The Issue Whether Petitioner’s application for a license to possess Class II Wildlife for exhibition or public sale should be approved.
Findings Of Fact 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. 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. 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). 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). Class III animals include wildlife not listed as Class I or II. See Fla. Admin. Code R. 68A-6.002(1)(c). 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. 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. 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. 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. 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. 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. 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.
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)
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as amended, by committing unlawful employment practices against Petitioner.
Findings Of Fact Petitioner is an African-American male who was born on April 25, 1943. He received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a Doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to his job applications, Petitioner worked for the U.S. Department of Commerce, National Marine Fisheries Service, from June 1965 until April 1994. He worked in various positions, including "survey statistician," "operations research analyst," "fishery research biologist as chief of turtle headstart," "fishery technician/biologist," and "Equal Employment Opportunity Counselor." From July 28, 1995, until July 6, 1998, Petitioner was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner is currently employed at Daytona Beach Community College in an unknown position. Petitioner filed his Charge of Discrimination with FCHR on September 2, 1997, indicating that the most recent or continuing act of alleged race, age, or sex discrimination occurred on August 11, 1997. Alleged acts of discrimination that occurred more than 365 days prior to the filing of the Charge of Discrimination cannot be considered here. See Section 760.11(1), Florida Statutes. Petitioner received letters from Respondent prior to September 2, 1996, informing him that he would not be hired for the following positions: (a) position No. 543 (Job Opportunity Announcement (JOA) #005-6) position filled by Laura Richards with hire date effective March 1, 1996, Petitioner's rejection letter dated April 5, 1996; (b) position Nos. 213 and 956, positions filled by Robert Guerra and Jacklyn Gilmore, respectively, both with effective hire dates of March 29, 1996, Petitioner's rejection letter dated April 3, 1996; and (c) position No. 1099, position filled by Lorraine Heisler with hire date effective May 10, 1996, Petitioner's rejection letter dated April 8, 1996. Therefore, employment decisions regarding these positions are not at issue here. Petitioner applied for and was rejected for the following position numbers after he filed his Charge of Discrimination with FCHR: (a) position Nos. 1161 and 1162, positions filled, Petitioner's rejection letter dated February 16, 1999; (b) position No. 1160, position filled, Petitioner's rejection letter dated March 15, 1999; (c) position No. 918, position filled, Petitioner's rejection letter dated June 4, 1998; (d) position No. 966, position filled, Petitioner's rejection letter dated August 27, 1998; and (e) position No. 859, Petitioner's application faxed to Respondent on June 29, 1998, Petitioner's rejection letter not in record. There is no evidence that FCHR's investigation of Petitioner's Charge of Discrimination and the resulting Determination of No Cause included the employment decisions associated with these positions. Therefore, they are not at issue here. There is no evidence that Petitioner ever applied for position No. 671. Accordingly, that position number is not at issue here. The employment positions at issue here are as follows: (a) position No. 543 (JOA #047-7, Issue Date July 16, 1997), no evidence regarding employment decision, no rejection letter in record; (b) position No. 1071, position filled by Dwight Myers with effective hire date of July 11, 1997, Petitioner's rejection letter dated June 30, 1997; (c) position No. 869, position filled by Forrest Marchinton with effective hire date of March 3, 1997, Petitioner's rejection letter dated February 13, 1997; (d) position No. 2503, position filled by Gil McRae with hire date of March 24, 1997, Petitioner's rejection letter not dated; and (e) position No. 878, Petitioner submitted a resume but no application for this position; Petitioner's alleged rejection letter dated August 11, 1997, is not in record. When Respondent desires to fill a vacant position, it requests the Department of Management Services (DMS) to publish a Vacancy Announcement, which provides a short summary of information regarding that position. The Vacancy Announcement contains the "bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and Respondent's contact person. When Respondent desires to fill a vacant position, it publishes a JOA, listing, among other things, the minimum qualifications and a description of job duties for the position. The JOA instructs applicants to submit a separate application for each position sought and to include the appropriate class title and position number. The JOA directs applicants to submit a completed State of Florida Application form to a named contact person. The State of Florida Employment Application directs applicants to "[l]ist the knowledge, skills, and abilities that [the applicant] will bring to the job." The application advises applicants to refer to the JOA or listed contact person to determine those specific requirements. For each established career service position, DMS and the applicable state agency create a Career Service Position Description (CSPD), which lists in great detail the job's duties and responsibilities. DMS and the agency maintain copies of the CSPD. When Respondent intends to fill a vacant position, it develops a Selection Criteria Form. This form sets forth the essential and preferred selection criteria based on the required knowledge, abilities, and skills for the position. Respondent uses the Selection Criteria Form to screen job applications, rank the applicants, and determine which applicants Respondent will interview. At hearing, Respondent's staff testified that it is required to interview the selected applicant. This testimony does not mean that Respondent may select an applicant before interviewing him or her. Likewise, this testimony does not mean that Respondent must select an interviewed applicant. Respondent may interview one or more applicants. After Respondent completes the interview process, it may select one of the interviewed applicants to fill the vacant position. Pursuant to DMS rules, Respondent cannot select an applicant that has not been interviewed. After Respondent selects the applicant most qualified for the vacant position, it prepares a Recruitment Report. This report identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the Respondent's reasons for determining that non-selected candidates are less qualified in comparison to the selection criteria. Position No. 543 Respondent initially advertised position No. 543, Biological Administrator I, in JOA #005-6. Petitioner applied for the position, but Laura Richards, a former FMRI employee, was better qualified for the job. Ms. Richards' effective hire date was March 1, 1996. Petitioner subsequently received Respondent's April 5, 1996, letter advising him that he was not selected for the position. All of this occurred more than 365 days prior to the date that Petitioner filed his Charge of Discrimination and is not at issue here. Ms. Richards vacated position No. 543 sometime after Respondent offered her the position. In the meantime, Petitioner had a conversation with Toby Harris, Respondent's Chief of Personnel in 1997. The conversation focused on the selection process for Respondent's established positions. In the conversation, Petitioner expressed his concern regarding his failure to be interviewed for positions when he had a Doctorate in a biological science area and selected candidates only had a Master of Science (M.S.) degree. Mr. Harris did not tell Petitioner that Respondent was targeting candidates with M.S. degrees. Instead, Mr. Harris indicated that he would ask Respondent's Division of Wildlife to interview Petitioner to determine whether he had relevant background qualifications not reflected on an application. Mr. Harris also agreed to add Petitioner's name to the mailing list for JOAs. In a letter dated August 8, 1997, James R. Schuette, one of Respondent's regional wildlife biologists, sent Petitioner two JOAs. One of the JOAs was for position No. 671, for which Petitioner never applied. The other JOA (#047-7, issued July 16, 1997) was for position No. 543. Petitioner applied for position No. 543 (JOA #047-7). Respondent offered to interview Petitioner and set up a date and time for the interview. However, Petitioner was unable to attend the interview because of transportation problems. Petitioner eventually advised Respondent that he was withdrawing his application for position No. 543. Consequently, there is no letter advising Petitioner that he was not selected for position No. 543. Moreover, the record contains no evidence as to whether Respondent ever filled position No. 543 or continued to seek applicants for that position. There is insufficient evidence on which to base a finding that Respondent discriminated against Petitioner in making an employment decision relative to position No. 543. Position No. 1071 Petitioner applied for position No. 1071, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 1071 are set forth as follows in the JOA: Develops and implements management plans for Lake Placid Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 1071. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. Wildlife is defined as land-based mammals and birds. Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes. When hiring for the position of Biological Scientist III, Respondent focuses on an applicant's knowledge, skills, and abilities in performing wildlife population surveys and inventories, working hunter check stations, collecting biological samples from wildlife and upland mammals and game birds, and interacting with the public in exchanging information pertinent to wildlife. Respondent looks for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 1071, states as follows in relevant part: Area Responsibilities: Duties and responsibilities include the direct involvement in the development and implementation of management programs for the KICCO Wildlife Management Area. . . . Management Planning: Duties and responsibilities include coordination of the development and periodic revision of long-range, comprehensive management plans for the KICCO Wildlife Management Area. . . . Program Development: Duties include supervision, coordination and direct involvement in projects to accomplish management of wildlife, timber, range and water resources. The job includes the following responsibilities: Collection of biological data to evaluate wildlife population numbers and fluctuation and land responses to habitat management. Accomplishment of work in Commission-planned activities such as controlled burning, roller chopping, wildlife food-plot planting, public hunt management, etc. . . . Providing wildlife related recreational opportunities including consumptive and nonconsumptive [sic] uses where appropriate. . . . Supervision of one Biological Scientist II and occasional assistance with program development on the Arbuckle and IMC Wildlife Management Areas. * * * Technical Assistance: Duties and responsibilities include providing technical guidance to private citizens or other governmental agencies in wildlife or associated land management programs. Information - Education: Duties and responsibilities include developing programs to disseminate information on wildlife management, environmental awareness, and related subjects. . . . Endanger [sic] and Exotic Species: Duties and responsibilities include identification and protection of endangered species and habitats. Documents and recommends eradication programs for exotic plant species that endanger native habitat. Petitioner was not interviewed for position No. 1071. His application did not indicate that he had the required training and experience in wildlife management. There were 41 applicants for position No. 1071, including 26 males and 15 females. Seven of the applicants were known to be minorities, including two black males. Respondent interviewed four males and one female. One of the interviewed males was known to be of Asian or Pacific Island descent. The individual that Respondent selected for position No. 1071 was Dwight Myers, a white male, age unknown. Mr. Myers' effective hire date was July 11, 1997. Mr. Myers' education and experience exceeded the minimum qualifications for the job. Mr. Myers was more qualified for the position than Petitioner because of his training and experience in wildlife management. Petitioner received a non-selection letter dated June 30, 1997, for position No. 1071. Petitioner was not hired because he lacked the preferred experience and education in wildlife management. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 1071. Position No. 869 Petitioner applied for position No. 869, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 869 are set forth as follows in the JOA: Develops and implements management plans for the Osceola Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 869. