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 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
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed April 15, 2011 2:00 PM Division of Administrative Hearings FINAL ORDER NO. DCA 11-GM-067
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-067 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this AV day of April, 2011. Paula Ford Agency Clerk By Inter-Agency Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, FL 33712 TWReeseEsq@aol.com Steven T. Williams, Esquire Office of the County Attorney Harmon Turner Bldg, 8th Floor 3301 East Tamiami Trail Naples, FL 34112 StevenWilliams@colliergov.net Richard D. Yovanovich, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples FL 34103 ryovanovich@cyklawfirm.com FINAL ORDER NO. DCA 11~GM-067 Michael A. Durant, Esquire Conroy, Conroy & Durant, P.A. 2210 Vanderbuilt Beach Road, Suite 1201 Naples, FL 34109 mdurant@ccdlegal.com Lynette Norr, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us
The Issue The issue in this case is whether Respondent, Zion's Hope, Inc., d/b/a Holy Land Experience (hereinafter "HLE"), discriminated against Petitioners, James Gantz and Bette Gantz, by refusing Petitioners entry into HLE due to the Gantzes's disability, i.e., being hard of hearing and requiring the service of hearing ear dogs.
Findings Of Fact Zion's Hope, Inc., is a Florida not-for-profit corporation formed in 1989. It is a religious entity with a Section 501(c)3 designation under the U.S. Tax Code as a bona fide charitable organization. HLE is a privately-owned religious theme park operated by Zion's Hope. Religious services are conducted at HLE seven days a week. HLE is located at 4655 Vineland Road, Orlando, Florida. The public, upon payment of an admission fee, is invited into HLE on a daily basis. James and Bette Gantz are an elderly married couple who reside for part of each year in North Port, Florida. Both James and Bette are hard of hearing and have suffered from this affliction for many years. James and Bette each have a certified hearing ear dog which accompanies them almost everywhere they go. The dogs were present at the final hearing. On March 19, 2010, James and Bette accompanied by their service dogs and Bette's sister, Lois Wilcox, decided to visit HLE. Upon arrival, they were told that the HLE parking lot was full, but that additional parking was available across the street. James dropped off Bette, the dogs, and Lois in front of the HLE entrance, then went to park the car across the street. When Bette, Lois, and the dogs approached the ticket window to purchase admission into HLE, they talked to one of the employees about the service dogs to make sure the dogs could accompany them inside. The employee opted to call her superior, Jane Wilcox (no relation to Lois), to make a determination about the dogs. Jane Wilcox testified that she approached Bette and Lois in the lobby area, i.e., an enclosed area akin to a hotel lobby, which housed the ticket windows. Bette and Lois said they were never inside a building at HLE; rather, the discussions that occurred happened outside on the sidewalk area. It seems most likely from the evidence that the conversation commenced inside the lobby and then continued outside. Jane Wilcox did a cursory examination of the dogs and decided they did not appear to be service dogs. She also determined that the dogs appeared to be "frisky" in nature and were not like other service dogs she had seen. It was her practice to make a determination as to whether an animal was a service animal or not by asking reasonable questions. This is the way she handles each of the 100 or so cases a year in which guests show up with animals. Jane Wilcox has not had any formal training from the Commission or other regulatory entity regarding service dogs. She was given on-the-job training by her predecessor and has studied written materials on the subject. Her experience in this area is somewhat extensive during her three and a-half year tenure at HLE. After Jane Wilcox made an initial visual determination that the dogs appeared to be pets, Bette attempted to advise her that the dogs were certified and had certification documents on the capes they were wearing. Bette and James had taken the dogs into numerous other businesses and had been asked many times for proof of the dogs' certification. Thus, they kept the certification documents on the dogs at all times. Jane Wilcox refused to look at the certification documents because she has been provided bogus certification documents on occasion. That being the case, she did not put any stock in documents that were presented to her by guests. Rather, it was her normal practice to ask questions of the owners and to visually examine the animals. Based on the answers and her observation, Jane Wilcox would come to a conclusion about the animal in question. The