The Issue The issue in this proceeding concerns whether Leonard Mattox, the Petitioner, or his business, Sasquatch Park, is qualified under the provisions of Rule 39-6.0022(5)(c)1, Florida Administrative Code, to engage in the husbandry of a cougar (felis concolor), in terms of the experience requirement of that rule.
Findings Of Fact The Petitioner, Leonard M. Mattox, doing business as Sasquatch Park, operates a captive wildlife facility, open to the public, in Okaloosa County, Florida, near the City of Crestview. The facility is open to the public between the hours of 9:30 a.m. and 4:00 p.m., and the Petitioner holds a Class II permit authorizing possession of macaques, a primate. Class II wildlife species are animals which have the potential of posing some degree of danger to human beings. The permits for possession of such animals are issued by the Commission. The Petitioner's Class II permit authorizing the possession of a macaque was issued on August 19, 1988. On April 19, 1989, the Petitioner applied to the Commission to upgrade that permit to include cougars (felis concolor), also an animal on the Class II wildlife species list, delineated in Rule 39-6.002, Florida Administrative Code. Rule 39-6.0011, Florida Administrative Code, then required that an applicant for a Class II permit must possess three-years minimum experience in the husbandry of the species for which the permit was sought. Subsequent to that application, the Commission changed the experience requirement by enacting Rule 39- 6.0022(5)(c)1 on July 1, 1990. That provision defines experience requirement as being no less than one year of substantial, practical experience and consisting of not less than 1,000 hours in the care, feeding, and handling of the species for which the permit is sought. Petitioner concedes that he does not possess the required 12 months or 1,000 hours of experience. In fact, he testified that although he has extensive experience in the care and husbandry of numerous exotic wildlife species, including macaques, a Class II species, he has no formal experience in the husbandry of cougars. Rather, the Petitioner is relying on the experience of Mr. Bobby Spencer and Ms. Pauline Redding, both of whom have owned and possessed and cared for cougars for approximately five years. The cougar that the Petitioner seeks to own and exhibit in his zoo is "Micah", presently owned by Mr. Spencer. Mr. Spencer wishes to donate Micah to the Petitioner's zoo in order to give the cougar a safe, comfortable, appropriate home because he can longer keep the cougar. His grandson is allergic to the cougar's fur and exhibits a violent reaction to being in the proximity of the cougar. The Petitioner seeks to establish that his facility is appropriately qualified to maintain and care for the cougar within the requirements of the above rule by retaining both Mr. Spencer and Ms. Redding as "curators". It is undisputed that both of those individuals have more than the required experience in the husbandry of cougars. The Petitioner has proposed, with the agreement of both Mr. Spencer and Ms. Redding, that they will make routine, frequent and unannounced visits to the cougar's enclosure to ensure that the cougar is being appropriately cared for and that the public viewing the cougar will not be at risk. Both Mr. Spencer and Ms. Redding will be available on an "on-call" basis at any hour of the day or night, in addition to making routine unannounced visits to the enclosure. Both Mr. Spencer and Ms. Redding possess Class II permits from the Commission to possess cougars as personal pets. They keep their animals at Commission- approved facilities at their residences, although they do not exhibit them to the general public. Mr. Spencer resides approximately 27 miles from the Petitioner's facility, and Ms. Redding resides approximately five miles away and can be at the Petitioner's facility within approximately five minutes. Both are employed full-time, however. Mr. Spencer is a real estate salesman, and Ms. Redding is a full-time receptionist and veterinarian's assistant employed with a veterinarian in Ft. Walton Beach, some 27 miles from the Petitioner's facility, during normal working hours. In addition to being experienced in the husbandry of a cougar, Ms. Redding is experienced in the care of many types of animals in her duties as a veterinarian's assistant, which include functioning as an anesthesiologist. The testimony of Captain Jerry Thomas of the Game and Fresh Water Fish Commission established that the Commission's two primary concerns are the safety of the public and the humane treatment of the animal in situations where a permit is sought for the possession and exhibition of a Class II wildlife species, such as a cougar. There is no dispute that the Sasquatch Facility exceeds the Commission's requirements for housing, possessing and exhibiting the cougar. In fact, the enclosure built specifically for this cougar exceeds the more stringent provisions in the Commission's rules for housing African lions. The facility was designed to comport with the rule requirements for housing a breeding pair of African lions. There is a personnel "stand off fence" to protect the public so that no member of the public can approach the cage. The cougar's enclosure itself is an eight-foot high, nine-gauge, chain-link wire enclosure with nine-gauge chain-link wire covering the top of it to prevent the cougar from scaling his enclosure. There are also drop gates installed in the facility to manage a cougar and isolate him, as needed, from one side or other of his enclosure and to prevent involuntary release. In the extremely unlikely event of involuntary release of the cougar, there is an eight-foot perimeter fence around the zoo's facility. This particular cougar, who is substantially overweight, would likely be unable to scale it. If for some reason he was able to scale that enclosure, the rural, wooded character of the area of the Sasquatch facility, which is sparsely populated, would minimize the likelihood of any risk to humans before the zoo personnel could tranquilize the cougar, apprehend him, and return him to the facility. The Petitioner is equipped with the proper equipment and trained personnel, who are capable of tranquilizing the cougar and returning him to the facility. Tranquilizer guns with the appropriate chemical dosage, as prescribed by a veterinarian for an animal such as a cougar, are maintained in readiness at the facility at all times. Thus, the Commission's interest in the safety of the public is well-served by the facility and the personnel it maintains to possess, exhibit and care for animals such as cougars. Concerning the issue of the humane treatment of the animal, the facility is equipped with an automatic watering device and a staff veterinarian, Dr. Hill, whose office and residence is in nearby Crestview, is on call on a 24-hour basis. In addition to Mr. Mattox and his wife, who live on the premises and are present every day, the Sasquatch facility has two other full-time employees during each regular working day. Additionally, there are volunteers assisting almost daily. Mr. Mattox himself has a Class I wildlife possession license and previously has been approved for a Class II permit authorizing the possession and exhibition of macaques at the facility. Although the individual care