STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY NELSON,

Petitioner,

vs.

FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION,

Respondent.

/

Case No. 20-1715

RECOMMENDED ORDER

An administrative hearing was conducted in this case on July 6, 2020, via Zoom, before James H. Peterson, III, Administrative Law Judge with the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Gregory Nelson, pro se

23033 Brouwerton Road

Howey-in-the-Hills, Florida 34737

For Respondent: Rhonda E. Parnell, Esquire

Florida Fish and Wildlife Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner’s application for a license to possess Class II Wildlife for exhibition or public sale should be approved.

PRELIMINARY STATEMENT

By letter dated February 5, 2020, the Florida Fish and Wildlife Conservation Commission (FWC or Commission) notified Petitioner that his application for a license to possess Class II Wildlife for exhibition or public sale had been denied. Petitioner timely requested a hearing to contest the denial and the matter was referred to DOAH to conduct an administrative hearing on the matter.

At the hearing, FWC proceeded first and called the following witnesses: Richard Kenneth Brown, an investigator with FWC’s captive wildlife section; Steven McDaniel, another investigator with FWC’s captive wildlife section; John Conlin, the administrative lieutenant for FWC’s captive wildlife offices; and Petitioner. FWC offered seven exhibits which were pre-marked and received into evidence as Exhibits R-1 through R-5, R-8, R-9 (which was the same as R-5), and R-10. Petitioner testified on his own behalf and offered

13 exhibits received into evidence as P-1 through P-13.

The proceedings were recorded and a transcript was ordered. The parties were given until 30 days after the filing of the transcript in which to file proposed recommended orders. The Transcript was filed on July 9, 2020.

Thereafter, FWC timely filed its Proposed Recommended Order, which has been considered in preparing this Recommended Order. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. FWC is the state agency with exclusive jurisdiction to regulate all wild animal life in Florida. See Art. IV, § 9, Fla. Const.1

   
   

   1 All references to the Florida Constitution, Florida Statutes, and Florida Administrative Code are to current versions that have not substantively changed as applied to the facts in this case.

   
   

2. All persons who possess captive wildlife for the purposes of public display or public sale must have a license from FWC. See § 379.3761(1), Fla. Stat.

3. By rule promulgated by FWC, categories of wildlife for which a license is required are broken down into three classes. See Fla. Admin. Code R. 68A-

   6.002. Generally, a person cannot possess Class I animals for personal pets unless they came into their possession prior to 1988. Class I animals include 24 different species generally considered extremely dangerous, and include wildlife such as chimpanzees, gorillas, orangutans, baboons, leopards, jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and Komodo dragons. See Fla. Admin. Code R. 68A-6.002(1)(a).

4. Class II animals include 38 different species that may, with a proper license, be possessed as personal pets or for commercial purposes. Class II animals have the potential to cause harm but not to the extent of Class I animals and include wildlife such as Howler monkeys, Patas monkeys, Vervet monkeys, Macaques, bobcats, wolves, wolverines, honey badgers, and alligators. See Fla. Admin Code R. 68A-6.002(1)(b).

5. Class III animals include wildlife not listed as Class I or II. See Fla. Admin. Code R. 68A-6.002(1)(c).

6. The application at issue in this case is Petitioner’s application, ID 75226, to possess, exhibit, or sell Class II wildlife. Petitioner’s application, dated September 9, 2019, identifies Macaques, Patas, Vervet, Grivet, and Green monkeys as species that he does not currently possess, put plans to possess.

7. By letter to Petitioner dated February 5, 2020 (Denial Letter), FWC advised Petitioner that his application was being denied because of prior violations of law and FWC rules regulating wildlife. In particular, the Denial Letter states that on June 19, 2017, FWC investigator Rick Brown found Petitioner in possession of a Vervet monkey without a license. The Denial Letter explains that, on that same date, Petitioner told investigator Brown that Petitioner had sold a lemur, two squirrel monkeys, and an artic fox earlier

   
   

   in that year, but was unable to provide documents for those sales as required by FWC rule. According to the Denial Letter, Petitioner was issued misdemeanor citations for those violations and, on July 21, 2017, Petitioner received adjudication other than acquittal or dismissal for those violations.