discussion between Jane Wilcox and Bette became somewhat heated once Jane Wilcox made her initial determination about the dogs. Bette was talking loudly, but she is prone to do that because of her hearing impairment. Jane Wilcox viewed Bette as being very excited and possibly offended by the refusal to admit the dogs into HLE. After a few moments, Jane Wilcox determined that communication with Bette had broken down to the point that further conversation was useless. At that point, she called for security assistance.1/ It appears that the matter could have been resolved to everyone's satisfaction had the conversation not degenerated into a contentious debate between the parties. However, it is impossible to ascertain from the facts submitted whether one party or the other was more responsible for the verbal melee. Therefore, no finding can be made as to that point. The security officer who arrived took Bette and Lois to his small security building, where they were joined by James. The security officer said that Jane Wilcox was within her rights to refuse their admission into HLE with the service dogs. He advised them that there was a facility nearby that would care for the dogs while the guests were at HLE. The security officer allegedly told the Gantzes that HLE was a private facility and not subject to federal or state law regarding disabled persons. He also supposedly said that HLE considers dogs like those belonging to the Gantzes as pets, rather than service animals. According to Bette, this "colored" security officer would not listen to her or allow her to talk. A Caucasian guard, however, allegedly told Bette that maybe the dogs should be allowed into HLE, but he was overruled by the first guard. The Gantzes then asked the security officer to call the local (Orlando) police, which he did. When the police officer arrived, he advised the Gantzes that he could not force HLE to admit the dogs, but that he would write up a report. The report written by the police officer indicates that "security officer Santis" called in the request for assistance. It is not clear from the evidence at final hearing which of the two aforementioned security officers was Santis. The incident narrative in the police report simply states: Contact was made with all parties. 'Gantz' were acc[ompanied] by certified service dogs for hearing along with proper documentation. Upon Mngt request to leave, did so without incident. The Gantzes and Lois Wilcox opted not to board the dogs at the nearby facility. Rather, they left HLE and, ultimately, filed a complaint against Zion's Hope with the Commission. HLE does have a policy of admitting service animals inside the attraction. However, as a private religious facility, it does not believe that it has to do so, i.e., it does not believe it is governed by the Americans with Disabilities Act. Of the 100 or so service animals appearing for admission each year, about 70 percent of them are admitted. The others are boarded or the owners opt not to enter HLE. HLE does have a strict policy disallowing pets from admission to the park. Inasmuch as Jane Wilcox found the animals with the Gantzes to be pets, they were denied admission on that basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief filed by James Gantz and Bette Gantz in their entirety. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 31st day of March, 2011.
Findings Of Fact Petitioner proposes to erect a hyacinth fence at the entrance to Canal number 4 in Lake Istokpoga. The fence will consist of 4' x 4' posts six feet apart extending approximately 100 feet from each marsh bank of the canal toward Lake Istokpoga with an opening at the entrance of 12 to 14 feet to allow boat access. The fence will be attached to these 4' x 4' posts and extend about 2 feet below the surface of the water to prevent hyacinths from entering the canal and blocking navigation. Three other canals leading into Lake Istokpoga have been equipped with hyacinth fences and to date no problems have occurred. The fence does not extend to the bottom of the lake, is of a type approved by DER and will not materially effect the movement of water into and out of the canal. There is less water turnover in the canals than in the lake. This results in the canals having less oxygen than the lake and therefore are in a more stressed condition. As a result, from an ecological point of view, it is preferred to keep the hyacinths in the lake as opposed to the canals. Hyacinths which die and sink to the bottom take from the water oxygen that is needed to sustain aquatic life. From a navigational standpoint the 12 to 14 feet opening in the proposed fence is adequate for the boats that use the lake and canal. Erection of the fence will have no adverse effect on the ecology or biological resources of the area, and will result in keeping out many hyacinths that otherwise would enter the canal.