requirements for the two animals are different, macaques are also Class II wildlife species considered to pose a potential threat to humans. There is no question that with the experienced personnel maintained by the Sasquatch facility, the advice and oversight of Mr. Spencer and Ms. Redding, both of whom have years of experience in the husbandry of cougars, the required feeding, medical attention, watering, and general care of the cougar will be well-accomplished. In carrying out the intent of the rule, as it perceives it, to insure the safety of the public and the humane treatment of the animal involved, the Commission has interpreted the experience provision of the subject rule to mean that where the applicant for the permit represents an entity or business, as is involved herein, which will house the animal in question, the applicant himself or herself need not possess the required experience, so long as personnel employed by the entity housing the animal will have the requisite experience provided for in the rule. Since Mr. Mattox himself does not have the requisite experience, it must be determined whether personnel he proposes to have care for the cougar will have adequate experience in cougar husbandry to ensure that the Commission's two concerns, public safety and humane treatment of the cougar, are appropriately served. In this connection, the Commission in its testimony at hearing through its agency representative, espoused the policy view or interpretation of the experience rule to the effect that persons with requisite experience should be on duty at the subject facility on a "full-time basis" or at least four hours per day. The language of the rule, however, does not provide that such personnel should be on duty on a full-time basis nor does it define what "full-time" means in any event. It does not provide a time-period standard delineating when experienced personnel should be on hand. Thus, starting from the premise that, as the Commission concedes, the applicant himself need not have the requisite experience, so long as personnel are available to a facility who do have the requisite experience, an examination must be made of the evidence and findings accordingly made concerning how much care on a typical day is required for a cougar kept in such a facility as Sasquatch Park, in order to satisfy the Commission's espoused concern regarding the animal's welfare. That examination will, in turn, demonstrate whether the Commission's espoused policy interpretation of the above rule experience requirement, in terms of a minimum of four hours per day presence by experienced personnel on the premises, is a reasonable interpretation and application of that rule, since the plain language of the rule itself does not require full-time presence of experienced personnel nor any other such time standard. The applicant has established an employment relationship with Mr. Spencer, the present owner of the cougar, whereby he will be the curator for the cougar when it is moved to Sasquatch Park. Mr. Spencer is licensed by the Commission to possess and own the cougar as a pet. He has been the owner and curator of this particular cougar for approximately five years. Mr. Spencer has agreed to provide his services on a 24-hour, on- call basis. For the first month or two, he would be present at the facility on almost a daily basis in order to make sure that the cougar becomes accustomed to his new owner and surroundings and does not become distressed at the absence of Mr. Spencer, to whom he has become emotionally attached. Mr. Spencer established, through his unrefuted testimony, that the actual time needed to be spent with the cougar is a maximum of 30 minutes per day, with an average of 15 minutes per day being appropriate. Any more time spent with the cougar, in direct contact, does not benefit the cougar; and it, indeed, might be detrimental to his emotional health. Mr. Spencer has agreed to be present at the facility on an almost daily basis in order to minister to the needs of the cougar for food, water, companionship, and to insure that Mr. Mattox becomes skilled at caring for the cougar. Mr. Spencer cares very much for the cougar and is keenly concerned in seeing that the cougar has a new home which is most beneficial to his welfare. He has investigated several possibilities and determined that Sasquatch Park is the best place for his cougar. As curator for the cougar, he wants the cougar close enough to his residence so that he can help care for him; and he has testified that he will continue to do so until he feels comfortable in gradually turning over the cougar's care to Mr. Mattox. There is no dispute that Mr. Spencer has more than ample experience to comply with the mandate of the above-referenced rule. Pauline Redding is also licensed to engage in the husbandry of a cougar as a personal pet. She is the owner and curator of the brother of the cougar in question. She houses her cougar in an enclosure in the yard of her home. She typically leaves home during the day to go to her job, and the cougar is left unattended for that entire period of time every working day. That arrangement comports with the requirements of the rule under which Ms. Redding is licensed to maintain the cougar as a personal pet. There is not a licensed person on the premises with her cougar "full-time" nor any other required time period. Ms. Redding, too, is well qualified and experienced in terms of the requirements of the rule, and in a practical sense, to adequately care for the cougar. She only lives five minutes away from the Sasquatch facility and is able and committed to assist Sasquatch at all times in insuring proper care for the cougar. Her employment experience also provides additional qualifications for her to engage in the husbandry of a cougar. She is employed as a veterinarian's assistant, technician and anesthesiologist. There is no dispute that both these persons are well qualified in terms of experience in directly caring for cougars to render them "qualified curators" of the cougar in question if he is placed at the Sasquatch Park facility. The testimony of Mr. Spencer, as well as that of Ms. Redding and to some extent that of Captain Thomas, establishes that cougars do not require the full-time presence of personnel experienced in their care or even four hours per day. In fact, the unrefuted testimony indicates that 15 to 30 minutes per day is adequate and that cougars only feed once or, at most, twice a day and get along very well if fed once per day, such as in the evening. Predators, such as cougars, typically feed, by nature, in the early morning or in the late afternoon and are lethargic during the warmer parts of the day. It is critical that an adequate supply of water be maintained at all times, and Sasquatch Park has an automatic watering device available for the cougar. Although its present personnel do not have direct experience in caring for cougars, they are well able to recognize when an animal is in need of medical attention and a veterinarian, Dr. Hill, is on 24-hour call, as the staff veterinarian for the facility. In summary, the unrefuted evidence establishes that cougars, such as Micah, do not need experienced personnel on the premises in their presence for even four hours per day or substantially less than that. It has been established that in order to