The Issue Whether Respondent established that this case meets the criteria for the revocation of Petitioner’s Class I, Class II, and III captive wildlife permits, pursuant to Florida Administrative Code Rule 68A-5.004 and Chapter 372, Florida Statutes (2007).
Findings Of Fact Petitioner Oltz is the owner of Pangaea Productions, which she operates along with a related not-for-profit corporate entity, Wild Animal World. The businesses provide wildlife shows and exhibits, and care for the animals. Oltz became a volunteer at Pangaea in 1996, then an investor when she became partners with Grant Kemmerer after buying the interest of his previous partner, Thomas Batchelor, in November 1997. Oltz was first licensed, as she remembered, in 1999. Oltz is now and has been since 2001, the sole owner of Pangaea Productions. Respondent Commission is the state agency that issued Oltz licenses and/or permits, including a Class I license, pursuant to which she exhibited a leopard; a Class II license that authorized her to exhibit, among others, monkeys, servals, and cougars (also referred to as panthers); and a Class III license to exhibit animals that include a scorpion, an alligator, an albino Burmese python, a parrot, a porcupine, a fox, and an anteater. The categories of wildlife are established based on how dangerous each group is in Florida Administrative Code Rule 68A-6.002 (1). Respondent Commission seeks to revoke Oltz's licenses to possess, exhibit, and sell captive wildlife in all classes due to incidents that occurred in the years listed below under circumstances that will be described in more detail in the findings of fact that follow: 2006 Class II cougar attack on four-year old Aisha Elgazzar when Oltz was the animal handler; 2006 Escape of a Class II serval cat during a show that Oltz was conducting; 2001 Class I leopard attack on seven-year old Matthew Tully when Oltz was the exhibitor in charge of the leopard; 1999 Escape of a Class II serval cat from Oltz's home when she had no permit or required precautions. 1998 Class II cougar attack on five-year old Holly Moynahan while Oltz was the handler; 1998 Class II cougar attack on eight-year old Victor Parades while another employee of Pangaea Productions was the handler ; and 1998 Class II cougar bite of animal handler Kimberly Royal, another Pangaea employee. The Commission has issued over 5,000 Class I, II and III permits, approximately 300 in Class I, 4,000 in Class III, leaving the remainder of about 700 in Class II. From 2001 through 2005, 32 injuries to members of the public, and 58 to owners or handlers, or a total of 90 injuries were reported to the Commission. Of the 32 injuries to the public, 18 were caused by Class III, 8 by Class II, and 4 by Class I animals (including the 2001 leopard attack on Matthew Tully). Typically, Oltz’s wildlife shows begin with her showing and allowing people, usually children, to touch or pet the Class III animals. There have been no incidents, bites or other injuries from the Class III wildlife. Lieutenant Patrick Reynolds of the Commission implied in his testimony that Oltz had allowed a Class III large yellow python to escape into her neighbor's tree farm. His testimony that he received notice that the python was in the nursery on the border by Oltz's property, that the python had been given by the farmer to a friend by the time Reynolds got there, and given to another person by the time he contacted the farmer's friend is rejected in light of the absence of corroborating evidence, his apparent lack of impartiality in dealings with Oltz, and the animosity that has developed between the two of them over the years. Contradicting Reynolds, Captain John West, also a Commission staff person, testified that he was not aware of any Class III injuries and/or incidents involving Oltz. Before Oltz displayed the Class II cats, she warned her audiences that the next animal would be bigger and stronger, that they would not be allowed to touch it, and that they must remain seated, and stay calm and quiet. On November 18, 2006, Oltz displayed wildlife at a birthday party for a seven-year-old at the home of Francisco Unanue in Coral Gables, Florida. Approximately 40 children attended, many with their parents. Oltz had previously notified the homeowner of the requirement of shade for the animals and a tent had been set up on the edge of a swimming pool, which she also used as a barrier to prevent Oltz and the animals from being approached from behind since this was not a swimming party and no one was swimming. After each animal was taken out and showed to the audience, it was returned to its cage. The cages were stacked on either side of Oltz with the pool behind her. Following the typical sequence for her shows and after her warnings, Oltz took Georgia, a 60-pound cougar in a complete body harness on a leash, out of a cage. While Oltz was talking to and facing the audience, she admitted that she knew the cat was focusing its attention on something behind her but, assuming it was a float in the pool or some other object, she continued to face the audience and talk about the cougar. Four-year-old, Aisha Elgazzar came from behind the cages along the edge of the pool. The cat had been focused on Aisha and attacked her, causing injuries to her eye, cheek and ear that required stitches. Other adults at the party intervened to hit the cougar assist Oltz by pulling the cougar away from the child. Although Oltz testified that she tried to use cages to create barricade behind her and to keep audiences at least ten feet from the animals, based on measurements taken at the Unanues' home during his investigation and the videotape of the wildlife show at the birthday party, which was viewed during the hearing, Lieutenant Reynolds' opinion is credible that there was a twelve inch space between the kennels stacked three high and the pool, and that the some in the audience were as close as four feet in front of the show. Otlz pointed out that the videotape shows Aisha on her father's lap earlier during the show and implied that he should have kept her there. The videotape also shows Aisha and at least one other child on a glider near the other end of the pool during the wildlife show, but Oltz never looked behind her. After the November 2006 attack, Oltz received an order requiring her to suspend showing Class II animals and to surrender the cougar involved for euthanasia so that its brain could be examined to determine whether it had rabies. In an attempt to avoid the possibility of the seizure of Georgia, Oltz kept the cat with her at all times, and argued that testing Georgia approximately two weeks after the incident was pointless since Georgia had been vaccinated against rabies and that rabies shots for the child had to have started within 48 hours of the bite, if in fact infected. According to Oltz, the warrant to seize the cat was prompted by revenge and pressure from the injured child’s father. There was credible evidence that the health department might reasonably have issued the warrant to avoid having the child unnecessarily continue a series of rabies shots. There was also expert testimony that rabies shots developed for dogs and cats have, as far as has been documented, effective in preventing rabies in captive wildlife and the vaccination of captive wildlife is prudent. It is, however, an "off-label" use, meaning officially not approved having not been specifically developed for use on captive wildlife. On October 31, 2006, while Oltz was displaying a serval cat at a south Florida resort, an inflatable Halloween decoration behind her began collapsing and falling towards her. The frightened serval jumped out of her arms, Oltz let go of the leash, and the cat escaped. The cat was captured approximately seven weeks later. As a result of the incident, Oltz was charged and acquitted of a criminal offense for permitting the serval to escape. On December 8, 2001, Oltz was