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. As stated above, Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes, and not with land-based mammals and birds. When hiring for position No. 869, Petitioner focused on the same knowledge, skills, and abilities as when hiring for position No. 1071. Respondent was looking for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 869 states as follows in relevant part: WILDLIFE MANAGEMENT AREA RESPONSIBILITIES PUBLIC HUNTING AND RECREATION Plan, implements and directs activities required for managing all public hunts on the Osceola, Bienville-PC Phosphate, Lake Butler an Cypress Creek WMAs. Hires, trains and supervises eight to ten seasonal employees; moves check stations to operational locations; collects biological data at check stations; disseminates information about wildlife to the public . . POPULATION MONITORING, MANAGEMENT AND BIOLOGICAL SAMPLING Database Management - Maintains detailed databases and up-to-date summary tables of all species monitored and all wildlife management activities on areas. Conducts sophisticated data analyses and develops Annual Management Reports. Wildlife Population Monitoring - Develops, administers and conducts surveys for monitoring and documenting population levels and status of selected game, migratory, threatened and endangered, and selected nongame [sic] species. Conducts annual population surveys for white-tailed deer, bobwhite quail and bobcats. Wildlife Population Management - Uses results of the population monitoring and analyses to develop options and recommendations to manage the population of species monitored. Actions could take the form of either regulatory or habitat management. Biological Sampling - Plans, directs and participates in the collection of biological samples for both live and hunter-harvested animals. Analyses those samples and provides reports summarizing the findings and conclusions. Specialized knowledge of collection procedures is required. Research - Coordinates wildlife research projects that may be conducted on the areas. This includes the live capture of wild animals and collection and maintenance of accurate records. . . . Analyzes large data bases to determine correlations and relationships with environmental factors and management actions. FACILITIES Maintenance and Habitat Management * * * Technical Assistance - Provides technical assistance to the US Forest Service regarding wildlife management including written comments on actions that will affect the quality of the habitat. Habitat Manipulation and Enhancement - Assists the US Forest Service with their habitat manipulation projects on Osceola WMA when time permits. Petitioner was not interviewed for position No. 869. His application did not indicate that he had any wildlife training or experience. There were 99 applicants for position No. 869, including 77 males and 22 females. Fourteen of the applicants were known to be minorities, including three black males and one black female. Respondent interviewed one white male and one male of Indian descent. The individual that Respondent selected for position No. 869 was Forrest Marchinton, a white male, age unknown. Mr. Marchinton's effective hire date was March 3, 1997. There is no specific evidence regarding Mr. Marchinton's education and experience for the job. However, there is evidence that all persons selected for wildlife biologist positions had education and experience in wildlife/environmental science. Petitioner received a non-selection letter dated February 13, 1997, for position No. 869. Petitioner lacked the preferred experience and education in wildlife management or ecology for the job. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 869. Position No. 878 Petitioner did not file a completed application for position No. 878, Biological Scientist IV. He only filed a resume. The application deadline for JOA #029-7 was July 7, 1997. Petitioner testified that he received a non-selection letter from Respondent on August 11, 1997. That letter is not in evidence. The JOA for position No. 878 states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and three years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and two year's of professional biological experience as described above; or a doctorate in one of the biological sciences. Prefer: Experience in geographic information systems, especially ARC/INFO, ARC VIEW, ERDAS IMAGE, and UNIX. The duties for position No. 878 are set forth as follows in the JOA: Obtains information, such as known occurrences of rare species of fish and wildlife, and ancillary data such as political boundaries, public land boundaries, soils, land cover, roads, hydrology, land use, etc., from outside sources and import/convert the data for use in the GFC geographic information system (GIS). Reviews scientific literature to obtain information on species requirements. Serves as the systems administrator for the GIS networked computer system. Provides technical assistance to Commission biologists, other agencies, and the public in the form of digital data and/or hard copy maps of GIS data layers. The CSPD for position No. 878 states as follows: This is a professional position responsible for investigating and analyzing fish and wildlife population dynamics and ecology as they relate to existing and proposed restoration and management activities in the Lake Okeechobee-Everglades-Florida Bay system. Serves on interagency committees, as assigned, to ensure that fish and wildlife issues are adequately addressed during restoration and management efforts. Independently seeks out background information and makes contacts with experts in various related fields in order to address these issues competently. Conducts field inspections, as necessary, to document habitat condition and existing fish and wildlife resources. Drafts agency comments and policy for supervisory review. Keeps supervisor up to date on progress of projects and committees. Analyzes effects of past, current, and proposed restoration and management programs on the population dynamics and ecology of freshwater fish and wildlife species. Conducts field inspections to document habitat conditions and existing fish and wildlife resources of affected communities. Designs and conducts limited scientific monitoring and research projects on aspects of Everglades habitat restoration and management alternatives, and the response of fish and wildlife communities to habitat management actions. Prepares project reports and manuscripts for scientific publication and public presentation. Reviews development proposals that would affect the restoration of the Everglades system. This includes conducting field inspections to document habitat conditions and existing fish and wildlife resources of affected communities, and drafting agency comments and policy for supervisory review. Petitioner possessed the minimum qualifications for position No. 878, as set forth in the JOA. However, there is no persuasive evidence that Petitioner had the required experience in geographic information systems to perform the job. Likewise, Petitioner clearly did not have the training and experience to fulfill the specific responsibilities and duties of the job as set forth in the CSPD as they relate to freshwater fish and wildlife. Petitioner presented no evidence as whether Respondent ever filled position No. 878 or continued to seek applications for the job after sending Petitioner a rejection letter. Even if Respondent made such a selection, Petitioner presented no evidence as the race, age, or gender of the selected individual. There is no evidence that Respondent discriminated against Petitioner in making an employment decision in regards to position No. 878. Position No. 2503 Position No. 2503, Research Scientist, was advertised by DEP for FMRI in JOA #97-102 on January 6, 1997 with an application deadline of January 30, 1997. The JOA states as follows in relevant part: MINIMUM QUALIFICATIONS: A bachelor's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and five years of professional experience in one of the physical or natural sciences or mathematics; or a master's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and four years of professional experience as described above; or a doctorate from an accredited college or university with a major course of study in one of the physical or natural sciences or natural sciences or mathematics and two years of professional experience as described above. SPECIAL REQUIREMENTS: Prefer working knowledge of age-structured fisheries models, familiarity with SAS, dexterity with PCs, and knowledge of life history and ecology of marine fish species. * * * BRIEF DESCRIPTION OF JOB DUTIES: Develop single and multi-species assessments of Florida's East Coast fisheries integrating research on life history, fishery monitoring, ecological and habit surveys and human behavior. Develop mathematical techniques to accomplish the above duties. Prepares reports and manuscripts for resource managers. Participates in preparation of management plans. REQUIRED ENTRY-LEVEL KNOWLEDGE, SKILL(S), & ABILITIES: Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to: process and analyze data; produce technical reports and manuscripts; develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. The CSPD for position No. 2503 states as follows: Independently integrate data from directed research studies on the life history or population dynamics of marine fishes, fishery monitoring programs, ecological and habitat surveys and human behavior into single and multi-species assessments of Florida's East Coast fisheries issues. Monitor the status of selected marine fisheries and analyze how well Florida's management goals are being met. Independently design and test new mathematical techniques to accomplish the above duties. Keep current on relevant literature. Attend courses and workshops pertaining to mathematical analyses of fisheries data. Assist with the coordination and implementation of all fisheries research and monitoring programs. Assist with the design and testing of sampling techniques for fisheries programs. Prepare reports and peer-reviewed manuscripts on findings from the above analyses. Prepare stock assessments and special reports for Florida's marine resource managers. Review and evaluate reports, in the preparation of management plans for federal fisheries contiguous to Florida. Advise and assist other departmental, governmental, institutional, or private agencies in matters related to the above research. Participate in the public outreach efforts as appropriate. Assist in other Institute activities as requested. Knowledge, Skill(s), and Ability(ies): List any entry level knowledge, skill(s) or ability(ies) relating to this position including utilization of equipment. KSAs identified in this section are considered essential function(s). Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to process and analyze data; produce technical reports and manuscripts; and develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as essential knowledge, abilities, and skills: Knowledge of: population assessment techniques; simulation modeling; and statistics: Ability to: communicate effectively in writing and verbally; process, analyze, produce technical reports and manuscripts; develop presentation from scientific data; plan and coordinate research; and design and test sampling methods. Skill in the use of: a programming language; modeling software; and word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as preferred essential knowledge and skills: Knowledge of: age-structured fisheries models Skill in the use of: personal computers DEP had 51 applicants for this position. The agency interviewed six of the applicants. Five of the interviewed candidates were white. One candidate was of Asian descent. Five of the interviewed candidates were male. One was female. Two of the interviewed candidates were over the age of 40. Four of the candidates were DEP employees. Petitioner applied for this position but did not receive an invitation for an interview. DEP sent him an undated non-selection letter, which states that the position had been offered to an applicant whose overall background most closely fit the knowledge, skills, and abilities required for the position. Petitioner met the minimum qualifications set forth in the JOA for position No. 2503. Persuasive evidence indicates that he did not have the necessary training and experience to perform the specific assessment modeling techniques in order to perform the job. A white male and a white female, who were already employed by FMRI, were not interviewed for the same reason. DEP selected Gil McRae, an FMRI employee, for position No. 2503 with an effective hire date of March 24, 1997. Mr. McRae was a white male under the age of 40. He had a M.S. in Fisheries Statistics and more than enough professional experience to meet the minimum qualifications for the job. He had been an Associate Research Scientist with DEP for fifteen months. Of all the applicants, Mr. McRae had the most knowledge and the best skills and abilities to perform the duties and responsibilities of the position. There is no persuasive evidence that DEP discriminated against Petitioner in making an employment decision relative to position No. 2503. Finally, there is no persuasive evidence that Respondent's staff ever told Petitioner that he would not be considered for a job because he had a doctorate. He was never advised that an interview with Respondent equated to a job offer. Moreover, there is no persuasive evidence that Respondent or DEP changed job classifications or varied conditions of employment to discriminate against Petitioner based on his race, gender, or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 15th day of September, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Preston T. Robertson, Esquire Sharman H. Green, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Did Respondent, Florida Fish and Wildlife Conservation Commission (Commission) correctly deny the application of Petitioner, James Hammonds, to renew his Game Farm License (Case No. 19-6307)? Did the Commission correctly deny Mr. Hammonds' application to renew his License to Possess Class III Wildlife for Exhibition or Public Sale (Case No. 19-6326)?