meet the Commission's concern regarding the animal's welfare, experienced personnel need only be readily available on an on-call basis to insure that the cougar is properly cared for and that during the initial few days or weeks of the cougar's tenure at the Sasquatch Park facility, experienced personnel, such as Ms. Redding or Mr. Spencer, have daily contact with the cougar to insure that he is adequately cared for and that the facility, its owner and employees are being adequately trained in the care of the animal. In fact, it has been demonstrated that any additional contact with the cougar is not necessary to its welfare and, indeed, might be detrimental to it. Both Mr. Spencer and Ms. Redding have agreed to this arrangement, and it is practically capable of being fulfilled, especially with regard to Ms. Redding, because she only lives five minutes away from the facility and can visit the cougar and oversee its welfare on almost a daily basis. It has been demonstrated that, with the curatorship arrangements made by the applicant with Ms. Redding and Mr. Spencer, coupled with the applicant's own experience in maintaining and possessing many types of exotic and potentially dangerous animals, the Commission's interest in insuring the health and welfare of the cougar in question will be served by placing it at Sasquatch Park and that these arrangements most closely correlate with the evidence of record which establishes the manner and type of care a cougar needs on a daily basis when confined in such a facility. In this regard, somewhat parenthetically, it is noteworthy that the Commission's representative, in testifying in support of a four-hour-per-day standard for having experienced cougar husbandry personnel on the premises, also testified that that four hours per day for one year really equated to what was required, in his view, to train Mr. Mattox and establish him as the possessor of 1,000 hours minimum experience in cougar husbandry at the end of a year. Thus, that espoused "standard" actually is not really functionally related to the cougar's welfare or the interest of public safety. Finally, in assessing the Commission's stated concerns, it should be considered whether the cougar's present situation is preferable to that offered by Sasquatch Park. In Mr. Spencer's home, the cougar lives in a residence in the middle of a city, with many other people residing around it. Sasquatch, on the other hand, offers a rural, wooded setting which is sparsely populated, which equates to greater public safety in the unlikely event the cougar should escape. In Mr. Spencer's home, no one has been present for at least 9-1/2 hours per day, during the years he has kept the cougar. At Sasquatch, Mr. and Ms. Mattox live on the premises and are present with their employees everyday. Although Mr. Spencer and Ms. Redding were licensed under a different rule which concerns the keeping of Class II animals as personal pets, in assessing the level of care supposed to be provided the cougar, it is noteworthy that they obtained their licenses with absolutely no experience or training in the care of cougars. Mr. Mattox, on the other hand, has a Class I license; and the Commission has previously approved him for a Class II permit to keep a macaque, also an animal posing a potential threat to humans. Mr. Mattox has had years of experience in the husbandry of many exotic species. His practical qualifications, versus those of Mr. Spencer and Ms. Redding, are certainly substantial. Further, Sasquatch Park is a modern facility; and all cages and animal areas meet or exceed Commission requirements in terms of the animals' welfare and the safety of the viewing public. There is a staff veterinarian, who is on call on a 24- hour-a-day basis. With the arrangement with Ms. Redding, there will also be a curator available for the cougar, who has training in the veterinary care of animals, in addition to Dr. Hill. It has clearly been demonstrated that the Commission's interest in terms of public safety and the welfare of the animal in question will be well-served by placing the cougar at Sasquatch Park. It is, thus, found that the Commission's interpretation of the rule and the manner it seeks to apply that interpretation to the instant factual situation, established by the unrefuted evidence, is not reasonably related to the public safety or to the type, level and manner of care which is required for the cougar's well being, which two considerations are, as shown by the Commission's own witness, the primary intent of the subject experience rule. That being the case, the espoused interpretation by the Commission's witness of what is meant by the experience requirement in the rule is not reasonably related to the proven intent and purpose of the rule.
Recommendation Having considered the foregoing findings of fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is therefore RECOMMENDED: That a Final Order be entered by the Respondent granting the application of the Petitioner, Leonard M. Mattox, for a Class II wildlife permit authorizing the possession and display of cougars at his Sasquatch Park facility. DONE and ENTERED this 13th day of November, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1990. APPENDIX Petitioner's Proposed Findings of Fact The Petitioner filed no separately stated findings of fact but rather, filed a memorandum containing factual and legal argument inseparably intertwined. Thus, no separately stated discreet findings of fact are available to be specifically ruled upon, although the subject matter raised in each of the paragraphs of the Petitioner's memorandum have been dealt with and addressed in this recommended order. Respondent's Proposed Findings of Fact Accepted Accepted Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as immaterial, inasmuch as the subject rule was amended during the pendency of this proceeding. See Turro v. DHRS, et al., 458 So.2d 345 (Fla. 1st DA 1984). Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter and in fact immaterial in light of the Commission's own interpretation of the meaning of the experience requirement of the subject rule. Accepted, but the first sentence is immaterial. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted, but the first sentence is immaterial and the proposed finding of fact is subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted only insofar as it demonstrates what the agency's interpretation of the subject experience requirement in the rule consists of, but otherwise subordinate to the Hearing Officer's findings of fact on the subject matter. COPIES FURNISHED: Colonel Robert H. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James Antista, Esq. General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 John C. Harrison, Esquire 12 Old Ferry Road Shalimar, FL 32579 James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600
The Issue The cause was initiated upon the filing of a Petition for Award of Attorney’s Fees and Costs, pursuant to Florida Statutes 57.111. A formal hearing was originally scheduled for Gainesville, Florida, however, pursuant to agreement of the parties it was dispensed with. The parties stipulated to the record to be considered in this proceeding, agreeing upon exhibits and upon a time period for submission of proposed final orders. The appearances were as follows.