hired to exhibit animals at a Broward County park. She placed a one-year-old, 50 pound leopard in a corner that had shelter and what she believed were adequate barriers on two sides, bushes on one and a fence on the other. The leopard was in a full body harness chained to a post. Although she was the handler responsible for the leopard, Oltz turned her attention to another trainer who was handling a lemur to suggest how he might accommodate the wishes of a photographer to photograph the lemur in a tree. While Oltz was distracted, seven-year-old Matthew Tully came through the bushes and was bitten on his head by the leopard. As part of a plea bargain to settle criminal charges, Oltz surrendered her Class I license to the Broward County Court. While Oltz testified that her Class I license was permanently revoked, the evidence did not indicate that it was ever surrendered to the licensing agency for the state, the Commission, but she is not requesting, in this proceeding, nor and does not seek to possess a Class I license or permit. Although the cat that attacked Matthew was a leopard named China, Oltz reported falsely that it was a serval for fear of having to give up the leopard. She admitted that she tried to persuade her former partner, Kemmerer, who had moved to Pennsylvania, to say that the leopard was with him. Kemmerer reported her attempt to get the animal out of Florida to Reynolds. Oltz's other apparent motivation for making the false report that it was a serval rather than a leopard was that, at the time, she did not have enough property under lease to meet the size requirements for keeping a Class I animal. Oltz pled nolo contendere to making a false report and to other charges stemming from her negligence in the incident. Oltz testified that she booked the engagement that led to Matthew's injuries through an agent whom she had used before and whom she blames for knowing that the particular exhibit he requested was not suitable for an event like a company family picnic. She testified that the agent used her as a last minute substitute for petting zoo that canceled. Nevertheless, Oltz made a conscious decision to proceed with the exhibit even after she personally saw that it was inappropriate for the venue. She testified that it was her plan to compensate for the danger by limiting the time the animals were out of their cages. In October 1999, a serval cat named Foster escaped from Oltz’s home and was recovered after a couple of hours. She blames the escape on a visitor to her home who left the door open. Although Oltz testified that Kemmerer, who held all the licenses at that time, was living with her, she conceded that Kemmerer had a separate address-of-record, and that the escape was from her address-of-record. Oltz had not obtained, until after the incident, a personal pet license to keep Foster in her home rather than at the ranch area where the wildlife animals were allowed to be kept under the licenses. Only after the escape did she obtain the required license, and comply with the requirement to have a separate room for the serval with bars on the window, and a door with an automatic locking mechanism. In March 1998, Kimberly Royal, a handler who had worked for Pangaea Productions for four years, was bitten by Shasta, a cougar, and her finger was severed and surgically reattached. Oltz believes that the handler was at fault and should not have stuck her finger into the cage to scratch the cat and that handlers are not expected to have the same protections as members of the public. Commission witnesses agree that a higher duty of care is owed to the general public than to handlers and other employees, although they too should be protected from the negligence of others and incidents affecting employees must also be reported. There is no evidence that Oltz or Pangaea were responsible for Royal's injury. In May 1998, Randal Wilson, a handler for Pangaea Productions, with the consent of her then co-owner, Kemmerer, according to Oltz, allowed public contact with the same cougar that had bitten Royal, Shasta. The cougar bit Victor Parades, an eight-year-old, who with his parents was allowed to enter a barricade to take a picture standing behind the cat. Victor darted in front of the cougar towards his two or three-year-old sister, who had been barred because of her young age from the photo shoot, when he saw her climbing over the barricade. The cougar attacked Victor, biting into his thigh requiring emergency room stitching to close the wound. Wilson was also bitten on the hand trying to stop the cat. According to Reynolds, Kemmerer said he was out-of-town and denied that he made the decision to use Shasta around children after she had previously bitten a handler. Reynolds believed Kemmerer, not Oltz, who testified that she would have preferred to have Wilson use Scuffy, a cat that was more appropriate for use around children. She did not indicate that she made her preference known at the time, and in fact said that she was still learning the business, that Kemmerer was in charge and, therefore, that he is to blame. The Commission subsequently changed its rules so that photo shoots with dangerous animals are allowed only with contracted professionals, not with members of the general public. On December 23, 1998, Oltz was the handler at a wildlife show for a birthday party for a young child when five- year-old Holly Moynahan was attacked by the cougar, Chase. Oltz testified that Holly's mother dropped her off at the party and that she, Oltz, did know that her mother was not present. Holly, she testified in deposition, was unaccounted for when everyone sat down. Holly came from behind the kennels, between the kennels and some bushes. The cat, reportedly, jumped on Holly's back and its teeth sliced open her scalp from her head to the base of her neck. Subsequent criminal charges were resolved in a settlement agreement. For a probationary period of one year, Oltz was required to use a portable fence as a barrier between wild cats and the public. The judge required that the barrier be approved by Lieutenant Reynolds. There was a dispute between Oltz and Reynolds over the adequacy of the barriers she proposed to use. Reynolds testified that the barriers that he did not approve were a free- standing portable dog kennel approximately 30 inches tall and one made out of white PVC pipe with plastic ties. Ultimately, he approved one made with metal panels equipped with stanchions, that he believes was made to comply with his requirements, at the direction of Kemmerer not Oltz. Oltz testified that Reynolds deliberately held up approval of a barrier. The approved barrier was used for the year during which there were no injuries, then discontinued. Reynolds said the use of the barrier was to be continued, based on a policy set by Kemmerer before he left Pangaea, but that Oltz changed the policy. Oltz said the requirement was applicable only during the probationary period and that barriers give a false sense of security, as she said was later shown in a subsequent incident involving injuries to Victor Parades. Oltz testified that it is preferable to have a second trainer to watch what is happening behind the main trainer, but she only made that preference optional for her clients, offering lower prices if only one rather than two handlers attended a show. In 2007, for example, she testified that only 30 shows were booked at the higher cost for two trainers. In the same incident in 1998, Oltz was charged by the USDA of mishandling the lemur for agreeing to place the lemur in a tree. According to Oltz, the lemur was not mishandled and she only entered a consent agreement with the USDA to avoid a personal fine of up to $65,000 and another fine against Pangaea for up to $50,000. Instead, she entered into the agreement and paid a $5,000 fine. Oltz testified that Pangaea Productions had an audience of 191,632 people at public and private events in 