Findings Of Fact The Parties Article IV, Section 9 of the Florida Constitution creates the Commission. It charges the Commission to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and … exercise regulatory and executive powers of the state with respect to marine life, … ." Chapter 379, Florida Statutes (2019), implements the constitutional provision and did so in 2017. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish, Florida. He breeds and sells exotic animals. Mr. Hammonds holds five separate licenses authorizing him to own, breed, sell, and transport wild life. They are a Class III license5 (with a Capuchin Monkey and Spider Monkey endorsement) that authorizes him to exhibit and sell wildlife, a game farm license, a deer herd management license, a United States Department of Agriculture (USDA) transport license, and a USDA license to trade in wildlife animals. The renewal of his Game Farm License and License for Exhibition and Public Sale of Wildlife are the subject of this matter. The Commission refused to renew both. Mr. Hammonds has held these two licenses since 2012. Since obtaining his licenses, Mr. Hammonds has passed all Commission inspections. In addition, the Commission has issued him a game farm license. The 2012 Conviction In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully selling wildlife to an unpermitted entity. The offense was sale of a marmoset at a flea market to an unlicensed purchaser. The record does not provide a citation to the statute violated. Mr. Hammonds was new to the exotic animal trade. He relied upon statements by the purchaser and a Commission representative that the Commission had issued the purchaser a license and that it was en route. The court adjudicated Mr. Hammonds guilty and ordered him to pay a fine and costs totaling $450.00. It also required Mr. Hammonds to pay an additional $50.00 for costs of prosecution. Mr. Hammonds paid the fine and 5 Section 379.3762(2), Florida Statutes (2019), creates three classifications of wildlife types. Class I is wildlife that because of its nature, habit, or status may not be possessed as a pet. Class II is wildlife presenting a real or potential threat to human safety. Class III is all wildlife not included in Classes I and II. costs. Aware of this conviction, the Commission nonetheless routinely approved Mr. Hammonds' license renewal applications and approved his application for a game farm license over the next six years. There is no evidence of or charge of any other violations by Mr. Hammonds until the charges involved in these cases. The Capuchin Monkey In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina Brown. He verified her identity and Nevada residency by looking at her Nevada driver's license. Nevada does not require a license to own exotic animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wildlife.6 Mr. Hammonds had a few conversations with Ms. Brown and her assistant Manny Ortiz about the sale. On October 12, 2017, Mr. Hammonds completed the required USDA form, "Record of Acquisition, Disposition or Transport of Animals," for the Capuchin sale.7 Mr. Hammonds was advised that Jennifer and Michael Brister would pick up the monkey to transport it to Nevada. The Bristers are located in 6 Lack of proof is the hallmark of this case. The Commission relied solely upon the testimony of one witness. The testimony was almost entirely hearsay or descriptions of document contents. This is despite the Commission, according to its witness, having recordings, sworn statements, telephone records, and financial records to support its allegations. The Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla. Stat. (2019). Document descriptions are subject to memory failings, incompleteness, inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat.; See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980). 7 The form does not have a field calling for the buyer's telephone number, or any telephone number for that matter. This is noted because the Commission's witness and Notices emphasize, as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone number on the form where the buyer's telephone number went. The unsupported testimony and insistence on its significance is one of the reasons that the witness' testimony is given little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address for Ms. Brown. It shows a Nevada address. Tennessee. The Bristers held a USDA Class T Carrier permit issued under the federal Animal Welfare Act. Mr. Hammonds obtained proof that the Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to provide this service. Mr. Hammonds was also aware that the Bristers frequently did business in Florida. Other breeders recommended them highly. The Commission did not prove that the Bristers did not hold a Florida permit to own wildlife. The Bristers picked up the monkey, on behalf of Ms. Brown, from Mr. Hammonds in Florida. Other than to receive a telephone call reporting that the monkey had been delivered, Mr. Hammonds had no further contact with or communications about the monkey or Ms. Brown until the Commission's investigator contacted him. There is no admissible, credible, persuasive evidence about what happened to the monkey from this point forward. The Commission offered only uncorroborated hearsay testimony from Mr. O'Horo on this subject. The Rhesus Macaque Monkey Mr. Hammonds also assists people in rescues of exotic animals whose owners have realized they cannot care for them. In 2017, Mr. Hammonds facilitated the transfer of a Rhesus Macaque monkey from one individual to another. A Macaque monkey is a Class II animal. The monkey owner came to Mr. Hammonds' business seeking assistance because he could not handle the monkey. The monkey was in a pet carrier. Mr. Hammonds recalled a woman in Orlando who had contacted him in the past seeking a Macaque. He put the two individuals in touch with each other. The two individuals agreed to the exchange of the monkey. The woman came the same day, met the Macaque owner, and accepted the monkey from him. The owner kept the monkey with him in the carrier until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange. There is no competent, persuasive evidence that Mr. Hammonds ever had ownership, physical possession, control, or custody of the Macaque monkey in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Fish and Wildlife Conservation Commission, issue a final order renewing the Game Farm License and the License to Possess Class III Wildlife for Exhibition or Public Sale of Petitioner, James Hammonds. DONE AND ENTERED this 23rd day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 23rd day of June, 2020. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) David A. Fernandez, Esquire Florida Trial Counsel 4705 26th Street West, Suite A Bradenton, Florida 34207 (eServed) Sean P. Flynn, Esquire Flynn Law, P.A. 2200 Manatee Avenue West Bradenton, Florida 34025 (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 32399-1600 (eServed)
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on October 29, 2002.