8. The Denial Letter also states that, during an investigation of Petitioner at a new location on February 13, 2018, conducted by FWC investigator Steve McDaniel, it was discovered that Petitioner had sold two ring-tail lemurs to an unlicensed individual on December 15, 2017, and that at the time of the sale Petitioner’s license was expired and was not otherwise valid for sales from Petitioner’s new location. The Denial Letter further states that as a result, Petitioner was issued a citation for selling the lemurs without a valid license and a written warning for selling to an unlicensed individual. According to the Denial Letter, on May 22, 2018, Petitioner received adjudication other than acquittal or dismissal for the citation.

9. The Denial Letter concludes:

   Pursuant to Rule 68-1.010 [Florida Administrative Code], and due to facts stated above, your application has been denied. We are processing your application fee for a refund, and you should receive it within 21 days.

   
   

10. During the hearing for this case, the factual basis set forth in the Denial Letter was demonstrated by a preponderance of the evidence provided by the testimony of FWC investigators Brown and McDaniel, the documentary evidence, and Petitioner’s own testimony.

11. Indeed, the evidence showed that during an investigation conducted by investigator Brown on June 19, 2017, Petitioner was found to be in possession of a Class II Vervet monkey without a proper license. Petitioner has never had a Class II license. It was also demonstrated that, at the time of that investigation, Petitioner was unable to produce sales records for a lemur, two squirrel monkeys, and an arctic fox that he had sold earlier that year. While Petitioner provided some documents at the hearing purporting

    
    

    to be records related to those sales, they were insufficient to overcome the preponderance of the evidence in this case. At the hearing, Petitioner admitted that he paid the fine from the citation issued against him for possession of the Vervet and lack of sales records.

12. In addition, it was shown by a preponderance of the evidence that on December 15, 2017, Petitioner sold two ringtail lemurs to an unlicensed individual under a Class III license that was expired and that, prior to its expiration, had only been valid at his previous location, instead of the new location where the sale had taken place.

    
    

    CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57, Florida Statutes.

14. As the applicant for a Class II license, Petitioner bears the burden of proving entitlement by a preponderance of the evidence. See Fla. Dep’t of Child. & Fams. v. Davis Family Day Care Home, 160 So. 3d 854, 856

    (Fla. 2015); Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996).

15. FWC has the burden of proving, by a preponderance of the evidence, that Petitioner violated certain statutes and rules, and is, thus, unfit for a Class II license. See Davis Family Day Care Home, 160 So. 3d at 856.

16. As noted above, FWC proved by a preponderance of the evidence that Petitioner possessed a Class II Vervet monkey without the appropriate licensure, that he failed to maintain records of sales of other wildlife, and sold wildlife under an expired license from a location other than where the license could be used.

17. Under Florida Administrative Code Rule 68A-6.002, Vervet monkeys are Class II wildlife. (Vervet, Grivet, or Green monkeys (genus Chlorocebus)). Petitioner has never had a Class II license.

    
    

18. Petitioner was also in violation of rule 68A-6.0023(7) when he was unable to produce sale records for a lemur, two squirrel monkeys, and an arctic fox.

19. Accordingly, it is appropriate to deny Petitioner’s application for a Class II license to possess Class II wildlife for exhibition or public sale. See Fla. Admin. Code R. 68-1.010(1)(e)(authorizing FWC to “deny applications for any license, permit or other authorization” based on a “[f]ailure by the applicant at any time to comply with chapters 369, 379 or 828, F.S., or the rules of the Commission . . .”).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order denying Petitioner Gregory Nelson’s application for a license to possess Class II wildlife for exhibition or public sale.

DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 28th day of August, 2020.

COPIES FURNISHED:

Gregory Nelson

23033 Brouwerton Road

Howey-in-the-Hills, Florida 34737

Rhonda E. Parnell, Esquire

Florida Fish and Wildlife Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600 (eServed)

Eric Sutton, Executive Director

Florida Fish and Wildlife Conservation Commission Farris Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)

Emily Norton, 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: 20-001715

Orders for Case No: 20-001715