1997, with no incidents of bites or escapes. In 1998, it had an audience of 41,417 at private shows and 186,150 at public shows or exhibitions, or a total of 227,567 people. That was the same year that Oltz says the handler was injured at her own fault and that the Victor Parades' injuries by the same cat that injured Royal, were Kemmerer's fault. It is also the year that Oltz was sentenced to probation, after being the sole handler when a cougar injured five-year old Holly. Inexplicably, Oltz testified that she was not licensed until, she believed, 1999. In 1999, when the serval cat, Foster, escaped from Oltz’s home for only a couple of hours due to what Oltz claimed was a visitor's negligence, 38,872 private attendees and 175,200 public attendees, or a total of 214,072 people saw Pangaea Productions shows and exhibits, with no injuries. In 2000, total attendance was 205,000 with no injuries to the public. That was during the time that Oltz was required to use a court- ordered barricade. In 2001, when Oltz took complete control of the business, 209,462 people attended shows and exhibits, and the leopard attacked Matthew Tully while she was the exhibitor in charge of the leopard. During 2002, one park discontinued the use of Pangaea Productions shows and exhibits due to the negative press related to Matthews's injuries. In 2002, the total number of people who attended shows and exhibits was 64,738, with no incidents of bites or escapes. In 2003, 47,197 people attended shows and exhibits, with no adverse incidents. In 2004, 44,995 people attended exhibits or shows with no attacks or bites. In 2005, 48,848 people attended the shows and exhibits with no injuries. In 2006, the total number of people attending shows or exhibits was 53,526, when Oltz handled the cougar that attacked Aisha Elgazzar, and the serval escaped on Halloween. After the cougar attack in November 2006, Oltz has continued to do shows with only Class III animals. As of the date of the hearing in 2007, she had conducted 312 shows with a total attendance of approximately 20,000, with no bites, injuries, or escapes. Over the years, Oltz has had an audiences of 1,307,326 people with four injuries to the public, or three one millionths of a percent of attendees injured. Oltz currently owns a spot nose guenon monkey, a vervet monkey, three serval cats, and two panthers, or a total of seven Class II animals; and 39 mammals, alligators, and snakes that are Class III wildlife. Oltz earns a salary of $35,000 a year, from approximately $200,000 a year in gross receipts to Pangaea Productions. She is a high school graduate, who also took psychology and mathematics classes at a community college. Oltz believes her business will be adversely affected by not having a cougar in the exhibits and shows, but that a serval could be substitute of and that the financial impact also could be mitigated by the use of monkeys, the second most frequently requested animal after the cougar. Oltz also asserted that at least five other competing businesses exhibit captive wildlife, including cougars, the animal most requested for the shows, and that her shows are safer because all of the animals she uses are hand raised and vaccinated for rabies. None of her animals has ever been found to have any diseases. By using the same animals over and over in shows, in contrast to some of her competitors, Oltz asserted that her animals learn the routine and behave better. Oltz’s animals are kept in larger than required cages, designed to resemble their native habitats and are subject to random inspections at least every four months by USDA. The concrete floors of the cages are sterilized weekly. Only after Hurricanes Katrina and Wilma did the Commission find unsafe damaged older wooden cages at Oltz's facility. The Commission has never had issues concerning the sanitation or cleanliness at current Pangaea location In response to Oltz's assertion that the Commission unfairly and arbitrarily targets her and overlooks violations by her competitors, Lieutenant Reynolds testified that she has had a lot more incidents than her competitors. One competitor is Batchelor, the former Pangaea partner from whom Oltz bought her interest, who reportedly had three bites from 1997 or 1998 to 2005. Reynolds investigated Batchelor for a cougar bite around 1997 to 1998, and a lemur bite in 2004, both to the members of the public. Reynolds believes that Batchelor now uses a stage and barricades for his shows but conceded that Batchelor probably does not carry a stage to birthday parties. In 2005, Batchelor was cited for improperly securing a cage after a ringtail lemur escaped and bit a worker at his ranch. Although Reynolds testified that he once "camped out at the State Attorney's Office" trying to get Batchelor prosecuted criminally, the Commission has not taken any action to restrict, suspend or revoke any licenses held by Batchelor. Another competitor is Vanishing Species, operated by Jeffrey and Barbara Harrod, in Broward County. Lieutenant Reynolds initially testified that he has not investigated nor heard of incidents involving that company that resulted in injuries to the public. On cross-examination, Reynolds did remember investigating when a Siberian tiger bit Mr. Harrod himself. Captain West recalled investigating the biting and scratching of a three-year-old, during a photo shoot, by the Harrods' monkey, for which they received a warning in February 2000. Eight months later, a five-year-old child was bitten on the chest while petting a cougar owned by Vanishing Species. A recommendation for non-renewal of the Harrod's license was, according to Captain West, forwarded to the administrative staff in Tallahassee, but their license was, nevertheless, renewed. Otlz testified that Lieutenant Reynolds overlooked violations by the Metro Zoo. Reynolds testified that after a tiger killed a handler at the Zoo, the final finding was that it was "handler error." Metro Zoo has had incidents that Reynolds considers not unusual for large wildlife facilities, including a kangaroo bite, and elephant that threw a handler against a rock resulting in broken collar bones, ribs and bruised spleen, and an orangutan that broke a veterinarian's arm. Despite Oltz's allegations and Reynold's discrepancies and claim of lack of memory, the record supports that conclusion that Oltz has had more incidents than her competitors. Even excluding the handler's bite and the Parades' attack where she was not the handler and blames Kemmerer for selecting the wrong cougar, her situation is distinguishable from that of her competitors. First, the attacks on the Elgazzar, Tully and Moynahan children were serious and resulted from the same negligent failure to pay adequate attention to the surroundings, and to her failure to take reasonable safeguards, including the use of barricades or another person to observe what was happening behind her. Second, Oltz blatantly and deliberately violated the law by identifying a different cat in the most recent attack and by keeping a serval as a pet without the proper permit and precautions. It is also a matter of great concern, if not an aggravating circumstance, that Oltz blames others: (1) when she failed to, at least give her opinion, about the appropriate cat to use; (2) when she did not refuse to display animals in what she knew to be an improper venue with children, (3) when she had not obtained the proper permit or installed the required precautions for keeping a Class II animal in her home, (4) when she suggested that the injuries to a child occurred because her mother dropped her off at a birthday party and that a father was at fault for not keeping his child on his lap throughout her show. Her attitude and priorities, as well as her disregard for the law, will be troublesome for the Commission, especially if Reynolds in the investigator assigned to her area and if she continues to have a captive wildlife permit.