Findings Of Fact The Petitioner, Samy H. Helmy, was a licensed veterinarian in the State of Florida at all times pertinent hereto. The license was suspended by Final Order of the Board of Veterinary Medicine on or about August 3, 1990 and the suspension was upheld on appeal. That Final Order became a Final Decision upon the Court’s Mandate and Notice issued on December 26, 1991. On or about February 21, 1992 Mr. Henry Scheid, in his capacity as an investigator for the Department of Business and Professional Regulation, Board of Veterinary Medicine, (DBPR) set up a “sting operation” in which he attempted to apprehend the Petitioner in activities which could be construed as unlawfully practicing veterinary medicine with a suspended license. Mr. Scheid’s investigative report is an exhibit by stipulation in this proceeding. Mr. Scheid acknowledges in this report that another person, Dr. S. Strahler was present on the Petitioner’s veterinarian practice premises at the time he made his investigation. Mr. Scheid also recounts in his investigative report that although the Petitioner examined the animal which was involved in the sting operation, when it became necessary to give an injection to the animal, an employee of the veterinary practice who proved to be Dr. Strahler, was called in to actually perform the injection. It does appear that the investigator, Mr. Scheid, was aware that a licensed veterinarian was practicing on the premises. He would thus seem to have been aware that Dr. Strahler may have been in a position to supervise Dr. Helmy’s practice under his suspended license. However, there is also contained in the investigative report a statement by the investigator to the effect that he interviewed Dr. Strahler. Dr. Strahler indicated that he had only worked on Dr. Helmy’s premises for several days in February 1992 and that indeed, Dr. Helmy had performed surgeries without Dr. Strahler’s assistance, which could reasonably be interpreted by Mr. Scheid that Dr. Helmy might have been performing veterinary practice in an unsupervised way. In the investigator’s report, page 10, reference is made to his interview with RFS (Dr. Strahler) as follows: “On February 27, 1992 investigator made phone contact with RFS. He advised he had only worked for subject; February 14, 1992, Friday, all day; February 15, 1992, Saturday, one-half day; and February 21, 1992, Friday, all day. During questioning RFS, with hesitation, did advise that subject was conducting surgeries, with or without RFS assistance. Further advised, he would cooperate as the last day he worked subject, he found out that subject’s license was suspended. After contacting investigator Sowder, Marion County Sheriff’s Office, a meeting with State Attorney for a sworn statement was set for March 4, 1992, at 2:00 p.m.” There are a number of interviews of animal owners who took their animals to Dr. Helmy, for examination and/or treatment. Descriptions of these interviews are recounted in the investigator’s report. The results of those interviews indicate that Dr. Helmy, was performing veterinary practice in terms of diagnosing, taking blood samples, and performing various aspects of treatment. (See the Respondent’s proposed Findings of Fact numbers six through sixteen, adopted here by reference). Although Dr. Helmy, could perform veterinary practice. under the statute cited below, so long as he was supervised by a duly licensed veterinarian in good standing with the Board, the interview of Dr. Strahler (“RFS”) indicates that indeed he may have been practicing without any supervision on some occasions. The important point is that the investigator had sufficient investigative facts to have a good faith belief that he had discovered the Petitioner, practicing with a suspended license, without proper supervision by a duly licensed veterinarian on the premises. He could thus reasonable conclude then that the Petitioner was not in compliance with the statute concerning supervision cited below. After his visits to the premises and contact with law enforcement authorities, Mr. Scheid filed the subject report on approximately April 19, 1992. Thereafter, the investigation apparently remained an open or active investigation, but as far as the evidence in this case shows, no administrative complaint was filed for a substantial period of time. In fact, on September 10, 1993 Nancy M. Snurkowski as chief attorney for the agency signed a document called a “Closing Order” on behalf of George Stuart, Secretary of the Department. That Closing Order indicates that the complainant, the agency, had alleged that the subject, Dr. Helmy, had violated Sections 474.213(1)(f) and 474.215(3), Florida Statutes (1991) for operating a veterinary establishment when the responsible veterinarian’s license had been suspended, or by knowingly employing an unlicensed person or persons in the practice of veterinary medicine. The Closing Order implies that the investigation substantiated the complaint in that the subject was a veterinary establishment operated by Dr. Helmy when his license to practice had been suspended. The Closing Order accounts that he continued to practice despite that suspension. The Closing Order states that he continued to practice despite that suspension. The Closing Order also states that: “[T]he establishment now lists Robert F. Strahler, DVM as a responsible veterinarian. Robert F. Strahler, DVM is a Florida-licensed veterinarian in good standing with an active license. He acquired the facility and premises permit number of VE0002026 on August 27, 1992. The previous permit number VE0001793 is no longer valid.” “The law: “Based on the foregoing, probable cause does exist at this time to believe that the subject was in operation while its responsible veterinarian’s license was suspended and it employed unlicensed individuals in the practice of veterinary medicine. However, since the unlicensed activity has been stopped and the responsible veterinarian holds a valid active license in good standing, this case will be closed.” Thus on September 16, 1993 apparently the agency elected to terminate the prosecution with this “Closing Order”. The agency however, does not admit in that Closing Order that probable cause to believe that unauthorized veterinary practice done by the Petitioner did not exist. Rather, it merely indicates that, since the investigation was commenced, Dr. Strahler had become a licensed supervising veterinarian, or a “responsible veterinarian” in good standing for the establishment. Therefore the violation previously believed to have been found by Mr. Scheid had been alleviated at that point. That Closing Order appears to have been merely the determination of the investigation at that point. The evidence before the Administrative Law Judge does not actually indicate that a formal administrative complaint, based upon a probable cause finding by the Board, had been made at that time or previously. Nevertheless, in a probable cause panel meeting of November 30, 1993 (by telephone conference call) (the transcript of which is stipulated into evidence in this proceeding as Exhibit 3) probable cause to file an proceed on the