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)
Findings Of Fact It is stipulated that Marine Industries Association of South Florida, Inc. (Petitioner), has standing to bring this rule challenge. It is also stipulated that Save The Manatee Club, Inc. (Intervenor), has standing to intervene in this rule challenge. The Department of Environmental Protection (Respondent) has the responsibility of implementing the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes, which involves interpreting the terms thereof. Respondent's responsibility includes promulgating rules to regulate motorboat speeds and their operation incident to the protection of manatees, pursuant to the Act. 4. Respondent's Rules 16N-22.001(2), 16N-22.002(20) and (21), Florida Administrative Code, set forth criteria for determining the state waters in which motorboat speed would be regulated for the protection of manatees. Also, Respondent's Rules 16N-22.010(1)(e) and (g), Florida Administrative Code, establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County and a year-round slow speed and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County for the protection of manatees. The manatee is an endangered marine mammal residing in the southern United States, principally in Florida, and has been declared by the State of Florida as its state marine mammal. Only 900 manatees are considered to be on the east coast of Florida. Respondent uses all available information on the presence of manatees, which includes actual visual sightings as well as any other method to identify their presence. Respondent refers to this information as "sightings." Respondent's information gathering procedure is consistent with established and accepted procedures for the gathering of information on manatees. Aerial surveys are part of the information relied upon by Respondent for its determinations regarding manatees. It is possible, and not uncommon, that aerial surveys may include sightings of the same mammal on different days. Whether a manatee is sighted frequently involves more than just numbers. It also includes a reasonable expectation that manatees will be seen. Aerial survey data is a minimum count to ascertain where the manatees are, not to determine how many exist or their population. Sixty-one aerial surveys were conducted in the waters of Broward County, excluding the Hillsboro Inlet, by Respondent and Broward County for Respondent. During the aerial surveys from 1988 to 1993, sixty-seven to sixty- nine sightings were made in the northern Intracoastal Waterway (NICW) in Broward County. Also, the aerial survey data showed sightings in seven out of twelve, five out of fifteen, and eleven out of eighteen flights. Manatees occasionally travel in the ocean. The aerial surveys included passes over the Atlantic Ocean. The NICW has lowlight transmission and high turbidity. Manatees travel two to five feet below the surface of the water. Because of water clarity, surface conditions and the fact that manatees must be at or very near the surface to be spotted, manatees are difficult to see in the NICW. The aerial surveys revealed an average of one sighting per flight. Lack of sightings in the aerial surveys reflect survey conditions as much as the absence of manatees. Manatees regularly move in and out of the Hillsboro Inlet zone. Manatees use the NICW in Broward County often and are frequently sighted there. When determining whether manatees inhabit an area, all data bases available should be used. The Intracoastal Waterway (ICW) is used by manatees for travel through Broward County. Aerial surveys of the NICW are performed at a lesser density than those performed of the power plants which are warm water refuges. Regular travel corridors constitute essential habitat. The NICW is a major travel corridor for manatees. They migrate through the NICW. Migration means purposeful movement from one point to another, as well as seasonal movement of species in mass. Manatees use the waters of the NICW and the power plants when moving back and forth between Port Everglades and Riviera Beach, and this exchange is documented. More than 200 manatees use both the Port Everglades and the Riviera Beach Power Plants (both warm water discharge areas) as warm water refuges, making repeated trips back and forth in single seasons. Thirty-Eight to forty-seven percent of manatees on the east coast use the Port Everglades area. Manatees inhabit areas where they are found. As to the waters of the ICW, they inhabit it on a regular basis. Moreover, manatees inhabit the NICW virtually continuously in winter and regularly or periodically in the off-winter months. Manatees inhabit Broward County year round, continuously in the winter months and regularly in the off-winter