Recommendation Based upon the foregoing Findings of Facts found and Conclusions of Law reached, it is hereby RECOMMENDED that a final order be entered which revokes Class I and II captive wildlife permits and/or licenses issued to Corrine Oltz and/or to any related business entities. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 10th day of October, 2007. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Alan S. Ross, Esquire Robbins, Tunkey, Ross, Amsel, Raben Waxman & English, P.A. 2250 Southwest 3rd Avenue, 4th Floor Miami, Florida 33129 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050
The Issue Whether Respondent established that this case meets the criteria for the denial and revocation of Petitioner’s Class I, Class II, and Class III captive wildlife permits pursuant to Florida Administrative Code Rule 68-1.010 and chapter 379, Florida Statutes (2015).1/
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: This action arises from FWC’S decision to revoke and deny Petitioner, Jerry Holly’s, licenses to possess Class I, II, and III wildlife for exhibition and sale and his game farm license application. Through his company, Shilo Zoo and Park, Petitioner owns and operates a facility on 817 acres near Micanopy, Florida, where he raises animals for sale. Petitioner has held his licenses since 2002. FWC first inspected Petitioner’s animal operations on June 12, 2002. Investigator, Rick Brown, conducted the inspection and found certain caging and enclosure deficiencies. By the next inspection, conducted on October 2, 2002, Brown reported that Petitioner had made the necessary corrections and recommended permit approval. By April 7, 2004, Petitioner’s inventory of animals had increased significantly, and on that day, Investigator, Janice Jones, accompanied by Brown, reported observing additional caging, enclosure, and other deficiencies, including: the zebra fencing was four feet high instead of the required six foot height; the lemur caging was constructed of 18- gauge material rather than the required 14-gauge material; the bongo enclosure was six feet high rather than the required eight foot height; the prevost squirrel caging was constructed of 16-gauge material rather than the required 14-gauge material; no stimulation or manipulation devices were provided to the lemurs; and when asked, Petitioner was unable to produce business transaction records upon request. Regarding the April 7, 2004, inspection, Jones testified that Petitioner “had a couple issues at the time, but overall the facility was very well.” By the time of the next inspection, on June 14, 2004, Petitioner had corrected all of the deficiencies noted in the April 7, 2004, inspection. On January 28, 2005, Investigator Jones reported that Petitioner’s enclosures exceeded caging requirements, and she recommended that Petitioner be issued a Class I license for Gibbons monkeys. At the time, the rules required a five-foot fence and Petitioner had an eight-foot perimeter fence encircling his property. Investigator Jones reported on January 14, 2007; February 12, 2007; June 21, 2007; June 22, 2007; October 22, 2007; December 19, 2008; and January 19, 2010, that Petitioner’s enclosures met or exceeded minimum requirements. Petitioner also was approved for rhinoceros and bears, and Jones reported that Petitioner’s animals appeared healthy. Although Jones testified that “more likely than not,” Petitioner could not document all of the coming and going of his animals, her June 2007 and December 2008 reports state that Petitioner’s acquisition paperwork was in order. Jones testified that she believed that she inspected Petitioner’s facility at least one more time after January 2010, and she could not recall any discrepancies. While Jones was Petitioner’s inspector, the FWC sometimes asked Petitioner to hold animals that had been abandoned or were under quarantine. In one instance, the agency issued Petitioner a special permit to keep a chimpanzee. On one occasion, Petitioner contacted Jones about an alligator that was on his property and asked for her assistance in removing it. Petitioner’s former USDA Inspector, Dr. Thomas Callahan, testified that during his tenure, Petitioner’s animals and his facility looked very good. He also inspected Petitioner’s paperwork and could not recall ever having a problem. Dr. Callahan retired in 2006. On April 21, 2009, a patas monkey escaped from Petitioner’s facility. Jones believed that the monkey escaped during a transfer and not due to a problem with caging. She had inspected the caging and found that it was acceptable, “everything looked good.” She also found that Petitioner was forthcoming about the monkey and did not try to hide the escape. Jones testified that an escape in and of itself is a violation of FWC rules. Petitioner hired Kim Greely in 2012 to take care of his animals and the paperwork. In addition to Ms. Greely, Petitioner employed other individuals to care for the animals on a daily basis. If Ms. Greely was not available on a given day, another employee would cover for her. The first FWC inspection that took place after Greely was hired occurred on October 17, 2012. In that inspection, Investigator Brown noted several caging, maintenance, and sanitation problems, including: the spider monkey cage door was unlocked; caging U-nails were pulling out of the two-by-six beams, creating a gap between the beam and the containment wire; dens for the animals were not accessible to the animals; excessive rust was present on much of the facility caging; a broken padlock on the Patas monkey cage was discovered. Another padlock was located and the cage was locked during the inspection; the wooden nest box in the Patas monkey cage needed to be secured as it was wobbling and posed a risk of injury to the animal; most of the monkey cages had no manipulation devices or stimulation devices; some of the animals had no elevated shelving or had broken elevated shelving. This is required for some species, as they prefer to sit on an elevated perch rather than on the ground; there was a torn metal conduit covering the guillotine cable to the gibbon lockdown area, which posed a risk of injury to the animal; erosion was occurring under the exterior door of the gibbon cage and beneath the Ringtail lemur cage; one of the corners of the foundation supporting two cages was unsecured and not stable. The cages were teetering on a couple of pieces of wood and a cinder block; rotted and/or moldy lumber and other materials were used for and present in the caging; there were unsecured seams in the caging materials, causing gaps in the caging, which poses a risk of escape; in many of the cages, the material used to construct the cage was not of sufficient strength; three of four dens had rat feces, and in one den, three live rats were observed; excessive feces were present in a lemur cage; standing water was present in the Tamarin cage. According to Brown, the excessive number of deficiencies indicated that Petitioner was unable or unwilling to comply with the rules. Brown issued a criminal citation to Petitioner as a result of the October 17, 2012, inspection. On April 25, 2013, Investigators Rick Brown and Wayne King conducted a follow-up inspection. Brown noted in his inspection report that most of the violations were corrected, but some also remained uncorrected. The report also reflects that the majority of Petitioner’s enclosures were in compliance with FWC requirements. Consistent with Brown’s report documenting corrections, Brown sent an e-mail on May 21, 2013, to Mindy Wagner, FWC senior clerk, stating, “I was out there a couple weeks ago and Mr. Holly has made some serious progress to correct those identified issues. As for being on the up and up, seems to be so far.” On May 29, 2014, Investigator Brown and FWC Officer, John Wilke, conducted a follow-up inspection. Brown noted in his inspection report that most of the violations noted during the April 25, 2013, inspection had been corrected. However, several additional rule violations were documented, including: two-by-six boards used to close a gap between two sealing panels in a cage were rotting and were pulling apart; an elevated den needed to be attached to the caging and actually elevated rather than sitting on the floor of the cage as was discovered; rust on a horizontal beam on a cage needed to be treated; the broken weld in a ceiling panel needed to be repaired; manipulation and stimulation devices still needed to be provided in some of the cages; dens needed to be provided in some cages. Dens are required to provide the animal a place to retreat to and to provide protection from the elements; some of the cages did not meet the required dimensional requirements or were too small; no safety entrance for the Capuchin monkey cage was present; Petitioner was housing a macaque in a cage without a safety entrance. This meant the animals could not be safely removed from the cage to allow for cleaning; the floor of the macaque cage was covered with feces, likely as a result of not having a proper safety entrance; some of the caging materials did not meet the strength requirements; a portion of the zebra fencing had been damaged, bringing the height to five feet, two inches, rather than the required six feet; the zebra fencing wire was rusting and sections were becoming unattached, creating an inconsistent containment barrier; the giraffe paddock had been damaged and was in need of repair. Brown acknowledged that several of the caging discrepancies noted in the May 29, 2014, inspection involved violations of a few inches. He testified that if he tacitly approved cages off by a few inches it would be a “slippery slope” and he would face questions from other licensees about the standards. Brown likened the concept to a highway patrol officer who does not give a ticket to a driver he pulled over for going 80 miles per hour. It creates tacit approval for circumstances that are not authorized. Investigator, Steve McDaniel, conducted the next inspection on November 24, 2014. Investigator Brown was not with him. It was the first time McDaniel had been to Petitioner’s facility, and his inspection report was lengthy. McDaniel found several cages with rust, some excessive, some just surface rust, and some of the cages were not sanitary, with old fecal waste matter. There were also cages that were too small and some unlocked cages were observed. On cross-examination, McDaniel admitted that several of the pictures in his report in fact depicted surface rust, not excessive rust. McDaniel also clarified that what he was describing as unlocked cages actually