Findings Of Fact Petitioner is an Hispanic woman who was employed by Respondent from December 1997 until her termination on October 2, 2002. She worked in Alachua County Animal Services (Animal Services) as an animal control officer. Animal Services control officers are supervised by the Animal Services field supervisor who reports to the director of Animal Services. Petitioner received a bachelor's degree in 1983 in agriculture with a concentration in animal production and agricultural management courses, has experience in animal nutritional research, and has one published paper in that field.2/ Prior to working for the Alachua County, Petitioner managed a small pest control business. By the time she applied for the supervisory position, she had obtained Florida Animal Control Association (FACA) Level I, euthanasia, and chemical immobilization certifications. An animal control officer is responsible for enforcing state laws and county ordinances regarding small animals. Animal control officers impound animals at-large, issue warnings and citations, handle citizen complaints, and investigate animal bites and cruelty to animals. Petitioner served as interim Animal Services supervisor for a little over one month in June 2000. When the position of Animal Services field supervisor became vacant in December 2001, Petitioner applied for the job. Penny Lefkowitz, a newly hired Animal Services officer, also applied for the job. At that time, Ms. Lefkowitz had seven years of animal control experience in Arizona as lead officer. In that capacity, she was a sworn officer with firearm authority, a field training officer, and handled over 1,000 calls per year in that position. She held National Animal Control Association (NACA) Level I and II certifications. She was euthanasia- certified and had 25 years' experience breeding dogs and horses. Ms. Lefkowitz has a high school diploma. Ms. Lefkowitz was placed in the interim field supervisor position for a period of approximately three months, during which time she received supervisory pay. The record is not clear whether there was a separate application process for the permanent position following the appointment of the interim supervisor position. In any event, Respondent hired Bill Burris as Animal Services supervisor in March 2002. At the time he applied, Mr. Burris had nine years of animal control experience in Arkansas, where he was the animal control officer and shelter assistant. He held a high school G.E.D. Additionally, he held NACA Level I, II, and III certifications. Petitioner's Charge of Discrimination regarding failure to promote only references Ms. Lefkowitz's appointment to the interim director position, "[i]n December 2001, a newly hired officer, white female with less experience was hired as interim supervisor." It does not reference Mr. Burris as being hired in the director position. Her Petition for Relief alleges, "[t]hose less qualified individuals were hired and promoted in violation of county/company policy." Thus, it is not clear that Respondent hiring Mr. Burris for the permanent position is properly within the scope of this case. Nonetheless, the evidence presented at the hearing regarding Mr. Burris' qualifications is addressed herein. Mr. Burris held the position of field operation supervisor from March 2002 until his resignation in September 2003. Based upon the evidence in the record, at the time the decision was made to place Ms. Lefkowitz in the temporary supervisory position, she and Petitioner met the qualifications for the job. Ms. Lefkowitz had significantly more supervisory and field experience than Petitioner. At the time he was placed in the job, Mr. Burris met the qualifications for the job and had significantly more supervisory experience than Petitioner. Petitioner held a college degree, which neither Ms. Lefkowitz or Mr. Burris had. However, according to Mr. Burris, a college degree was not a minimum requirement of the job, but two years' animal control or animal shelter experience were required. There is nothing in the record to contradict his testimony in this regard. When Mr. Burris became field supervisor, he held a staff meeting and told the animal control officers he supervised that he would start fresh as far as performance and discipline issues. He handed them an empty folder and informed them that he would only consider their past performance if he saw a pattern that caused him to look at past personnel records. Mr. Burris called staff meetings to discuss policies that were not up-to-date or in need of updating. Prior to the staff meeting, Mr. Burris sent a memorandum to the animal control officers informing them that there would be a staff meeting. Officers were expected to attend and were excused only if they were on an emergency call. If an officer was absent from a meeting, Mr. Burris would promptly notify them in memorandum format as to what happened at the meeting. When changes were made in policies or procedures, Mr. Burris would put a copy of the policy changes in every officer's box. Each officer had his or her box where they would receive their mail. Each officer was expected to check that box daily. The boxes were accessible to everyone so that when there was a confidential document, such as payroll information, that document was placed in an envelope and then put in the officer's box. Petitioner's mid-year performance review was due in April 2002, approximately six weeks after Mr. Burris became the supervisor. Petitioner received an overall rating of "exceeded expectation." There are five categories of performance ratings, and "exceeded expectation" is the second highest category. That rating was consistent with ratings Petitioner received from previous supervisors. On April 24, 2002, Mr. Burris held a staff meeting to discuss a new policy regarding issuance of warnings and citations. The new policy required officers to give animal owners in violation of vaccination or licensing requirements 15 days to come into compliance. Previous to this, some officers had given animal owners 30 days to come into compliance. Under extenuating circumstances and upon seeing reasonable attempts to achieve compliance, the officer could extend an owner's deadline by 15 more days. Testimony is conflicting as to whether Petitioner attended this meeting. Petitioner insists she was not at this meeting. Mr. Burris insists that she was and that this issue was discussed in great detail. In any event, Mr. Burris put the new policy in writing a few days after the April 24, 2002, meeting, and the new written policy was given to all the officers. The weight of the evidence establishes that even if Petitioner did not attend the April 24, 2002, meeting, she would have been notified of the policy change shortly thereafter. On April 29, 2002, Petitioner issued a warning to a dog owner, which allowed the dog owner 30 days to achieve compliance with licensing and vaccinations for 24 dogs. According to Petitioner, she considered 30 days to be ample time for the owner to come into compliance. Petitioner maintains that at the time she issued this warning, she was not aware of the change in policy from 30 to 15 days. She acknowledges that Mr. Burris later explained the change in policy to her. It is clear that Mr. Burris informed Petitioner of this policy change and directed her to follow these procedures. In June or July 2002, Mr. Burris designed a policy and procedure manual incorporating all policies and procedures. A manual was issued for each truck used by the animal control officers. On July 31, 2002, Mr. Burris issued a memorandum entitled, "Bite Priority," to the animal control officers. Following a staff meeting where this memorandum was given to the officers, an informal discussion took place around the dispatch area. During this informal discussion, Petitioner questioned Mr. Burris as to whether he had ever read a document called the rabies compendium. Mr. Burris described Petitioner as speaking in a disrespectful, challenging tone. Ms. Lefkowitz witnessed the exchange and described it as disrespectful and condescending.3/ This statement made in front of other officers was inappropriate. The "Bite Priority" memorandum reads, in pertinent part, as follows: All Bites will be priority. Stand-by officers will be required to respond if the bite is after hours during their on-call shift. Bites will not be passed on to the next day. Shifts are 10 hour shifts, not 9 1/2 hours, if you end up working over you are compensated. Officers will not pass calls off to the stand-by person. Priority calls will be taken by Officers during their regular shift. The remainder of the memorandum dealt with off-premise bites. In early August 2002, Mr. Burris decided to "work the roads on a Saturday to take up some of the slack" because the animal control officers were overworked. Late one afternoon, Mr. Burris attempted to reach Petitioner on the radio, but was unable to do so. He asked the dispatcher to contact Petitioner. Petitioner acknowledges that she was contacted by the dispatcher and received Mr. Burris' request to fill up the truck she was driving and to leave the keys and the fuel card on Mr. Burris' desk. Petitioner had already filled up the truck that day in the late morning. She did not fill up the truck again at the end of the day, but described the truck as being seven-eighths full at the end of her shift, after making ten to 12 calls after stopping for fuel. Petitioner believed her actions complied with Mr. Burris' instructions. Mr. Burris described finding the truck the next morning as half-full of gas. Mr. Burris concluded that Petitioner did not follow his instructions. Mr. Burris' conclusion in this regard was not unreasonable. The truck incident gave rise to Mr. Burris' first written warning about her conduct. On August 5, 2002, Mr. Burris issued a memorandum to Petitioner for "failure to follow verbal instruction." The memorandum noted a safety concern in that he was not able to reach Petitioner by radio and his concern that she did not follow his directive. On August 6, 2002, Mr. Burris called Petitioner into his office to discuss the written memorandum. Mr. Burris described Petitioner's behavior when he handed her the memorandum to be disrespectful. As a result, Mr. Burris went to the director's office to explain the circumstances surrounding this incident. This resulted in a meeting in the director's office at which the director, Mr. Burris, and Petitioner were present. Petitioner acknowledges that she made the statement, "I guess one out of a hundred is unacceptable" during this meeting, and that she said it using a sarcastic tone. Later on August 6, 2002, Mr. Burris issued Petitioner another in-house written warning, the subject of which was "improper conduct" about her conduct in the director's office, which read in part: I informed Dr. Caligiuri of Blanca's discourtesy and or improper conduct. I had Blanca meet with me in Dr. Caligiuri's office to discuss her comment and the way in which it was stated. During our conversation in Dr. Caligiuri's office Blanca used mild sarcasm, expressing, "I guess one time out of a hundred is unacceptable" as we discussed the importance of responding to her radio. At this time, I do not want to write this up as a group I #19 Discourtesy to another employee or a Group II #7 Improper conduct which would effect the employees relationship with co-workers. However, if this behavior continues I will be left with no alternative. I know Blanca is capable of doing her job in a professional manner. I only want this as a written documentation of what occurred on this day, to prevent future occurrences of this same behavior. Petitioner refused to sign the August 6, 2002, memorandum. On August 13, 2002, Animal Services received a call about a dog bite at a residence. Animal control officer Jay Butts was dispatched on the call. When he arrived, he saw two or three dogs inside the home, and he could not determine which dog was involved in the reported bite. The owner of the dog was not at home. He left without leaving a written warning because, "I did not have the correct owner or dog, so I didn't know which dog or which owner to leave a written warning to. . . So I wanted to come back and find out which dog actually was involved in the bite." The following morning, Mr. Butts received information from the Health Department regarding the dog's owner and learned that the dog was not currently vaccinated or licensed. Mr. Butts returned to the residence where the bite occurred. He posted a notice to the dog's owner. Apparently the owner was still not home because he posted a warning which included the following necessary corrective action: "Your dog must be placed into quarantine by 5:00 pm on 8-14-02 at our shelter or a licensed vet. If you do not have this done today your animal will be impounded and you will receive a citation of $200.00 per day." The warning required the owner to correct the violation by 5:00 p.m. that day. Officer Butts proceeded to handle other calls until his shift was over. He did not make contact with the dog's owner before his shift ended. His shift ended before 5:00 p.m. The dog's owner called Animal Services after 5:00 p.m. on August 14, 2002. Petitioner took the call. After speaking to the dog's owner, she called a veterinarian and learned that the dog's vaccination had expired by a few months. She did not pick up the dog. She gave the following reason: Yeah, it happened on property. The dog was confined to his property. We had contacted the owner. And basically even though the vaccination had expired, even a one-year vaccination is good for three years. This is a known fact of any vaccine, any rabies vaccine manufactured in the United States, a one-year vaccine has an efficacy of three years. So I take all that matter into consideration when I have to make a decision as to what to do with a bite dog. Petitioner told the dog's owner that he had to comply with the written warning given by Mr. Butts. According to Petitioner, she told the dog's owner that he had to quarantine the dog off the property either at the shelter or at a veterinarian clinic. She also informed him that the only person who could reverse that decision was her supervisor. The next morning, August 15, 2002, the