months. Although to a lesser degree, Respondent considers radio telemetry data in its determinations regarding manatees. Radio telemetry is a data gathering technique which is not experimental, but is less revealing when used with manatees. Telemetry data is hard to acquire in the NICW because manatees' behavior of resting and traveling deploys the tag being used in a way which is not available to the satellite. As a result, every tagged manatee is not seen on every satellite pass. Data from telemetry studies show that manatees predominantly travel the ICW, and extremely infrequently in the ocean, and have a regular exchange between the Port Everglades and Riviera Beach plants. Tagged manatees, when located visually, are found in association with others. The behavior of radio-tagged manatees is representative of the population of manatees as a whole. Manatees travel in groups in the NICW. A congregation of mammals means more than one mammal together, without assigning a reason for the congregation. Manatees congregate in areas where they are sighted in groups of two to three or more. All of the available information taken together indicates that manatees congregate in the NICW, using it on a regular and frequent basis. Respondent considers the entire NICW, including the Hillsboro Inlet zone, as a single unit when interpreting manatee sightings because of the types of manatee behavior observed and the character of the NICW. Respondent also considers anecdotal data in its determinations regarding manatees. Anecdotal data is useful for confirmation of, but not for providing new insights about manatees and their behavior. Anecdotal sighting data are consistent with and confirm what is known by Respondent from other sources about manatees. Motorboats kill, maim and disturb manatees. Manatees have scars on their bodies, which are caused by collisions with watercraft. Virtually all manatees have propeller scars and approximately 900 are documented in what is known as the Scar Catalogue. Scar patterns on manatees indicate numerous collisions, some nine to ten times. The Scar Catalogue also indicates that manatees move back and forth between the Port Everglades and Riviera Beach plants. Since 1974, when Respondent started compiling manatee mortality data, of the manatees recovered for which the cause of death could be determined, 522 were attributed to watercraft collision. Of the 522 watercraft collision deaths, twenty-seven manatees were recovered in Broward County, which represents over one-half of the total manatee deaths in Broward County for which the cause of death could be determined. However, the recovery data fails, and is unable, to show where within the ICW or NICW the manatees were struck. After a collision, manatees will seek out a quiet area. It is not unusual and is expected that injured manatees in Broward County will seek refuge at the Port Everglades. Boat traffic poses a threat to manatees. Increased or higher boat traffic poses an elevated or even greater risk to manatees. Broward County waters are utilized by large numbers of boaters. In addition to Broward boaters whose boat registrations have increased eighteen percent between 1986 and 1991, boaters from Dade and Palm Beach Counties and in winter from out-of-state use Broward waters. Boating traffic in Broward County and the NICW is heavier on weekends than on weekdays. There is no change in the traffic for Broward County in the winter months from November through March. More boating occurs during the day than at night on the NICW. A survey of boaters in Broward County relied upon by Respondent indicated that over fifty percent of boaters leave between 8:00 a.m. and noon and return between 2:00 p.m. and 6:00 p.m.; that eighty-four percent of those surveyed were in favor of speed limits to protect manatees; and that fifty-nine percent of those surveyed were in favor of slow speed for the whole county on weekends and holidays from November to March. Comparatively, Respondent's slow speed rule is substantially less stringent than that which was found acceptable by those surveyed and not as stringent as recommended by the federal Fish and Wildlife Service. Several local governments in the NICW adopted resolutions calling for more stringent regulations than Respondent's rule. In an effort to lessen the interference with boaters while also providing an area of protection for manatees in the NICW, the 25 mph speed limit with the fifty-foot buffer zone was adopted. A slow speed zone in the NICW will enhance boating safety. At slow speed, only boats with propeller-on-shaft and a rudder will exhibit an unsafe condition referred to as wobbling. However, virtually no typical recreation boat which is under thirty feet is configured that way.