were open doors to sheds that contained cages. The cages within the sheds were locked. McDaniel acknowledged that had he seen an unlocked cage within a shed he would have noted it on the report. McDaniel further conceded that most of Petitioner’s cages were actually larger than what the agency required. The only ones that had issues had some lemurs and a Celebes ape. The lemur cages were off by five, six, or eight inches. Investigator McDaniel returned to Petitioner’s facility on December 11, 2014. He was with Investigator Brown to “check up on some things” and because of a tip of some unauthorized animals being kept there. The report states that McDaniel and Brown found two animals with the characteristics of bobcats. In addition, the report noted that animals were in substandard caging due to the cold weather outside, and only on a temporary basis. McDaniel also noted that there were new shelters being built for the cages in the lower area. The lemur cages and capuchin cage had been modified with four-layer plywood, one-half inch thick, in order to increase the height of the cages to exceed the required height. However, the length and width of the cages were still too small, and the report noted that Petitioner would need to request a deviation. Following the December 11, 2014, inspection, McDaniel issued a criminal citation, which was still with the state attorney’s office at the time of the hearing. McDaniel’s report from his November 24, 2014, and December 11, 2014, inspections do not indicate whether any of the deficiencies from the May 29, 2014, inspection had been corrected. Comparing the two reports, however, it is apparent that many of the violations noted in the earlier report had been corrected as of December 11, 2014. And as noted above, McDaniel reported that on December 11, 2014, Petitioner was in the process of correcting issues identified on November 24, 2014. On January 28, 2015, Investigators Brown and McDaniel conducted an unannounced inspection and took numerous photographs of their observations. They were there because of a tip that some animals were being kept on the property illegally.2/ Several violations were noted during the inspection, including: the zebra perimeter fencing had not been corrected and was not of the required height; sanitation and caging issues were still present at the facility; the Celebes monkey caging material met the strength requirement, but did not meet any of the other requirements; the Patas monkey cage and the Celebes apes cages still lacked a safety entrance; some of the cages still did not meet minimum size requirements. Also during this inspection, it was discovered that an alligator was being maintained on the second floor of the barn. Petitioner was not licensed to possess an alligator, and the animal had been placed in a cage that was too small. Petitioner was in Sri Lanka at the time the alligator was found, and it is unclear from this record who put the alligator in the cage. The alligator was unharmed, and the FWC officers released it to the wild. Investigator McDaniel returned on February 12, 2015, to deliver a copy of the Notice of Intent to Deny/Revoke to Petitioner, and to check on the Celebes ape and Patas monkey. On that visit, he noted several prairie dogs in an 18-square- foot cage. According to McDaniel, most of the animals had extreme hair loss, which he surmised could be a sign of disease or stress due to the small cage. McDaniel also found that the Celebes ape had not been moved to a larger cage, although the patas monkey had been moved. Petitioner testified that he had about 20 prairie dogs in an 18-square-foot cage. The animals were being temporarily kept in the cage, as Patty Rivers (the owner of a company that provides animals for motion pictures) was coming over to see them. The animals were missing hair, which Petitioner testified could simply have been due to annual shedding. Investigator Brown assisted in drafting a denial letter to Petitioner concerning Petitioner’s prospective employee, Cindy Bardin. In one of his comments regarding the draft letter, Brown recommended that the agency remove a statement asserting that Petitioner’s violations were putting the public at risk. Over Petitioner’s objection, evidence of an inspection conducted on June 12, 2015, which was after issuance of the Notice of Intent to Deny/Revoke on March 10, 2015, was received in evidence. The investigative report notes that the majority of the deficiencies noted in earlier inspections had been corrected, however there were some minor ongoing and new violations observed. Specifically, some exterior cage doors were found unlocked (although the interior doors were locked), some cages were still without manipulation devices, and sanitation issues still remained in some of the cages. Joanie Swanson testified on behalf of Petitioner. She holds a Class III license and owns capuchin monkeys. In 2013, when her husband was getting ready to retire, they obtained a list of Class I and Class III licensees from FWC and looked at about ten properties in central Florida to house their animals, including Petitioner’s. According to Ms. Swanson, Petitioner’s facility was far superior to the others they visited. The Swansons visited Petitioner’s facility about a half dozen times before they moved any animals, and every time it was clean and beautiful. Petitioner’s facility satisfied all of the Swansons’ requirements. It was a safe environment, it was gated, and the caretakers were very good. It was clean, safe, secure, licensed, and the cages were bigger than she expected. The facility had automatic water. Ms. Swanson testified that she was amazed at what some of the other facilities she visited did not have. Ms. Swanson’s testimony regarding the quality of Petitioner’s facility in 2013 is credited. Ms. Swanson also met Kim Greely, Petitioner’s employee. When she first met Greely, Greely told her that Petitioner was very protective of his animals. Greely said that if there ever was a problem with an animal, Petitioner would make sure that it was taken to the vet. He would drop everything to care for his animals. The evidence established that it was not uncommon for the FWC inspectors to request business records documenting the sale and acquisition of animals, and to be told that the records were not available. And occasionally, when records were provided to the inspectors, they were incomplete. It is important that animals are sold to a licensed person to ensure that the person taking it has the required experience and the required caging to properly care for the animal. Business transaction records document if this occurs during a sale, purchase, or transfer. Moreover, records of sale, purchase, or transfer can be important to track disease transmissions, particularly in birds. Records of sale, purchase, or transfer are also important to prevent the illegal trade of wildlife. Petitioner buys most of his animals in sales in Tennessee, Missouri, and Ohio. At the sales, Petitioner gives the seller an acquisition form. The seller fills out his part and then Petitioner’s employee, Kim Greely, would complete the form. When Petitioner received a bill listing the animals he bought, he would give the records to Greely. Petitioner entrusted Greely with keeping the records of the transactions. She received all of the sale bills and was supposed to keep the records. Petitioner was under the mistaken belief Greely was providing the records to the inspectors. Greely apparently told Investigators Brown and McDaniel that she only received records that Petitioner provided to her. In any event, Petitioner acknowledged at hearing that he was ultimately responsible for keeping records of transactions and providing them to inspectors when requested. The evidence established that on several occasions Petitioner failed in this responsibility. Petitioner admitted to pleading guilty in 2004 to misdemeanor charges for improper caging, and adjudication was withheld. More recently, Petitioner pled guilty in 2012 to failure to maintain cages in compliance with regulations, and adjudication was withheld. Petitioner acknowledged that there have been three escapes from his facility in the past 15 years. Hornbill birds escaped in 2004, and a Patas monkey escaped in 2009. No information was provided regarding the third escape. Likewise, it is unclear as to how the animals escaped, how long they were fugitives, or whether the escapes were attributable to deficient caging. No evidence was presented that any of the escaped animals were injured as a result of their escape, or that any human beings were adversely affected in any way. Petitioner has been licensed by FWC since 2002 and it is undisputed that his livelihood will be impacted by FWC’s proposed action. In Petitioner’s words, the financial impact would be “devastating”, possibly leading to bankruptcy. However, the extent of the impact was not quantified as Petitioner did not provide records of sales or profits from sales, or give an indication of his annual income earned from the sale of wildlife. At the conclusion of Petitioner’s testimony, the undersigned questioned Petitioner about the cause of inspection deficiencies at this facility in recent years: “HEARING OFFICER: You were here when Inspector Brown testified that in his opinion he doesn’t know whether you were unable or unwilling to comply with applicable FWC regulations. Do you agree with the notion that you are unwilling or unable to comply with those regulations? THE WITNESS: I had some, again, health issues early on. I’m past that now, and I think that I can continue on. Again, I was more of a part-time guy before. Now, again, I think I have to be full time until I get all this turned around. HEARING OFFICER: How do you plan to get it all turned around? THE WITNESS: Well, I will be at that farm every day making sure everything is done at this point. I have an excellent girl that – again, she also has a license, so she is more than capable of taking care of everything, but I will be there looking over her shoulder and that’s how I explained it to her when I hired her.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further Recommended that the final order suspend Petitioner’s licenses to Possess Class I, Class II, and Class III wildlife for exhibition or public sale and his game farm license for a period of six months, and thereafter, until such time as an on-site inspection of Petitioner’s facility reflects substantial compliance with all applicable FWC statutes and rules. DONE AND ENTERED this 1st day of February, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2016.