administrative complaint which gave rise to this case was found by the Board of Veterinary Medicine. This may seem a harsh determination, since the Chief Attorney with the Board had recommended terminating the prosecution prior to that probable cause finding. However, the investigative report and related documents indicate that there was adequate reason to believe that unauthorized veterinary practice by Dr. Helmy had been conducted on the premises on and around the time when Mr. Scheid made his visitor visits to the premises and interviews of customers and others. Thereafter, prosecution of the administrative complaint proceeded, (albeit slowly). Thus the Board litigated this case in 1993 until 1996. There is no question with attorney’s fees and costs were incurred by the Respondent (Dr. Helmy) in that administrative complaint case during that time. In fact, there is no dispute about the reasonableness of the fees and costs claimed in this proceeding. After attempting to conduct a hearing, but after at least one continuance, and before the case proceeded to formal hearing, the complaint was voluntarily dismissed by the prosecuting agency on June 5, 1996. Dr. Helmy made no admissions or agreements at any time to prompt the Department of file the motion for dismissal on the basis of a negotiated settlement. A related criminal case was proceeding during 1992 through 1994 in the Fifth Judicial Circuit for Marion County Florida. Dr. Helmy was being prosecuted by the State based upon the same set of factual circumstances developed by Investigator Scheid. A Motion to Dismiss was filed by defense counsel in that case and the Circuit Court granted that motion based upon an undisputed set of facts which are the same underlying facts that gave rise to the administrative complaint in the formal proceeding underlying this attorney’s fee case. The circuit judge in that proceeding dismissed the criminal case against Dr. Helmy on January 27, 1995, finding that Dr. Helmy was providing supporting assistance under the supervision of responsible, duly- licensed veterinarian, who acted as a responsible veterinarian as defined by Chapter 474 Florida Statutes. The Circuit Judge found that the Petitioner’s actions at the times pertinent to the criminal proceeding and the administrative prosecution were lawful since they were done under the supervision of a duly- licensed, active practicing veterinarian. The Administrative Law Judge ruled upon the Motion to Dismiss, and a subsequent motion, which raised the issues of collateral estoppel Res Judicata made by Dr. Helmy’s attorney in the formal proceeding underlying this attorney’s fee case. It was thus determined that the principals of collateral estopped and Res Judicata did not apply due to lack of mutuality of parties, etc. Accordingly, the administrative proceeding continued to remain active for sometime until the agency, on its own motion, voluntarily dismissed the matter on June 5, 1996. It is true as Petitioner contends, that a deputy sheriff from Marion County, as well as Mr. Scheid, testified by deposition that their opinions concerning Dr. Helmy’s guilt of unauthorized practice of veterinary medicine would be different if they assumed that his actions were performed under the immediate supervision of a licensed veterinarian. Dr. Gary Ellison, an expert witness for the Department in the Helmy case acknowledged, in his deposition, essentially the same thing that if “everything in the complaint” had been done under the immediate supervision of a licensed veterinarian then Dr. Helmy would not have broken the law. The fact remains, however, that at the time the investigation was commenced and Mr. Scheid conducted his interviews and conducted his operation on the then Respondent, Dr. Helmy premises, he had a reasonable belief that a violation had taken place. His conversation with Dr. Strahler himself could give him a good-faith belief that Dr. Strahler indeed did not truly supervise Dr. Helmy. Thus, the Board, at the time probable cause was found in the administrative complaint was filed, had a reasonable basis in fact and in law to proceed against Dr. Helmy, even if it was later determined that in fact, his practice on those premises had been lawful. While it may seem unduly harsh for the Board to find probable cause after its chief attorney had recommended closing of the investigation, the fact remains that, at the time probable cause was found there was substantial justification for the Board to believe that unauthorized veterinary practice had been conducted by the Petitioner on the premises. The language of the “Closing Order” does not obviate such a finding. Finance evidence into this proceeding in the form of Dr. Helmy’s tax returns for 1993 and 1994, as well as other evidence (see Exhibit 12) show that the Petitioner does not have a net worth of more than $2,000,000. The evidence, in its totality also shows that Dr. Helmy was operating a sole proprietorship of a professional practice dispensing veterinary services, at “Highway 200 Animal Hospital” at the time of the initiation of the Board’s action. This is documented in the investigative report and by the registration certificate for the veterinary establishment included in the record of this case as stipulated Exhibit 12. In fact, Dr. Helmy had entered into a business lease for the premises where he located to Highway 200 Animal Hospital with the lease specifying that the premises were to be occupied for a veterinary office, and the lease beginning June 15, 1990 and continuing through June 14, 1995. Thus, at all times pertinent hereto, Dr. Helmy had a lease for a business establishment operating as a veterinary practice from 1990 through 1995. His veterinary practice was not incorporated nor was it a partnership. It can only be inferred from the evidence available that it was a sole proprietorship of Dr. Helmy.
Recommendation Accordingly, having considered the foregoing findings of fact and conclusions of law, the preponderant evidence of record and pleadings and arguments of the parties, it is therefore ORDERED that the petition of Samy Helmy, D.V.M. is denied.DONE AND ORDERED this 6th day of January, 1997, at Tallahassee, Florida. COPIES FURNISHED: Robert A. Rush, Esquire 426 N.E. First Street Gainesville, Florida 32601 James E. Manning, Esquire Department of Business and Professional Regulation P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997. 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Susan Foster Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case concerns whether the Respondent violated Sections and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following: two pig carcasses, one cow head, singed cow feet, beef lungs, and goat tripe. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following: goat feet (hide on), goat intestines, goat tripe, and beef lungs. None of the products bore marks of inspection, nor were they marked as "Not for Sale." The goat feet and beef lungs were adulterated with ingesta and were generally dirty. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993; Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May 1994.