dog's owner called Mr. Burris. Mr. Burris spoke to the dog's owner and then questioned Petitioner to get her side of the story. He then instructed Petitioner to pick up the dog. She did not pick up the dog as instructed; another officer picked up the dog later that day. Mr. Burris gave a verbal warning to Officer Butts regarding his handling of the dog-bite incident. Mr. Butts had received previous disciplinary actions, including suspensions, prior to Mr. Burris becoming the field supervisor. However, on August 20, 2002, Mr. Burris initiated a Notice of Proposed Disciplinary Action (Notice) to Petitioner in which he recommended a three-day suspension without pay. The reasons referenced in the Notice were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employees, or the public; and refusal to perform assigned duties or to comply with written or verbal instructions of a higher level supervisor. The narrative of the Notice referenced the dog-bite incident and the August 6, 2002, improper conduct memorandum. Mr. Burris explained his decision to give different disciplinary actions to Officer Butts and Petitioner: Q What should she have done with the dog? A She should have impounded it immediately. If the owner refused her, she should have issued him a citation for failure to comply. Q Jay Butts participated in this. We had some testimony about that. Jay Butts participated in this event two days prior and one day prior to Ms. Carbia getting involved. Why wasn't Butts given any suspension on the same matter? A Jay Butts was given the same verbal consultation that Officer Carbia had received. The only thing Jay Butts could have done differently would have perhaps left a posted notice the day of or given a notice to the roommate with generic information. Jay Butts received consultation pertaining to that. He did not receive disciplinary action because he never made any contact with the owner. The officer that made contact with the owner and had the first opportunity to take the dog was Officer Carbia. Q So there is a difference in the seriousness of her offense and Jay Butts' offense? A Absolutely. Q Hers was more serious? A Yes. As a result of the Notice, a grievance hearing took place on August 26, 2002, in the director's office. Wayne Mangum, who at that time was the union steward, Mr. Burris, and Petitioner were there, as well as the director, Dr. Caligiuri. During the meeting, Petitioner explained her position. At some point in the meeting, Dr. Caligiuri made a comment to the effect that 80 years ago women could not vote.4/ Petitioner found that comment to be discriminatory toward women. When asked whether Dr. Caligiuri's demeanor in that meeting was aggressive or not cordial, Mr. Mangum replied that his demeanor was "uncordial." In any event, Dr. Caligiuri's comment was offensive and inappropriate. During the August 26, 2002, meeting, Mr. Burris instructed Petitioner to discontinue striking the word "within" from the form used when giving an animal owner a time frame within which to bring in an animal to be impounded. She had not been instructed regarding that previously. Mr. Burris received a copy of a warning form dated August 28, 2002, on which Petitioner had crossed out the word "within" contrary to his instructions. He took no action at the time since he thought it might have been a "slip of the pen." He then received another warning form dated September 9, 2002, regarding a dog bite which Petitioner had again altered by crossing out the word "within." Petitioner had written on the form that the warning had been posted. Posting is a procedure officers follow when the animal owner cannot be found. The notice is posted on the door of the residence for the owner to find upon returning home. Based upon his telephone call to the dog's owner and the information on the form, Mr. Burris was of the belief that the form had not been posted, and that Petitioner's indication on the form that it had been posted was inaccurate. Mr. Burris met with Petitioner regarding this incident. Petitioner acknowledged at hearing that she spoke to the dog's owner, but was intimidated and confused when questioned by Mr. Burris about whether or not she had spoken to the owner. Petitioner contends that she did not lie to Mr. Burris, that initially the owner did not come to the door but later did come to the door. According to Petitioner, she simply neglected to cross out the word "posted" or ask the owner to sign the form. On September 18, 2002, Mr. Burris signed and provided a Notice of Proposed Disciplinary Action to Petitioner which proposed her termination from employment. The stated reasons for the proposed action were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employee, or the public; deliberate falsification and or destruction of county records; and refusal to perform assigned duties or to comply with written or verbal instruction of a higher level supervisor. The Notice referenced the August 28, 2002, warning notice with the word "within" crossed out; the September 10, 2002, warning notice with the word "within" crossed out; the written word "posted" on a warning when she had personally spoken to the dog's owner; and the meeting on August 26, 2002, which resulted in her three-day suspension. The Notice concluded: This is the same type of circumstance concerning the same written instruction after meeting with Blanca and her union rep. This time Blanca was untruthful in her statements, even after I gave her three opportunities to tell me that she had personally spoken to the dog owner. By writing "posted" on the notice which indicates the owner was not home, she falsified a county document. Blanca hand delivered the notice to the dog owner and did not impound the dog when she had the opportunity. Petitioner was terminated from her employment with Respondent effective October 2, 2002. There is no evidence in the record that Petitioner complained to anyone that she felt she was discriminated against on the basis of her gender or national origin. The only evidence presented regarding her national origin was Petitioner's brief testimony: Q Were there any other Hispanics employed at animal services during the time frame that Mr. Burris was there? A No. Do you feel that your national origin had something to do with the way Mr. Burris treated you? A Certainly just—basically I felt that I was treated differently, yeah.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 27th day of July, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2004.
The Issue The issue to determine in this matter is whether Petitioner James Jablon’s applications for a Personal Pet No Cost Permit (PPNC) and Class III Exhibition and/or Sale License (ESC) should be denied for the reason stated in Respondent Florida Fish and Wildlife Conservation Commission’s (FWC) Notice of Denial, dated May 24, 2019.
Findings Of Fact Mr. Jablon testified that he previously owned a male lion named Ed, and possessed the appropriate Class I Wildlife License. Ed then went to live at another wildlife facility near Gainesville. Mr. Jablon testified that in July 2015, Judith Watson, who owned a wildlife sanctuary near Spring Hill, Florida, contacted him and asked him to live in a guest house at her wildlife sanctuary and inquired whether he could relocate Ed to her wildlife sanctuary. Mr. Jablon stated that Ms. Watson had a female lion named Savannah, and it was his opinion that lions should live in a “group system” and not alone. Mr. Jablon testified that he then took steps to reacquire Ed from the Gainesville facility. On October 19, 2015, Mr. Jablon applied for a Class I and/or Class II Wildlife for Exhibition or Public Sale (ESA), in the name of Wildlife Rehabilitation of Hernando, in which he sought a license to possess, inter alia, a lion. The State of Florida classifies lions (panthera leo) as Class I wildlife. See Fla. Admin. Code R. 68A-6.002(1)(a)12. Among the numerous requirements for an ESA are requirements for the facilities for the housing of Class I wildlife, “[i]n order to assure public safety.” Fla. Admin. Code 68A-6.003(2). For example, Florida Administrative Code Rule 68A-6.003(2)(c)1. requires: Property ownership/lease: The facility shall be constructed on property owned or leased by the applicant. If leased[,] the lease shall be for a term of not less than one (1) year from date of application. Such lease shall be subject to initial and annual review and approval by the commission as a condition of said lease. If the property is leased, the lessee must have exclusive rights to occupy, possess and use the property with no restrictions that could prevent the lessee from adhering to the eligibility requirements for licensure with no other in holdings or easements. The existence of any such lease restrictions or termination of the lease shall result in the denial or revocation of the license or permit. As part of his ESA application materials, Mr. Jablon provided a “Residential Lease Agreement,” dated July 31, 2015, between Ms. Watson and “James Jablon/WROH,” that generally stated that Ms. Watson agreed to rent to Mr. Jablon (and Wildlife Rehabilitation of Hernando) real property in Spring Hill, Florida, for a term of almost three months. The Residential Lease Agreement contains the signatures of Mr. Jablon, and purportedly, Ms. Watson. Thereafter, Mr. Jablon submitted to FWC a “License renewal correction update,” dated November 16, 2015, in which he provided a “correction” to the lease term to show that it was for three years, and not almost three months. This “correction” contains the initials of Mr. Jablon, and purportedly, Ms. Watson. At the final hearing, Mr. Jablon admitted that the signatures of Ms. Watson on the Residential Lease Agreement and the initials on the “License renewal correction update” were not those of Ms. Watson, but his. Mr. Jablon testified that he signed Ms. Watson’s signature and initials to these documents with Ms. Watson’s permission. Mr. Jablon further testified: We weren’t really concerned about the legality of the lease, because neither one of us had any intention of enforcing the lease. I wasn’t technically a tenant there leasing the property. I was over there to help her run that facility and work with her. So if you look at the lease, there’s really nothing—it’s basically the way it came in the package. . . . So, I mean, we didn’t—we didn’t care about the lease. Ms. Watson testified that she never asked Mr. Jablon to create a lease for the Spring Hill property, never gave him permission to sign her name on a lease, and never gave him permission to sign a “License renewal correction update.” Ms. Watson, who testified that she was familiar with the requirements for an ESA for Class I wildlife, also testified, consistently with Mr. Jablon, that the two had discussed moving Ed to her property to live with Savannah. The undersigned does not find Ms. Watson’s testimony credible concerning the creation of a lease for the Spring Hill property. As an owner of a lion, who testified that she was familiar with the requirements for an ESA for Class I wildlife, Ms. Watson knew of rule 68A-6.003(2)(c)1.’s requirement that an ESA permittee must own or lease the property upon which the wildlife would reside. By asking Mr. Jablon to move Ed to her property to live with Savannah, the undersigned finds that Ms. Watson would have known of this requirement that Mr. Jablon either own or lease the property where Ed would live. As Mr. Jablon did not own Ms. Watson’s Spring Hill property, the undersigned finds that Ms. Watson would have known that Mr. Jablon would need to lease the Spring Hill property to legally possess an ESA and locate Ed on the Spring Hill property. However, the undersigned also finds, based on his own testimony, that Mr. Jablon falsified Ms. Watson’s signature on the lease, as well as her initials on the “License renewal correction update,” which he submitted to FWC as part of his ESA application. His explanation for doing so--that neither he nor Ms. Watson intended to enforce the lease and renewal documents-- further indicates to the undersigned that Mr. Jablon intended to submit materially false documents to FWC in the ESA application process. On February 19, 2019, FWC received Mr. Jablon’s application for a PPNC and ESC. In its May 24, 2019, Notice of Denial, FWC stated: On May 12, 2016, Ms. Watson provided a sworn statement to Investigator Chad Paul stating that the lease [submitted with the October 19, 2015, application for ESA] was a falsification. In comparing signatures from Ms. Watson over the years to the lease you submitted, FWC confirmed the signature did not belong to Ms. Watson. The Notice of Denial further states, “[b]ased on your prior submission of materially false information, your applications [for a PPNC and ESC] have been denied.” The undersigned finds that competent, substantial evidence supports FWC’s determination that Mr. Jablon submitted materially false information when he applied for an ESA in 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Fish and Wildlife Conservation Commission issue a final order denying Mr. Jablon’s PPNC and ESC applications. DONE AND ENTERED this 27th day of September, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 27th day of September, 2019. COPIES FURNISHED: James Jablon 15297 Highfield Road Brooksville, Florida 34604 Joseph Yauger Whealdon, 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) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Respondent's letter of denial of registration to Petitioner be rescinded and that Petitioner's application for registration be GRANTED. DONE AND ENTERED this 13th day of July 1978 in Tallahassee, Florida. COPIES FURNISHED: Secretary William J. Page, Jr. Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jack T. Edmund Post Office Box 226 Bartow, Florida 33830 Anthony N. DeLuccia, Jr. District VIII Counsel Department of Health and Rehabilitative Services Post office Box 2258 Ft. Myers, Florida 33902 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether Respondent, Walt Disney Parks and Resorts US, Inc. (Disney), a place of public accommodation, violated section 760.08, Florida Statutes, by denying Petitioner, a handicapped individual, access to its property because his service animal was unleashed.