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 Whether the Petitioner is entitled to an award of Attorney Fees and Costs under the provisions of Section 57.111, Florida Statutes.
Findings Of Fact By Administrative Complaint dated September 3, 1997, the Department alleged that Donald J. Beck (Beck) was incompetent or negligent in his practice of veterinary medicine under Section 474.214 (1)(r), Florida Statutes. The Administrative Complaint further alleged that the Respondent violated Sections 474.214(1)(f) and 455.241(1), Florida Statutes, by failing to furnish medical and examination records in a timely manner. A formal hearing was conducted on January 20, 1999. At the close of the Department's case presentation during the hearing on the Administrative Complaint, Beck moved to have the case dismissed. The motion to dismiss was granted as to the alleged violations related to medical and examination records, and was denied as to the alleged incompetent or negligent practice of veterinary medicine. The factual allegations in the Administrative Complaint involved two dogs boarded at a combination animal clinic and boarding facility identified as "Animal Hospital Hyde Park" in Tampa, Florida. The Animal Hospital Hyde Park facility was owned and operated by another veterinarian not a party to this proceeding. The two dogs were boarded at the facility for a period of months. The owners of the dogs had minimal contact with the animals during the boarding period. During the boarding period, the owners had informed the facility staff that the dogs were overweight and that the animals should be placed on restricted diets. After being notified by the facility owner that the facility was being closed, the owners retrieved the dogs and were apparently unhappy with the condition of the animals. The dog owners took the animals to another veterinarian, Dr. Jerry Alan Greene, who examined the dogs on August 13, 1996. The dog owners subsequently filed a complaint with the Department, which investigated the case. As part of the investigation, the Department interviewed witnesses including Dr. Greene and a second treating veterinarian. The Department reviewed medical records and photographs related to the animals. The Department also obtained an opinion from Dr. Sheldon Pinkerton, a third veterinarian, who opined that based on his review of the investigative information, Dr. Beck was in violation of Section 474.214(r), Florida Statutes, as well as other statutes and administrative rules. The investigative information and Dr. Pinkerton's opinion were submitted to the Board of Veterinary Medicine's Probable Cause Panel. Based on their review of the information, the Panel determined on August 28, 1997, that there was probable cause to charge Beck with violation of Section 474.214(r) and (f), Florida Statutes. Based on the Probable Cause Panel determination, the Department filed the Administrative Complaint dated September 3, 1997. During the formal hearing on the disciplinary case, the Department presented the testimony of Dr. Jerry Alan Greene, the veterinarian who tested and examined the relevant animals on August 13, 1996. According to Dr. Greene's testimony there was evidence, based on test results, that the animals had hookworms. Based on his examination, Dr. Greene further diagnosed one animal with an ear infection and opined that the animal was "grossly underweight." The other animal was still overweight and had some type of "foot problem." Beck presented the testimony of Dr. Richard Goldston at the formal disciplinary hearing. Dr. Goldston based his testimony on a review of photographs taken of the animals. Dr. Goldston opined that the "underweight" dog, although thin, was healthy. Dr. Goldston also opined that the other animal's "foot problem" was an "acral lick granuloma," which resulted from excessive licking of the area. Based on review of the testimony of the two expert witnesses presented at the formal hearing, the opinion of Dr. Goldston was credited. At the hearing, the Department offered testimony to suggest that Beck had a duty to provide medical care to all of the animals boarded at the facility. The testimony was not persuasive. The evidence presented at the hearing failed to establish that Beck was responsible for the medical needs of all the animals boarded at the Animal Hospital Hyde Park. By a Recommended Order dated March 29, 1999, the Administrative Law Judge recommended that the complaint against Beck be dismissed. By Final Order filed September 16, 1999, the Department of Business and Professional Regulation, Board of Veterinary Medicine adopted the Recommended Order and dismissed the Administrative Complaint.
The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether Respondent's license to practice veterinary medicine should be revoked or suspended for alleged violation 474.14(1), 474.15, and 474.31 (1), and (6), Florida Statutes. This case was consolidated by order of the Hearing Officer issued December 5, 1975, with Florida Board of Veterinary Medicine vs. Harold M. McGee, D.V.M., Docket No. 751926 because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel at his own expense to represent him. He elected to appear in his own behalf. He was then advised of his rights under the Administrative Procedure Act, including the right to testify in his own behalf, if he so desired. He indicated that he understood these rights.
Findings Of Fact Respondent was licensed by the Board of Veterinary Medicine on July 27, 1975 and was not licensed on March 4, 1975. On March 4, 1975 Respondent was employed by Dr. Harold M. McGee, D.V.M., at his place of business located at 3520 Northwest 36th Street, Miami, Florida. On March 4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Dr. McGee's clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for Dr. McGee. Without disclosing their purpose, Correa informed the receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Respondent in the treatment room. He checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Dr. McGee's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Respondent signed Dr. McGee's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at the clinic, they did not see Dr. McGee on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Dr. McGee was in the back office at the time in question suffering from a headache and had asked his receptionist to have Respondent give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Respondent's lack of a Florida license, Dr. McGee did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent always checked with Dr. McGee on a diagnosis and the latter would then prescribe the proper treatment. Respondent followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Dr. McGee as to the treatment that was thereafter performed. Respondent was not licensed by the Florida Board of Veterinary Medicine until July 27, 1975. Dr. McGee professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Respondent testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Respondent to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2). Respondent was head of the Veterinary Services of the Cuban rebel army at the time he came to the United States. He has been a veterinarian since 1948. He is active in the Cuban community of Miami and enjoys a good reputation for truth and veracity in the community (Testimony of Mayo, Reboso).