The Issue The issue to be determined in this case is whether the Petitioner, Kimberly Wysong, is entitled to approval of her application to add authorization for the family giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale.
Findings Of Fact The Parties The Petitioner currently holds a license to handle certain Class I and/or Class II animals, e.g., Class I baboons and Class II primates. She is currently employed by Jerry Holly, and along with other full-time and part-time employees, takes care of a number of exotic animals. The Agency is responsible for determining if applicants meet the criteria for issuance of a license, permit or other authorization to possess giraffidae under Florida Administrative Code Rules 68A-6.002(3), 68A-6.0011 and 68A-6.022. The Application On January 25, 2017, the Petitioner wrote to the Agency requesting to add giraffidae to her license. The application included two letters of recommendation and a spreadsheet detailing 1,003 hours spent working with a giraffe owned by Rhudy Holly. The information that the Petitioner sent to the Agency is the type of information she and others in her industry typically submit when requesting authorization to handle other animals. In response to a request for additional information, the Petitioner provided clarification of her hours and a copy of her current license. The spreadsheet documented hours spent with the giraffe between October 19, 2015, and January 23, 2017. The documented time averaged six hours per day and showed that the time was spent doing a combination of enrichment, cleaning, husbandry/handling, and feeding. The Petitioner testified that she noted her hours on a daily basis and then entered the hours into an Excel spreadsheet at the end of each week. For the first two weeks, the Petitioner started working with the giraffe under the supervision of its owner, Rhudy Holly. Mr. Holly has had his license to handle giraffes for at least five years and started working with them around 2007. Mr. Holly taught the Petitioner how to take care of the giraffe. He went over the basics until he was comfortable that she understood the giraffe’s behavior and mannerisms and she could safely handle the giraffe. He checked on her progress periodically. He also has an employee who works with the giraffe who was also available to the Petitioner for any questions or help with the giraffe. The Petitioner described a typical day working with the giraffe. In the mornings, she spent about two and a half hours cleaning the feed area, then gathering and loading fresh feed. Cleaning the feed area requires shifting the giraffe out of the barn to his outdoor enclosure. Coaxing the giraffe to leave the barn and go outside can take up to 45 minutes because the giraffe is a shy and skittish animal and cannot be rushed. Once the giraffe is outside, the Petitioner cleans the feed area including his troth and buckets and then refills them. She then coaxes the giraffe to come back into the barn using cut branches (“browses”), romaine lettuce or various fruits. Mr. Holly testified that two and a half hours was typical for these activities when you are learning how to handle and take care of the giraffe. At midday, the Petitioner returned for about two hours to clean the feed area of the barn again and also to pressure wash the barn. Mr. Holly testified that the barn is large and two hours was not an unusual amount of time to spend on these activities. In the afternoon, the Petitioner returned for about one and a half hours to clean and shift the giraffe back into the barn. Each visit included enrichment. Enrichment consisted of spending time interacting with the giraffe, which can include stimulation and entertainment using branches, treats, and even spoons hung on the fence for play. The Petitioner was able to devote an average of six hours per day to taking care of the giraffe because she has a full-time employee who helps take care of the primates and a part-time employee who helps with cage repairs and maintenance. The Denial On May 26, 2017, the Agency issued its Notice of Denial. It stated that because the Petitioner’s current job is full-time, “it does not appear that [she] had time to obtain the required experience hours for giraffidae.” The denial went on to state that the Agency “has reason to believe that six hours per day is an unreasonable amount of time to spend caring for one giraffe and therefore, that these hours have been falsified.” Furthermore, the denial stated that the Petitioner “in a conversation with FWC Investigator Steven McDaniel . . . stated [she] spent about half of the documented experience hours sitting and observing the giraffe.” The denial states that “observation time” cannot be claimed to meet the experience requirements of the rule. The Petitioner and Mr. Holly testified that there were no chairs at the giraffe’s barn and enclosure for “sitting.” In addition, Mr. Holly testified that references to observation was time spent using branches and other treats for enrichment, to learn and understand the giraffe’s “body language and behavior,” and “was also a way for them to sort of build a bond.” In his opinion these activities were part of husbandry, i.e., “everything that goes into taking care of that giraffe.” The Agency did not offer any contrary factual or expert testimony regarding husbandry of giraffes. The Petitioner testified persuasively that she expended the time required to obtain her experience hours, that she did not falsify the hours submitted in her application, and that she did not spend half of her hours just sitting and observing the giraffe. Investigator McDaniels’ testimony showed that the Agency only made a cursory attempt to verify the Petitioner’s hours. The Agency did not contact Mr. Holly, although he wrote a letter of recommendation as part of the Petitioner’s application; and Investigator McDaniel did not actually observe the Petitioner’s interactions with the giraffe.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that FWC enter a final order granting the Petitioner’s request to add giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale. DONE AND ENTERED this 13th day of February, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February 2018. COPIES FURNISHED: William John Cook, Esquire Barker and Cook, P.A. Suite 1040 501 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Tyler N. Parks, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eugene Nichols "Nick" Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