Findings Of Fact Background Disney is a public accommodation whose principal business activity consists of the ownership, operation, and management of theme entertainment parks, resorts, and related facilities located in the Orlando area. The theme parks include Magic Kingdom Park, Epcot, Animal Kingdom Park, and Hollywood Studios. Petitioner is a 50-year-old male who resides in Winter Garden. In 2004, while living in Illinois, Petitioner was severely injured when a large truck rear-ended his motor vehicle. In 2007, he was declared permanently disabled due to leg and spinal injuries suffered in the accident. As a result of these injuries, he walks only short distances with the aid of a walking device or cane. For longer distances, he normally uses a motorized scooter. Petitioner moved to Florida around 2012 to escape the cold weather in Illinois. He testified that he and his family have always enjoyed visiting Disney theme parks and other non- Disney tourist attractions in the area, and this was one of the primary reasons he moved to the Orlando area. Until this dispute arose, he was a Disney Annual Passholder, which allowed him multiple admissions to the theme parks at a discounted rate. Although Petitioner says he used the pass to access the theme parks on numerous occasions, other than those at issue in this case, there is no credible evidence that he was allowed to enter the parks with an unleashed service animal on any occasion. The Service Animal In early 2013, Petitioner decided to acquire a service animal to assist him while ambulating inside and outside his home. He purchased Lily, an eight-week-old, female Dogo Argentino, which is a large, white muscular dog developed in Argentina primarily for the purpose of big-game hunting. A strong, powerful dog with a large bite, it is one of the deadliest breeds in the world and is banned in some European countries. Lily resembles a pit bull in appearance and weighs almost 100 pounds. In contrast, a mature male Dogo Argentino weighs around 150 pounds, but does not look like a pit bull. Petitioner testified that he wanted his service animal to look like a pit bull, so he chose a female even though a male is easier to train. Although purchased in early 2013, Lily did not begin service training until April 2014, or one month before Petitioner's first claim of discrimination at the Epcot theme park. Petitioner selected Southland Dog Training (Southland) as Lily's trainer. Lily was the first Dogo Argentino Southland had trained to be a service animal. Not surprisingly, Southland has an indemnity provision in its training agreements to protect itself from liability in the event a dog that has gone through the training program ends up harming someone. And even though Lily was given training on interacting safely with children in a crowded setting, and never exhibited aggression during its training sessions, Southland does not guarantee the dog will not harm someone. In fact, Southland's owner admitted that "[a]ny and every dog has the propensity to be aggressive, it's in their genes[,]" and "[a]ny breed of dog can be aggressive." A dog's propensity to be aggressive was also confirmed by Disney's canine expert, Bob Gailey, a professional police dog and civilian dog trainer who has trained between 20,000 and 30,000 dogs over a 65-year career, including Dogo Argentinos, and conducts seminars on dog training and safety issues. He explained that no amount of training can guarantee that a dog will not bite someone with or without provocation. For obvious safety reasons, he emphasized that service animals must be kept on a leash while in crowded public areas, such as a Disney theme park. Mr. Gailey noted that "freakish incidents" can and do occur, and that even trained dogs, such as Lily, need to be on a leash to protect the safety of others. In fact, Mr. Gailey pointed out that he has been bitten around 100 times by trained dogs, without any provocation, including some whose owners say they have never bitten anyone. He added that due to a Dogo's large bite, it could "definitely" kill a child. Thus, Disney has a real and legitimate safety concern, and not one based on mere speculation, that allowing unleashed service animals on its property poses a potential safety threat to other guests, especially children. To address this concern, Disney has adopted a policy for service animals, described below. Lily has been trained to perform the following tasks: open doors; push handicap buttons; retrieve items; and pull Petitioner out of a body of water. However, Petitioner can perform some of these tasks on his own, such as pushing handicap buttons and picking up items. Petitioner contends that forcing him to keep Lily on a leash or harness at all times could result in the leash becoming tangled in the scooter's wheels. However, Mr. Gailey established that besides being trained to perform all functions on a leash, service animals can be taught how to avoid getting their leashes tangled up with the wheels. Being leashed or tethered will not interfere with Lily performing her assigned tasks. Petitioner's Limitations Petitioner has had multiple surgeries related to his accident, the last one on his left shoulder on February 2, 2010. At a follow-up appointment, Petitioner's surgeon noted that he "has full range of motion, minimal pain at the end ranges of forward flexion [and] 4+/5 strength in all planes " Pet'r Ex. 21, at 00484. In plainer terms, this means that he has nearly normal strength and full range of motion in his left shoulder, with minimal pain. Petitioner does not dispute the doctor's findings. Although his right shoulder and arm are not at normal strength for an adult male, there are no serious medical issues with either, and Petitioner acknowledged that there are no physical limitations in using them. In fact, Petitioner uses his right arm to drive and steer his motorized scooter. When walking short distances, Petitioner uses a cane with his right arm, sometimes with Lily, other times without her. When Lily accompanies him, she provides balance and stability on his left side. When riding in his motorized scooter accompanied by Lily, Petitioner normally steers with one hand and grips a leash or harness attached to Lily with his other hand. The dog usually walks in front, or to the side, of the scooter. However, when the dog is in the follow position off-leash, Petitioner cannot see Lily and thus is unable to control her, even if she is wearing an electronic collar. As the Southland trainer explained, if the owner cannot see the dog, then they do not know what the dog is doing. Petitioner admits that he cannot maintain control of his service animal at all times without holding a leash or harness. In both his Petition for Relief and testimony at hearing, Petitioner acknowledged that except for "an extended period of time," his disability does not prevent him from being able to hold and use a leash or harness on Lily. This was confirmed by his wife. Despite the injury to his left shoulder, he has held and used a leash or harness with that arm. The greater weight of evidence supports a finding that Petitioner is able to hold a leash with his hand, at least for short or moderate periods of time, or that a leash can be easily tethered to his wrist or a mobility device on the scooter. A contention that the leash may become entangled in the scooter's wheels has been rejected for the reasons stated in Finding of Fact 8. Disney's Policy on Service Animals Disney theme parks are typically crowded and noisy. On any given day, tens of thousands of guests, including large numbers of young children, frequent the parks. Service animals are routinely granted access to the theme parks. However, Disney park rules provide that "[s]ervice animals must be under the control of the owner at all times and should remain on a leash or in a harness." Resp. Ex. 1, p. 2. The requirement is not just that the dog wear a harness, but rather that the harness is being used. For the reasons expressed above, there are legitimate safety concerns that underpin this rule. State and federal law require that a visitor seeking entrance to a public accommodation with a service animal must have the animal on a leash, harness, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of one of those restraints would interfere with the animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control, such as voice control, signals, or other effective means. See § 413.08(3)(a), Fla. Stat.; 28 C.F.R. § 36.302(c)(4). Disney contends that its policy conforms to both state and federal law. The Charges The Complaint, filed on February 3, 2015, alleges that on May 4, 2014, Petitioner was denied admission to Epcot because his dog was unleashed; on August 27, 2014, he was asked to leave Downtown Disney because Lily was unleashed; on October 9, 2014, he was denied admission to Magic Kingdom because Lily was unleashed; and on December 5, 2014, he was denied admission to Animal Kingdom due to Lily being unleashed. However, no evidence was presented concerning the visit to Magic Kingdom in October 2014, and that charge has been disregarded. The testimony concerning Petitioner's other three visits to the theme parks is sharply in dispute. The undersigned has accepted as being the most credible the following version of events. Epcot Visit in May 2014 On May 4, 2014, Petitioner visited Epcot with his wife, daughter, and service animal. As Petitioner entered the International Gateway in his motorized scooter, Lily was unleashed and sitting near the bag check area in front of the park, which was around ten or 15 feet from Petitioner. A main entrance cast member is a Disney employee trained on park rules who observes guests entering the park. A cast member noticed that Lily was off-leash, which was against park rules, and stopped Petitioner, informing him that he must have the dog on a leash before entering the park. Petitioner refused to do so. Petitioner's contention that the cast member had a belligerent and hostile attitude during the encounter is not credited. Even assuming arguendo this is true, treating a guest in a rude and hostile manner does not equate to discrimination by the public accommodation. See, e.g., Lizardo v. Denny's, Inc., 270 F. 3d 94, 102 (2d Cir. 2001). While Petitioner spoke with a second cast member, Lily was unleashed and untethered, approximately ten to 15 feet away from him near a half-wall by the entrance to the park. During the 30-minute encounter, there was little, if any, attention being paid to Lily, who had no physical tether to prevent her from wandering off. A cast member then contacted Jim Beeson, Epcot's Operations Manager, who arrived to speak with Petitioner and apologized for the delay in having to walk from another area of the park. Petitioner informed Mr. Beeson that he was unable to hold a leash and needed to have his service dog untethered. During his conversation with Petitioner, Mr. Beeson observed Petitioner talking with his hands and did not see any indication that Petitioner was unable to hold a leash. He