Recommendation That the charges against Cristobal M. Gonzalez Mayo, D.V.M., be dismissed. DONE and ENTERED day of February, 1976 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 East College Avenue P.O. Box 1752 Tallahassee, Florida Dr. Cristobal M. Gonzalez Mayo 971-A Southwest 8th Street Miami, Florida 33130
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)
The Issue Whether Petitioner’s application for renewal of his license to possess class III wildlife for exhibition or public sale (class III license) should be granted.
Findings Of Fact Respondent is a state agency authorized to exercise the executive and regulatory powers of the state of Florida with respect to wild animal life and fresh water aquatic life. See Fla. Const. Art. IV, § 9. 1 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. Petitioner holds a class III license which authorizes him to possess class III wildlife for exhibition or sale.2 Petitioner is the owner and license holder authorized to maintain a facility called Iguanaland, located in Punta Gorda, Florida. Iguanaland is a reptile facility that has as its goal the preservation of certain species and the conservation of endangered species. Petitioner is a respected member of a community of individuals who keep, and make serious efforts to breed, reptiles in captivity. He is widely known for holding one of the largest collection of reptiles in the United States. Petitioner’s facility has been successful with reproducing reptile species, adding to the diversity within the captive reptile population. Petitioner partakes in cooperative trading with zoological institutions. He helps to facilitate research on hard-to-come-by reptilians. His facility greatly contributes to the preservation of endangered reptile species. It is the only facility in the United States that has the capacity to successfully breed reptilians on a large scale. Petitioner maintains temporary living quarters on the facility’s grounds to host graduate students conducting research. Petitioner has never been disciplined by Respondent; he has not received a written or verbal warning. Respondent’s witness, Investigator O’Horo, testified that, “anything that’s still caged [at Petitioner’s facility] is being taken care of” and that he has been “impressed with the husbandry[3] aspect.” Petitioner maintains several species of reptilians at Iguanaland, including lizards, snakes, and chelonians. 2 Class I wildlife is wildlife which, because of its nature, habits, or status, shall not be possessed as a personal pet; class II wildlife is wildlife considered to present a real or potential threat to human safety; class III wildlife is all other wildlife not included in Class I or Class II. See § 379.3762(2), Fla. Stat. 3 “Husbandry” generally refers to the care, food, and shelter that is provided to the reptilians. Monitor lizards include a wide class of lizard species. Monitor lizards, in general, are primarily carnivores, eating mostly animal matter. They are typically between one and nine feet long. In July 2020, Petitioner had possession of three crocodile monitor lizards. Crocodile monitor lizards are an uncommon type of monitor lizard. They are known for having extremely long tails relative to their body length and uniquely shaped heads. Petitioner commissioned a construction worker to build an enclosure for the crocodile monitor lizards, in accordance with FWC requirements. This included a request to fortify the bottom of the crocodile monitor lizards’ wired enclosure with cement. Unfortunately, the construction worker failed to cement a space of approximately one foot along the barrier of the enclosure. Petitioner testified that he inspected the enclosure several times, and failed to notice the gap. Investigator O’Horo also inspected the enclosure and did not notice the gap. In August 2020, two of Petitioner’s three crocodile monitor lizards escaped from Iguanaland, through the opening in the enclosure. One of the two escaped crocodile monitor lizards injured two pet dogs at a neighboring property. The crocodile monitor lizard was euthanized to prevent further issue. For the period of June 2016 through November 2020, FWC staff members received reports of sightings of over 100 non-native tegus and other reptilians within a half-mile radius of Petitioner’s facility. Although Respondent proved that non-native tegus and other reptilians were spotted and captured in the vicinity surrounding Iguanaland, it offered no competent, substantial evidence that the large population of tegus and other reptilians in the area surrounding Petitioner’s facility was caused by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order approving Petitioner’s renewal application, subject to such reasonable terms and conditions as FWC deems appropriate. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Michael P. Haymans, Esquire Michael P. Haymans Attorney at Law, P.A. 215 West Olympia Avenue Punta Gorda, Florida 33950 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether statements issued by the Respondent's employees constitute unpromulgated rules in violation of Section 120.54(1)(a), Florida Statutes (2007). Whether Florida Administrative Code Proposed Rule 5C- 27.001, incorporating a form is an invalid exercise of delegated legislative authority.
Findings Of Fact The following are the stipulated facts (verbatim) as agreed by the parties: In November and December 2005, Division of Animal Industry inspectors conducted inspections of various pet facilities located throughout Florida and found 11 violations regarding OCVIs. Dr. Thomas J. Holt, D.V.M., State Veterinarian and Director of Animal Industry, is signatory on a July 2006 Memorandum directed to "All Florida Veterinarians," which purports to provide "guidelines and reminders" to veterinarians regarding the issuance of OCVIs pursuant to Section 828.29, Florida Statutes. The memorandum is attached as Exhibit A. Respondent does not license or regulate veterinarians in Florida. Respondent does not maintain a database of veterinarians licensed or located in Florida. The United States Department of Agriculture (USDA) maintains a database of USDA-accredited veterinarians. The July 6, 2006, memorandum was provided by Respondent to the United States Department of Agriculture. Respondent asked for the assistance of the United States Department of Agriculture to distribute the July 6, 2006, memorandum to all USDA-accredited veterinarians located in Florida. The July 6, 2006 memorandum was challenged by Petitioners as an unpromulgated rule on April 2, 2007. The Respondent agency published a Notice of Proposed Rule in the Florida Administrative Weekly on July 6, 2007, to adopt the Official Certificate of Veterinary Inspection for Intrastate Sale of Dog or Cat (OCVI form) as a rule. On May 15, 2007, the Department conducted a "Pet Certification Rules Workshop" regarding proposed changes to the OCVI. Current form DACS-09085, Official Certificate of Veterinary Inspections for Sale of Dog or Cat, was adopted by Florida Administrative Code Rule 5C-24.003, in 1999. This rule is currently in effect. A statement of Department Employee Diane Fuchs was recorded, and such statement is attached hereto as Exhibit B. None of the Petitioners have filed complaints with Respondent concerning any of the allegations contained in Petitioners' Request for Administrative Hearing or Amended Request for Administrative Hearing. The following facts are from the materials noted above: The "Exhibit A" memorandum referenced above that was signed by the Department's State Veterinarian/Director of the Division of Animal Industry stated on its face, "This fax is being sent by the Florida Veterinary Medical Association at the request of the State Veterinarians Office." The memorandum provided, in pertinent part: TO: All Florida Veterinarians SUBJECT: OCVI for Sale of a Dog or Cat Dear Florida Veterinarian: Recent audits of Official Certificate of Veterinary Inspection's (OCVI) for Sale of a Dog or Cat by the Division of Animal Industry (DAI), Florida