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 The issues are whether Respondent is guilty of employment discrimination, based on age or marital status, in violation of the Florida Civil Rights Act of 1992 and, if so, what relief is appropriate.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner was born in 1940 or 1941. He has a high school education, and he has obtained some credits toward an associate’s degree in computer science/business management. Petitioner is married, but his children are grown and no longer living at home. Petitioner worked for 30 years with a large manufacturer, which reduced its workforce and terminated him. Shortly prior to moving to Florida in 1993, Petitioner worked for two and one-half years with the fish and game division of the Enfield, Connecticut, police department, enforcing fishing and hunting laws and dealing with animals. In April 1994, Petitioner applied with Respondent for the position of animal control officer. In May 1994, Keith Larson, Director of Animal Control, telephoned Petitioner and scheduled an interview for the following week. During this telephone call, Mr. Larson and Petitioner briefly discussed his animal control experience with the Enfield police department. Mr. Larson said that Petitioner sounded like a good candidate, and Petitioner felt that he had a good chance to get the job. During the interview, which took place on May 27, 1994, Mr. Larson asked Petitioner, “Do you really think you can get through the animal control course at this time of your life?” Petitioner replied in the affirmative. Mr. Larson also asked Respondent if he were married and if his wife would mind him working the “crazy hours” required of an animal control officer because wives sometimes caused problems. Petitioner assured him that his wife would present no problems. At the time, Petitioner has been working as a Wells Fargo security officer at the courthouse. A few days after his interview, he learned from a deputy that Mr. Larson had hired someone else for the animal control position. Shortly after learning that Mr. Larson had not chosen him for the job, Petitioner complained to Ms. Linda Skelton, presently Respondent’s Human Resources Manager and then one of Respondent’s Employee Relations Supervisors. Petitioner complained about the questions that Mr. Larson had asked during the interview. Ms. Skelton conducted an investigation, which consisted entirely of talking to Mr. Larson, who denied making any of the statements. Ms. Skelton then informed Petitioner that she had found no evidence of discrimination, but referred him to the Florida Commission on Human Relations and Equal Employment Opportunity Commission, if he wished to pursue the matter further. She encouraged Petitioner to reapply for an animal control position and promised a fair interview if he did. Choosing not to pursue legal relief, Petitioner reapplied for an animal control position four more times in the year following the unsuccessful initial application. On the first three reapplications, Mr. Larson declined to offer Petitioner an interview. On the fourth reapplication, Mr. Larson granted Petitioner another interview. On Petitioner’s fourth reapplication, Mr. Larson, in consultation with Ms. Skelton, arranged for a panel of County employees to interview candidates. The panel consisted of two firefighters, who were not familiar with the duties of animal control officers, and an animal control officer. Mr. Larson did not speak to any of the three panelists about their deliberations, so as to isolate himself from the selection process. However, the panelists knew Mr. Larson had formed the panel due to Petitioner’s earlier complaint about age and marital discrimination. The panel conducted its interviews in May 1995. The panelists were not particularly well-prepared to conduct interviews. The most prominent shortcoming emerged when one of the firefighters asked Petitioner’s brother, who was also interviewing for the animal control position, who was older-- Petitioner or his brother. The panelists did not take notes during the interviews. They administered a short written test to each applicant; during Petitioner’s test, one panelist continued to talk to him. Petitioner took offense at this distraction, as well as the waste of time spent on a discussion of Petitioner’s martial arts background. Given the simplicity of the test, the distraction was harmless, as was the discussion of martial arts. The deficiencies of the panel are attributable to the unsuitability of the panelists for their task; this was the first time that the panelists had interviewed applicants for an animal control position. After considering all of the applicants, the panelists recommended that Mr. Larson not hire any of the applicants, but instead try to obtain new applicants for the opening. Mr. Larson accepted this recommendation and readvertised the position. Petitioner did not apply for this or any subsequent animal control opening. After conducting another round of interviews, the panelists recommended that Mr. Larson hire Catherine Katzman. Mr. Larson did so. This was the last time that Mr. Larson used the panel to interview applicants for an animal control position. Petitioner’s career and education have had almost nothing to do with animal control. Although the record is not particularly well-developed on these points, it does not appear that much of the animal control officer’s duties in Charlotte County involve undomesticated animals, and it does not appear that much of Petitioner’s duties in the fish and game division of the Enfield police department involved domesticated animals. The job description for the animal control position calls for someone to apprehend animals and enforce the County’s animal control ordinances. The educational and physical demands are modest: graduation from a high school or vocational school with “some animal contact work experience” and “moderate physical activity.” The job description notes that the position requires knowledge of animal control procedures, relevant local law, and the geography of Charlotte County, as well as an ability to work with the public. Petitioner is qualified for each animal control position that Mr. Larson sought to fill. However, Petitioner’s qualifications are minimal and easily bettered by other applicants. Following the May 1994 interview, Mr. Larson hired William Pahl, who was in his 20s, married, and the father of at least two young children. Mr. Pahl had already earned his animal control certificate and had worked for two years as an animal control officer in Lee County. Mr. Pahl was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was Charles Owensby, who had a high school degree and was in his 40s. Mr. Owensby had already earned his animal control certificate and had worked for three years as an animal control officer in Lee County, ten months as a veterinary technician, and 15 years as a dog trainer. Mr. Owensby was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was James Wilcox. Mr. Wilcox had no prior experience in animal control. He was in his mid 20s. Mr. Larson based his decision to hire Mr. Wilcox on his ability to mold him into an ideal animal control officer. The record does not reveal if a factor other than youth contributed to Mr. Larson’s determination that Mr. Wilcox could be molded into the ideal animal control officer. Mr. Wilcox had only a high school education and his work experience was unimpressive, consisting of grocery store clerk (five months), outdoor furniture assembler (11 months), short-order cook and handyman at restaurant (five months), lawn maintenance (seven months), and--most recently--handyman at a resort (10 months). Again, the record is not particularly well- developed, but Mr. Larson promoted Mr. Wilcox to Animal Control Supervisor at some point, presumably due to Mr. Wilcox’s good work. Mr. Wilcox left the