also observed that there was no leash on Lily, unlike any service dog he had encountered while working at Disney. Mr. Beeson further observed that Lily was not always by Petitioner's side, she tried to get up and wander off several times during the conversation, and she did not respond to voice commands. In fact, Mr. Beeson noticed that Petitioner's wife continually had to push the dog back so that it would not leave. Based on his 33 years of experience at Disney, which includes observing numerous guests with service animals, Mr. Beeson concluded that Petitioner could not maintain control over his dog with voice and hand signals. At no time during the interaction did Lily perform any tasks for Petitioner. In Mr. Beeson's opinion, he questioned whether Lily was even qualified as a service animal. After speaking with Mr. Beeson for approximately 30 minutes, Petitioner decided to leave the park. Disney did not deny Petitioner access to the park on account of his disability, or simply because of Lily's breed. Nor was he treated differently than any other guest with a service animal. Rather, Disney's action was motivated solely by concerns for the safety of the other guests. Had he agreed to place a leash on Lily, Petitioner would have been admitted to the park. Downtown Disney Visit in August 2014 On August 27, 2014, a guest notified a Downtown Disney security cast member of concerns about a large, unleashed dog on the property, which turned out to be Lily. Security control radioed the duty manager, Dan McManus, who arrived on the scene less than ten minutes later. When he arrived, Mr. McManus saw Petitioner, accompanied by his wife, speaking with the security cast member. Petitioner told Mr. McManus that he was unable to hold a leash due to his disability. According to Mr. McManus, he did not see any indication that Petitioner was unable to hold a leash, as he observed Petitioner waving a large binder and flipping through pages of what he claimed were American with Disabilities Act (ADA) guidelines. Mr. McManus is familiar with ADA guidelines as he frequently encounters guests with service animals on the property. He noted that during his seven years at Downtown Disney, he has observed service animals of all different shapes and sizes on the property. However, Mr. McManus explained that these service animals are always on a leash or tether, and that if a guest is in a wheelchair or electric scooter, the guest may hold a leash, the leash may be tethered or attached to the scooter or wheelchair, or another member of the party may hold the leash for the guest. Petitioner refused to comply with any of those options. Mr. McManus again informed Petitioner that Disney's policy required that service animals be on a leash. He noticed that Lily was wearing some sort of a shock collar, but did not recall the dog wearing a harness. At no time during the interaction did Lily perform any tasks for Petitioner, who had informed Mr. McManus that Lily helps open doors for him. Before Mr. McManus arrived, Petitioner telephoned the Orange County Sheriff's Office and requested that a deputy sheriff be sent to the theme park, presumably to observe the encounter. Petitioner's conversation with Mr. McManus ended when two deputy sheriffs arrived on the property. At that point, Mr. McManus went back to his office to check with the Services for Guests with Disabilities Department to inquire whether an electronic collar would satisfy the leash requirement for service dogs. He was told to adhere to the Disney policy and require that the dog be on a leash. Before Mr. McManus returned, Petitioner departed the premises. Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed, and he was not treated differently than any other guest with a service animal. Had Petitioner used a leash or harness for Lily, he would not have been approached or stopped during his visit to Downtown Disney. Animal Kingdom Visit in December 2014 On December 5, 2014, Petitioner visited Animal Kingdom with his wife and mother. He was stopped at the front entrance because Lily was not leashed or tethered. Larry Hetrick, a guest service manager at the park, was called over to speak to Petitioner. When Mr. Hetrick arrived, Petitioner was speaking with two security employees. No other Disney personnel were present. Petitioner's perceived fear that Disney personnel were "waiting" for him when he approached the park is unfounded. Petitioner explained his interpretation of federal laws and civil cases to Mr. Hetrick but never said why Lily could not be on a leash. Contrary to Petitioner's testimony, Mr. Hetrick did not tell him that Disney's policies superseded federal law, and he patiently listened to Petitioner's summary of the law while examining his paperwork. At no time during the encounter did Lily perform any service animal tasks. Ten minutes later, the duty manager for Animal Kingdom arrived and the three spoke for another ten minutes or so. When Petitioner told them that he intended to file a legal action against Disney, the conversation ended. He was not told that he "had to leave the premises." Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed. Moreover, he was not treated differently than any other guest with a service animal. Had Petitioner complied with Disney's policy, he would have been able to access the park.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 26th day of April, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 26th day of April, 2016. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Geoffrey E. Parmer, Esquire Dogali Law Group, P.A. Suite 1100 101 East Kennedy Boulevard Tampa, Florida 33602-5146 (eServed) Jeremy M. White, Esquire Kaye Scholer, LLP The McPherson Building 901 15th Street, Northwest Washington, D.C. 20005-2300 (eServed)
Findings Of Fact Petitioner has been an employee of HRS for more than seven years. She has cerebral palsy and uses a motorized wheelchair. During her tenure with HRS, she worked initially as a CETA employee under the supervision of Timothy Myers. She was a Social Work Assistant in a para-professional position requiring minimal paperwork. She did very well and had no problems with her supervisor or cc-workers. She received a promotion to the position of AFDC worker under the supervision of Ann Hauckes in October, 1979, and worked in the HRS Suncoast office in St. Petersburg for approximately six months. During that six-month period, she had problems completing the "on-call" and workload responsibilities of an AFDC worker and was placed on conditional status. Due to her unhappiness with her supervisor and her conditional evaluation, she was transferred from the HRS Suncoast office in St. Petersburg to Pinellas Park under the supervision of Theresa Ruppel. Ruppel supervised Petitioner from March, 1980 to January, 1982. Ruppel was instructed by her superiors to give Petitioner a limited caseload so that Petitioner could perform her job duties as an AFDC counselor, and Petitioner was given a specialized caseload of AFDC foster care cases which required limited client contact and the use of small, lightweight files. Petitioner continues to be assigned a minimal workload of substantially less than other AFDC workers. She is evaluated just within her special work assignment and not within the responsibilities of an AFDC worker. When Petitioner first came to Ruppel's unit, she brought with her unfinished "on-call" work which Ruppel had to transcribe for her. During Petitioner's tenure under Ruppel, she served only as a backup "on-call" worker. Ruppel found Petitioner to be a very difficult employee to supervise. Petitioner had emotional outbursts as a worker in Ruppel's unit but received no disciplinary action, even when on one occasion she left the work site after having an emotional outburst and refused to advise the supervisor as to why she was leaving or when she would return to work. After Ruppel transferred out of the Pinellas Park Service Center, Susan Gilbert became Petitioner's supervisor from January, 1982, until January, 1984. The initial working relationship was good. Gilbert rearranged her office so Petitioner's wheelchair moved easily within it. Gilbert assisted Petitioner by updating Petitioner's policy manual, by making an easy reference chart for Petitioner so that every time Petitioner needed something, she did not have to pull out the HRS manual and read it but could just refer to the chart. Gilbert even assisted Petitioner with a case in which the written narrative had been accomplished by Petitioner, by taking the computer document apart, stapling it, and organizing it so it could be put in the filing cabinet. Gilbert also assisted Petitioner in preparing for the recertification test that all AFDC counselors must take. Gilbert made up some exercises to help Petitioner take the test. She allowed Petitioner 8 hours in which to take the 4 hour test. When Petitioner failed the test, Gilbert gave her 12 hours in which to take it again. The relationship between Gilbert and Petitioner deteriorated when, in March or April of 1982, Petitioner invited Gilbert, her supervisor, to take two days of annual leave and a weekend to accompany Petitioner to a Miss Wheelchair pageant, an invitation which Gilbert declined because she did not want to have a personal relationship with any person she supervised. The relationship then deteriorated, with Petitioner calling Gilbert a snob for refusing to go to the Miss Wheelchair pageant and accusing Gilbert of not liking her due to her handicap. Thereafter, there were emotional outbursts by Petitioner over minor matters. Petitioner served as a backup "on-call" person under Gilbert until December of 1982, when she was removed because she had complained about the amount of paperwork and she did not want to be "on-call" on Fridays. Petitioner was put back on "on-call" duty in June, 1983, due to Petitioner's complaints, and she worked "on-call" with her friend Frances Whittle who was willing to help Petitioner with those duties until Petitioner was moved out of Gilbert's AFDC Unit in January, 1984. Between January, 1983, and December 5, 1983, Petitioner would not accept authority or supervision from Gilbert. Petitioner questioned every decision Gilbert made. She would leave Gilbert's office upset and come back in a matter of minutes, arguing with her supervisor. The problem in the working relationship between Petitioner and Gilbert resulted in high-level District Administration meetings to determine how to resolve the problem. Initially, in early 1983, the high-level District officials met to determine how they could resolve the conflict, and the Deputy District Administrator suggested transferring Petitioner to the Clearwater AFDC Unit under a new supervisor. Petitioner opposed being moved to the Clearwater office, and so the Department did not move her from Pinellas Park to Clearwater. Both Gilbert and Petitioner agreed to try to resolve any problems on their own. As 1983 went on, the work relationship again deteriorated which again resulted in the District Administrator, Deputy District Administrator, Personnel Officer, Gilbert, Petitioner and the Human Services Program Administrator meeting to see if they could resolve the deteriorated relationship. There was a meeting on December 5, 1983, with those persons and another meeting on December 12, 1983. On December 5, 1983, four options were presented to Petitioner: (1), transferring Gilbert to another unit if HRS could find another supervisor willing to trade positions with her; (2), transferring Petitioner to a position in St. Petersburg under a different AFDC supervisor; (3), allowing Petitioner to work at home and equipping her office at home with all the rehabilitation equipment necessary to do her work, under which option she would only have to be involved with Gilbert once a week to have her work reviewed; and (4) having Petitioner stay at the Pinellas Park office but transferring her supervision away from Gilbert, with Petitioner being supervised long distance by Karen Raym Girard who would then drive, initially from Suncoast in St. Petersburg and, when the Wildwood Service Center opened, from the Wildwood office in St. Petersburg once a week or as often as was needed by Petitioner. Option 4 was the option chosen by Petitioner at the December 12 meeting. 