioner also testified on her own behalf. The Agency

presented the testimony of Steven McDaniel, Investigator assigned to the Captive Wildlife Office.

A one-volume Transcript of the final hearing was filed on January 10, 2018. The parties filed proposed recommended orders, which were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. The Petitioner currently holds a license to handle certain Class I and/or Class II animals, e.g., Class I baboons and Class II primates. She is currently employed by Jerry Holly, and along with other full-time and part-time employees, takes care of a number of exotic animals.

2. The Agency is responsible for determining if applicants meet the criteria for issuance of a license, permit or other authorization to possess giraffidae under Florida Administrative Code Rules 68A-6.002(3), 68A-6.0011 and 68A-6.022.

   The Application

   
   

3. On January 25, 2017, the Petitioner wrote to the Agency requesting to add giraffidae to her license. The application included two letters of recommendation and a spreadsheet detailing 1,003 hours spent working with a giraffe owned by Rhudy Holly. The information that the Petitioner sent to the Agency is the type of information she and others in her industry

   
   

   typically submit when requesting authorization to handle other animals. In response to a request for additional information, the Petitioner provided clarification of her hours and a copy of her current license.

4. The spreadsheet documented hours spent with the giraffe between October 19, 2015, and January 23, 2017. The documented time averaged six hours per day and showed that the time was spent doing a combination of enrichment, cleaning, husbandry/handling, and feeding. The Petitioner testified that she noted her hours on a daily basis and then entered the hours into an Excel spreadsheet at the end of each week.

5. For the first two weeks, the Petitioner started working with the giraffe under the supervision of its owner, Rhudy Holly. Mr. Holly has had his license to handle giraffes for at least five years and started working with them around 2007.

   Mr. Holly taught the Petitioner how to take care of the giraffe. He went over the basics until he was comfortable that she understood the giraffe’s behavior and mannerisms and she could safely handle the giraffe. He checked on her progress periodically. He also has an employee who works with the giraffe who was also available to the Petitioner for any questions or help with the giraffe.

6. The Petitioner described a typical day working with the giraffe. In the mornings, she spent about two and a half hours

   
   

   cleaning the feed area, then gathering and loading fresh feed. Cleaning the feed area requires shifting the giraffe out of the barn to his outdoor enclosure. Coaxing the giraffe to leave the barn and go outside can take up to 45 minutes because the giraffe is a shy and skittish animal and cannot be rushed. Once the giraffe is outside, the Petitioner cleans the feed area including his troth and buckets and then refills them. She then coaxes the giraffe to come back into the barn using cut branches (“browses”), romaine lettuce or various fruits. Mr. Holly testified that two and a half hours was typical for these activities when you are learning how to handle and take care of the giraffe.

7. At midday, the Petitioner returned for about two hours to clean the feed area of the barn again and also to pressure wash the barn. Mr. Holly testified that the barn is large and two hours was not an unusual amount of time to spend on these activities.

8. In the afternoon, the Petitioner returned for about one and a half hours to clean and shift the giraffe back into the barn. Each visit included enrichment. Enrichment consisted of spending time interacting with the giraffe, which can include stimulation and entertainment using branches, treats, and even spoons hung on the fence for play.

   
   

9. The Petitioner was able to devote an average of six hours per day to taking care of the giraffe because she has a full-time employee who helps take care of the primates and a part-time employee who helps with cage repairs and maintenance.

   The Denial

   
   

10. On May 26, 2017, the Agency issued its Notice of Denial. It stated that because the Petitioner’s current job is full-time, “it does not appear that [she] had time to obtain the required experience hours for giraffidae.” The denial went on to state that the Agency “has reason to believe that six hours per day is an unreasonable amount of time to spend caring for one giraffe and therefore, that these hours have been falsified.” Furthermore, the denial stated that the Petitioner “in a conversation with FWC Investigator Steven McDaniel . . . stated [she] spent about half of the documented experience hours sitting and observing the giraffe.” The denial states that “observation time” cannot be claimed to meet the experience requirements of the rule.

11. The Petitioner and Mr. Holly testified that there were no chairs at the giraffe’s barn and enclosure for “sitting.” In addition, Mr. Holly testified that references to observation was time spent using branches and other treats for enrichment, to learn and understand the giraffe’s “body language and behavior,” and “was also a way for them to sort of build a bond.” In his

    
    

    opinion these activities were part of husbandry, i.e., “everything that goes into taking care of that giraffe.” The Agency did not offer any contrary factual or expert testimony regarding husbandry of giraffes.

12. The Petitioner testified persuasively that she expended the time required to obtain her experience hours, that she did not falsify the hours submitted in her application, and that she did not spend half of her hours just sitting and observing the giraffe. Investigator McDaniels’ testimony showed that the Agency only made a cursory attempt to verify the Petitioner’s hours. The Agency did not contact Mr. Holly, although he wrote a letter of recommendation as part of the Petitioner’s application; and Investigator McDaniel did not actually observe the Petitioner’s interactions with the giraffe.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the subject matter of this proceeding and the parties under sections 120.569 and 120.57(1), Florida Statutes (2017).

14. The Petitioner has the burden of proving her entitlement to the license by a preponderance of the credible evidence. See Dep’t of Banking & Fin. v. Osborne Stern, 670 So.

    2d 932, 935 (Fla. 1996); Dep’t of Transp. v. J.W.C. Co., Inc.,

    
    

    396 So. 2d 778, 788 (Fla. 1st DCA 1981). The Petitioner carried her burden.

    
    

15. Under rule 68A-6.002 giraffes are Class II wildlife.

    
    

    Rule 68A-6.022(5) requires applicants to have at least 1,000 hours over one year of “substantial practical experience” in the “care, feeding, handling and husbandry” of the species for which the permit is sought. Based on the above findings of fact and the evidence adduced at the hearing, the Petitioner met this requirement.

16. Rule 68A-6.022(5) also requires that an applicant

provide:

1. 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. Examples of such organizations or institutions include, but are not limited to, universities, public service agencies, zoological associations, herpetological societies and veterinarians.

2. Additional documentation may include records of prior permits for the keeping of captive wildlife, employment records, and any other competent documentation of the requisite experience.

* * *

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.

17. The evidence adduced at the hearing proved that the Petitioner provided all the required information to obtain the license. The evidence adduced at the hearing also showed that neither the Petitioner nor Mr. Holly provided “false information to document the [Petitioner’s] experience.”

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that FWC enter a final order granting the Petitioner’s request to add giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale.

DONE AND ENTERED this 13th day of February, 2018, in Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

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 13th day of February 2018.

COPIES FURNISHED:

William John Cook, Esquire Barker and Cook, P.A. Suite 1040

501 East Kennedy Boulevard Tampa, Florida 33602 (eServed)

Tyler N. Parks, Esquire Florida Fish and Wildlife

Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600 (eServed)

Bridget Kelly McDonnell, 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.

Docket for Case No: 17-005622

Orders for Case No: 17-005622