Animal Control Department after two or three years to join the Charlotte County Fire Department. Mr. Wilcox was not as qualified as Petitioner for the animal control position. Petitioner had some tangentially relevant experience; Mr. Wilcox had none. Petitioner had an impressive employment history; Mr. Wilcox did not. The next person whom Mr. Larson hired, rather than Petitioner, was Cheryl Vanande. She had earned a college degree, but had no relevant experience. Ms. Vanande had worked as an energy conservation specialist for a power company (four and one- half years), yellow pages salesperson (nearly two years), and automobile sales and leasing representative (one and one-half years). While serving in the naval reserves, Ms. Vanande had supervised up to 68 persons. Also, her annual earnings had consistently been about $24,000. Ms. Vanande was married and in her 30s. Despite the lack of direct animal control experience, Ms. Vanande was probably more qualified than Petitioner. The last person whom Mr. Larson hired, instead of Petitioner, was Catherine Katzman, whom he hired after the second round of interviews in June 1995. Ms. Katzman had worked for two years at an animal shelter in Charlotte County, where her responsibilities included care for fractious animals. She had also worked for a couple of months as a veterinary technician. Ms. Katzman had earned an associate arts degree and credits in a veterinary medicine major. Ms. Katzman was in her mid 20s and married. She was considerably more qualified than Petitioner. Except for the hiring of Mr. Wilcox, the decisions to employ persons other than Petitioner were entirely justified, based upon qualifications. Ms. Vanande is a closer case, but her college degree and supervisory experience probably rendered her a superior applicant over Petitioner. In each of these cases, then, Mr. Larson’s testimony that his employment decisions were not motivated by unlawful discriminatory intent is supported by the fact that he hired persons more qualified than Petitioner. The decision to employ Mr. Wilcox, rather than Petitioner, cannot be justified based on superior qualifications. On paper, Petitioner was more qualified than Mr. Wilcox for the animal control position. If Mr. Larson had reasons, besides relative youth, to hire Mr. Wilcox, he did not articulate them at the hearing. Mr. Larson’s initial interview with Petitioner is crucial in this case. Displaying an interest in Petitioner’s age and marital status, Mr. Larson revealed the role of these criteria in his hiring decisions. This does not mean that his preferences concerning age and marital status necessarily influenced subsequent decisions. In fact, the record does not establish that any of Mr. Larson’s employment decisions in this case were influenced by marital status. As for age, the superior qualifications of all the other applicants, besides Mr. Wilcox, signifies that it was unnecessary for Mr. Larson, in hiring these four applicants, to reach the issue of age. Each of these four applicants was better qualified than Petitioner to fill the animal control position, so Mr. Larson presumably ended his considerations at this point. But Mr. Wilcox was not as qualified as Petitioner to fill the animal control position. The reasonable inference is that, in hiring Mr. Wilcox over Petitioner, Mr. Larson gave effect to the discriminatory concerns, earlier expressed during the initial interview, concerning Petitioner’s age. Specifically, solely on the basis of age, Mr. Larson doubted that Petitioner was sufficiently adaptable to acquire the skills needed for the animal control position; solely on the basis of age, Mr. Larson expected that Mr. Wilcox was sufficiently adaptable--moldable--to acquire the skills for the animal control position. Mr. Wilcox’s application bears a date of receipt of February 16, 1995. It is safe to assume that Respondent received Mr. Wilcox’s application prior to the date on which Mr. Larson hired Mr. Wilcox. Petitioner filed his Charge of Discrimination on November 21, 1995. Clearly, then, Petitioner filed his Charge of Discrimination within one year of the sole act of discrimination proved in this case. Although Petitioner relies upon evidence dating from earlier than November 21, 1994, to establish an act of age discrimination, the act of age discrimination did not take place until early 1995. Petitioner’s proof of emotional suffering is too vague and uncertain to permit an award. This claim is rejected. Petitioner’s proof of lost earnings and associated benefits is more definite, but somewhat unclear. Petitioner would have initially earned $8.12 hourly as an animal control officer, which required 40 hours weekly. Six years have elapsed since the approximate date of hire of Mr. Wilcox. The record suggests that Petitioner would have retired in 2002. It is not entirely clear when Petitioner has held various jobs since March 1, 1995. At one point, Petitioner worked for Wells Fargo at $5.15 hourly. Then, he worked at the Charlotte County courthouse at $5.75 hourly and later earned $7.00 hourly. At some point, Petitioner worked at the clerk’s office at the courthouse and earned $6.50 hourly, but was employed only 30 hours weekly. The parties should try to settle upon a specific amount representing the value of lost earnings and associated benefits, when comparing the animal control job to Petitioner’s actual employment, from March 1, 1995 (or, if available, the date of hire of Mr. Wilcox) through his age of retirement, as noted in Petitioner’s proposed recommended order, in 2002. Likewise, the parties should try to settle upon attorneys’ fees and costs. If unable to reach a settlement, the parties should request the Florida Commission on Human Relations to remand the case again to the Division of Administrative Hearings for the purpose of conducting an evidentiary hearing on the issue of the precise relief to which Petitioner is entitled.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations: Enter a final order dismissing Petitioner’s Petition for Relief on the ground that it is time-barred. If the Commission elects not to dismiss the Petition for Relief, enter a final order determining that Petitioner has proved that Respondent committed a single act of age discrimination in the decision to hire Mr. Wilcox on or about March 1, 1995, as an animal control officer. If the Commission enters a final order determining that Respondent has committed the act of discrimination described in the preceding paragraph, enter a final order giving the parties a reasonable period of time to settle Petitioner’s claims, other than emotional suffering, and, if they fail to do so, enter an order remanding the case to the Division of Administrative Hearings to conduct an evidentiary hearing solely on the issue of the relief to which Petitioner is entitled. DONE AND ENTERED this 13th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 13th day of March, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy L. Sergent Lancaster & Eure, P.A. 711 North Washington Boulevard Sarasota, Florida 34236 Brendan Bradley Deputy County Attorney Charlotte County Administration Center 18500 Murdock Circle Port Charlotte, Florida 33948-1094