Department of Agriculture and Consumer Service (FDACS) shows an increasing number of violations related to the use and issuance of such certificates by veterinarians. Each violation compromises the integrity of the certificate. Previously violations were handled via personal communication and/or written correspondence with the veterinarian outlining the violation and recommended actions on how to correct them. Beginning July 1, 2006, the DAI will implement enforcement of such violations via Administrative Fine Procedure. For this reason, we are reminding veterinarians of the seriousness of this issue and are providing the following guidelines and reminders: Veterinarians are responsible for the security and proposed use of all OCVI's and must take reasonable care to prevent misuse of them. Reasonable care means that the veterinarian must retain all copies of the OCVI until he or she has inspected the animal and fully completed and signed the document(s). Incomplete, blank, or unsigned OCVI books or certificates cannot be sold to, or be in the possession of, a pet seller whether they are a breeder, broker, or retail pet store. Possession by a seller of incomplete or unsigned OCVI or of OCVI books compromises the integrity and security of the documents for which the veterinarian is responsible. The issuing veterinarian's statement certifies that the vaccines, anthelmintics, and diagnostic tests were administered by or under the direction of the issuing veterinarian. The manufacturer, type, lot #, expiration date, and date of administration must be detailed in the appropriate blocks of all OCVI. Vaccinations and/or anthelmintics administered by anyone other than the issuing veterinarian must be confirmed and documented before listing them on the OCVI. "Vaccines given by breeder" is not an acceptable entry unless the vaccinations were administered by or under the direction of the issuing veterinarian who has personal knowledge that such vaccines were actually administered to the animal identified on the OCVI. OCVI should not be issued for a dog or cat that has been found to have internal or external parasites, excluding fleas and ticks. This includes, but is not limited to, coccidian and/or ear mites. The dispensing of medicine to be administered by the owner for treatment is not sufficient for the veterinarian to issue the OCVI. Such animals must be treated and be negative before the sale can occur. The statement attributed to Diana Fuchs (noted as Exhibit B above) was: You're correct because the Veterinary Practice Act seeks supervision and it clearly defines supervision. The pet law does not state "supervision," it says "direction." It doesn't say whether it's direct supervision, it says "direction." As an employer, you can direct an employee to do something. By and through the rule making process previously described the Respondent sought to promulgate a rule (5C-27.001) that by reference adopts and incorporates form DACS-09085, the OCVI for Intrastate Sale of Dog or Cat Revised in July 2007. The OCVI form provides, in part: ISSUING VETERINARIAN'S CERTIFICATION: I hereby certify that the described animal was examined by me on the date shown; that the vaccines, anthelmintics, and diagnostic tests indicated herein, were administered by me, or under my direction; said animal is found to be healthy in that to the best of my knowledge it exhibits no sign of contagious or infectious diseases and has no evidence of internal or external parasites, including coccidiosis and ear mites, but excluding fleas and ticks; and to the best of my knowledge the animal has not been exposed to rabies, nor did the animal originate from an area under a quarantine for rabies. The Petitioner's First Amended Request for Administrative Hearing provided: This petition is filed on behalf of The Humane Society of the United States ("The HSUS"). The HSUS is a nonprofit animal protection organization headquartered in Washington, (sic)DC. The HSUS Southeastern Regional Office is at 1624 Metropolitan Circle, Suite B Tallahassee, FL 32308. The HSUS is the largest animal protection organization in the United States, representing over 9.5 million members and constituents, including more than 500,000 members and constituents residing in Florida. For decades the HSUS has been actively involved in educating the general public regarding the persistent health and behavioral problems that are common among puppies marketed by retail pet stores. This suit is bought [sic] on behalf of the HSUS and its Florida members. The HSUS investigates puppy mill and pet store cruelty complaints and offers its members, constituents and the general public guidance and advice as to how to select healthy, well bred puppies. By ensuring that puppies sold in retail pet stores actually receive the statutorily mandated vaccines and antelmintics, the health and welfare of puppies will be improved. Further, by eliminating from sale puppies that harbor potentially dangerous zoonotic diseases, not only is the public health protected but breeding facilities where the puppies originate and the pet stores that market the puppies have incentive to improve the often overcrowded and unsanitary conditions to which causes the puppies to be infested with internal parasites. A recent email survey revealed that more than 70 HSUS constituents have purchased puppies from Florida pet stores. This petition is also filed on behalf of Richard and Sharon Chambers, 5920 Our Robbies Rd., Jupiter, FL 33458. The Chambers purchased two puppies from Precious Puppy in Jupiter, Florida, and were provided OCVI's, signed by Dr. Dale Mitchell, DVM, but stamped with the statement "Original Vaccines Done by Breeder or Breeder's Veterinarian." Accordingly, the Chambers cannot verify if the vaccines indicated on the health certificate, and "certified" by Dr. Mitchell, were actually administered to their puppies. One of the puppies developed kennel cough, in spite of supposedly having been vaccinated against it. The kennel cough progressed to pneumonia and required emergency veterinary care. This petition is also filed on behalf of Miriam Barkley, who lives at 600 SW 13th Avenue #7, Ft. Lauderdale, FL 33312. Ms. Barkley purchased a Yellow Labrador Retriever puppy from Puppy Palace in Hollywood, Florida and was provided an OCVI. At 13 weeks of age the puppy has bilateral hip dysplasia with severe right sided coxal subluxation and will require thousands of dollars worth of surgery, if she is even a candidate for the surgery. Otherwise she must be euthanized. In spite of the requirement that each pet dealer provide consumers with a certificate of veterinary inspection signed by a veterinarian that certifies that "the animal was found to have been healthy at the time of the veterinary examination" the OCVI she was provided contains no such certification. This petition is also filed on behalf of Sheree Thomas, 874 Hibiscus Street, Boca Raton, FL 33486. Ms. Thomas was sold a puppy by Puppy Palace of Boynton Beach, and was given an OCVI upon which the attesting veterinarian's signature had been forged. Her puppy contracted distemper, a contagious disease for which the puppy had supposedly been vaccinated. Petitioner Connie Crews purchased two puppies from Puppy Palace in Hollywood, FL. One puppy, Trinity, suffered kennel cough that developed into severe bronchial pneumonia for which she was hospitalized. Petitioner Connie Crews incurred more than $4,000 in veterinary expenses saving Trinity's life. The other puppy, Neo, also had kennel cough, and suffers a bone defect in both shoulders. Petitioner Crews was provided an OCVI with each puppy, indicating that the puppies had been vaccinated for kennel cough. However, the OCVIs were not signed by the attesting veterinarian, Dr. William Rasberry, DVM, but rather had been stamped with a signature stamp which had been provided to the pet store. For purposes of this order the foregoing allegations have been deemed true or accurate. No evidence or stipulations of fact regarding the Petitioners was presented.