2O. The effective date for the transfer of supervision from Gilbert to Karen Raym Girard was to be effective January 3, 1984. Subsequent to December 12, 1983, but before January 3, 1984, Petitioner changed her mind and did not want option 4. Petitioner requested a third meeting with the District Administrator after she had changed her mind about the option she had selected. The District Administrator declined a third meeting and told Petitioner that she could institute an internal grievance if that is what she wanted to do. When the District Administrator did not have yet another meeting, Petitioner filed an internal HRS grievance. Before the grievance committee met, the transfer of supervision did take place on January 3, 1984. During the period January 3, 1984 until February 10, 1984, Petitioner decided she was being segregated because she was working in the Pinellas Park office but was being supervised by Girard who was located in the Suncoast office in St. Petersburg. Petitioner's feelings of segregation were based upon the fact that she was taken off "on-call" duties in Gilbert's office because she was no longer a member of that unit; her name was removed from Gilbert's bulletin board showing the names of the persons in Gilbert's unit; and there was a sign placed on a vacant office in the building reserving it for Girard to use when her supervision of Petitioner required. While Petitioner was under the supervision of Girard from January 3, 1984, until February 10, 1984, Girard had weekly conferences with Petitioner where Girard would come from St. Petersburg to Pinellas Park to the office assigned to her in the Pinellas Park Service Center. Petitioner told Girard that she wanted Gilbert to be a personal friend with her and associate with her after working hours, and that she felt that Gilbert did not like her because Gilbert did not pursue being a personal friend of hers. During the time that Girard supervised Petitioner, she found Petitioner very difficult to supervise. Petitioner would lose her temper, raise her voice, or lose emotional control. The main issue Petitioner always wanted to discuss with Girard was that she wanted Gilbert to be friends with her. Petitioner did not want to discuss work-related issues with Girard. From February 10, 1984 until August 31, 1984, Petitioner was on extended leave -- annual leave, sick leave, and leave without pay. She never physically transferred to Wildwood in St. Petersburg, although her office furniture was moved there while she was on leave. The HRS internal grievance committee consisted of one member of Petitioner's choosing, one of HRS' choosing, and one agreed upon by both HRS and Petitioner. The internal grievance committee found: that an irreconcilable personality conflict existed between Gilbert and Petitioner; that the conflict was based on Petitioner's desire for a relationship that was personal as well as professional and Gilbert's inability to provide that relationship; that Petitioner did not have any problems with performing her job duties and was rated above satisfactory (it did not mention that Petitioner was only evaluated against her own performance) that considerable efforts were made to try to improve and clarify the relationship between Gilbert and Petitioner; that those efforts were not successful and the situation deteriorated rather than improved; that four options or solutions were discussed with Petitioner; that Petitioner participated in the selection of the option to remain in Pinellas Park but transfer her supervision, and that she agreed to that option; that subsequently she experienced a feeling of segregation and decided that the option was not in her best interest; that due to her physical location and supervision, she was segregated from her unit; that the committee was unable to substantiate any instance of discrimination due to Petitioner's handicap on the part of management; that she had been afforded special accommodations due to her handicap not normally given employees; that Petitioner's proposed solution was to return to her previous unit for a 90-day trial period during which all parties should work to improve the relationship. On February 9, 1984, the internal grievance committee recommended that: Both Petitioner and Gilbert be referred to EAP, Petitioner for counseling and more realistic expectations in dealing with management/employee relationships and Gilbert for sensitivity training in dealing with employees with special needs. Petitioner be physically transferred to Girard's unit when the HRS move to the Wildwood Service Center was made for the following reasons: Petitioner was experiencing segregation which could only be alleviated by physically locating her with the unit of which she was a member. The personality conflict between Gilbert and Petitioner could not be solved. The situation was detrimental to Petitioner's emotional and physical well being. By waiting to relocate Petitioner at the time of the HRS move to Wildwood, she would not be singled out as being moved because of a problem. Moving her when others were also being moved would afford her the opportunity to naturally interrelate with staff experiencing the same action. It was hoped that would facilitate her adjustment to her new service center. The Wildwood facility could easily be made accessible for her and a room could be adapted to her needs. Wildwood is on the Interstate and, therefore could be reached from Petitioner's home within a reasonable time frame. In the future, District Management should make every effort to afford Petitioner treatment consistent with treatment afforded all other employees. Special considerations given in the past had exceeded reasonable accommodation and had led Petitioner to have unrealistic expectations and difficulty in adjusting to the normal work setting. The many special considerations had not been to her benefit and, in fact, had been a disservice to her. On February 23, 1984, Petitioner's position was transferred from Pinellas Park to St. Petersburg. The District Administrator accepted the recommendation of the internal grievance committee and agreed to transfer Petitioner from Pinellas Park to Wildwood in St. Petersburg when Wildwood opened in the spring of 1984. The District Administrator was satisfied that Petitioner could drive from Pinellas Park to St. Petersburg where she had previously worked. Petitioner was very unhappy with the HRS internal grievance committee recommendation because she did not want to be transferred from Pinellas Park to St. Petersburg where she had formerly worked. Her preference at that Point was that the District place her back under the supervision of Gilbert and that they attempt to work out any relationship problems. When Gilbert transferred away from her supervisory position in Pinellas Park to a counseling position in the Central Licensing Unit in June, 1984, HRS offered Petitioner the opportunity of coming back to Pinellas Park with a new supervisor, Lawrence R. Raym. Raym supervised Petitioner from July 1, 1984, until February, 1985. During that time, Petitioner's temper tantrums continued. It was estimated that her caseload only took from 2 to 7 days to accomplish each month. Susan McPhee supervised Petitioner from March of 1985 until September of 1986 and also had problems with Petitioner's general acceptance of supervisory authority. During McPhee's supervision of her there were times when Petitioner would not like what McPhee told her and would abruptly terminate the conference by simply wheeling out of the room in anger. Martin Ademy became Petitioner's supervisor in October of 1986 when this case was initially scheduled for final hearing. Ademy has not had any difficulty in supervising her. Ademy estimates that it should take her between 10 to 12 days a month to do the work assigned to her. Any work she does not complete is assigned to another AFDC counselor. Ademy does not have Petitioner do "on-call" work because, in his opinion, she cannot handle those duties. Although Petitioner has applied for some unidentified promotions which she has not received, there is no evidence that Petitioner is able to perform the duties of those unidentified positions with reasonable accommodations being afforded her. Additionally, some of those positions were at locations to which Petitioner had refused to be transferred. Respondent has not discriminated against Petitioner based upon her handicap and has not retaliated against her in any way. HRS has provided Petitioner with much more than reasonable accommodation. To the extent that HRS has treated Petitioner differently than other employees, it has been through pampering rather than discrimination or retaliation. Petitioner has not suffered any physical or emotional illness as a result of any conduct on the part of Respondent. Although Petitioner testified that her absence from work from February until August, 1984, was due to illness brought on by Respondent's discrimination and retaliation, her testimony is simply untrue. Petitioner became ill while she was on annual leave. The minimal medical attention she received was for long- standing medical problems. Although Petitioner had provided HRS with reports from her doctor indicating her medical problems were work-related, those opinions were not those of her doctor. Rather, those reports were "doctored" by Petitioner herself before she gave them to HRS.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent has not discriminated or retaliated against Petitioner and dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. DONE and RECOMMENDED this 9th day of July, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Beverly L. Lassor 6333 81st Avenue North Pinellas Park, Florida 34665 Barbara Ann Dell McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