The Issue Whether grounds exist to deny Petitioner's Class III Personal Use Application, which would allow him to personally possess a capuchin monkey. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact The Commission is the state agency that exercises regulatory and executive powers with respect to wild animal life, fresh water aquatic life, and marine life within Florida. Art. IV, § 9, Fla. Const. The Commission is also responsible for promulgating rules regarding wild animal life in the state. § 379.1025, Fla. Stat. Petitioner desires to "personally possess" a capuchin monkey named "Roxy." To do so, Petitioner must first obtain a Class III captive wildlife pet permit from the State of Florida. As a brief background, Roxy currently belongs to identical twin sisters, Yvonne Robertson, née Hicks, and Yvette Hicks. The Hicks sisters obtained Roxy as a baby in 2006, when they lived in West Virginia. The twins quickly grew enamored with Roxy, and adopted five more capuchin monkeys over the next few years. In 2013, the sisters moved to Florida. They bought a house in Sebring with enough property to construct a large habitat, which would enable their growing "troop" of monkeys to enjoy a healthy lifestyle in a more natural environment. Upon arriving in Florida, both sisters sought the required licenses to possess their animals. Yvonne Robertson applied for, and received, a Class III permit from the Commission. Yvette Hicks applied for, and received, the corresponding permit from the U.S. Department of Agriculture. The sisters now own and house 14 capuchin monkeys on their property. 2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). After establishing their residence, the Hicks sisters formed the business "Twins & Jungle Friends." Soon thereafter, they began showing their capuchin monkeys at a variety of events across the state. The "Twins & Jungle Friends" dynamic changed slightly in 2015, when Yvette Hicks met Petitioner. Yvette and Petitioner swiftly developed, and are currently enjoying, a serious personal relationship. At first, Petitioner moved into the sisters' house to help the twins care for their monkeys. The monkeys quickly took to Petitioner, and he became involved in every aspect of nurturing and raising the animals. Petitioner formed an especially close bond with the twins' oldest capuchin monkey, Roxy. As more fully discussed below, in early 2018, Petitioner and Yvette Hicks decided to move to Petitioner's home. Petitioner also desired for Roxy to come live in a habitat he built in his backyard. For authorization to keep Roxy at his house, Petitioner was required to apply for a Class III wildlife pet permit from the Commission.3 See §§ 379.3761 and 379.3762, Fla. Stat., and Fla. Admin. Code R. 68A-6.003(5) and 68A-6.004(3). Accordingly, on July 16, 2018, Petitioner submitted to the Commission a Class III Personal Use Application and Questionnaire (the "Application") for "One Black Capped Capuchin Monkey (Sapajus Apella)." Pursuant to Florida Administrative Code Rule 68A-6.004(3)(c), to receive a Class III permit for a capuchin monkey, Petitioner is specifically required to meet the age, experience, and examination requirements for authorization to possess Class II wildlife as set forth in rule 68A-6.004(2)(d). Rule 68A-6.004(2)(d) requires applicants to document one year of experience, to consist of no less than 1,000 hours, "in the care, feeding, handling, and 3 The Commission, by rule, has established three categories, or "Classes," of captive wildlife in Florida. Class I includes animals that pose a significant, potentially lethal, risk to public safety, including lions, tigers, and bears. Class II includes animals that are capable of inflicting serious bodily harm, such as alligators, coyotes, and ostriches. Class III encompasses all other wildlife (including capuchin monkeys) not listed in Class I or II. See Fla. Admin. Code Rule 68A-6.002. husbandry of the species for which the permit is sought." See Fla. Admin. Code R. 68A-6.004((2)(c)1. Further, the documentation must include references of at least two individuals who have personal knowledge of the applicant's experience. Fla. Admin. Code R. 68A-6.004(2)(c)2.c. Petitioner, to demonstrate that he met the experience requirement, included two documents with his Application, which became the focus of the Commission's decision to deny Petitioner a permit to possess Roxy. The first document is an 11-page Documentation of Experience form (downloaded from the Commission's website), which records all the hours Petitioner worked in the "care, feeding, handling and husbandry" of capuchin monkeys from October 22, 2016, through February 11, 2018. The form reported that Petitioner worked eight hours a day with capuchin monkeys for approximately 8 to 10 days each month during that time period. Supporting this form is a typed letter describing the different entries written in the Documentation of Experience form, and bears the signature "Yvonne Hicks." (Yvonne Robertson's maiden name.) The letter represents that Petitioner has conducted all of his hours of experience under the supervision of Yvonne Hicks (Robertson), who holds an active Class III license from the Commission to possess capuchin monkeys. The second document is a separate letter of reference, also signed "Yvonne Hicks," which states: I Yvonne Hicks have witnessed [Petitioner take] care of many of our primates. He is very knowledgeable on the feeding caring and medical maintenance of the monkeys. He has also been part of our traveling entertainment business since October 2016. He will provide a very safe and loving home for primates. The Commission denied Petitioner's Application in a Notice of Denial letter, dated January 8, 2019. In its letter, the Commission stated that its decision was due to the following: Within your application … you submitted documented hours … under the supervision of license holder, Yvonne Hicks, along with a letter of reference from Ms. Hicks. … [However,] Ms. Hicks informed Investigator Zimmerman both the hours and the letter submitted to the Captive Wildlife Office had been falsified. For legal support, the Commission based its denial decision on rule 68- 1.010(1), which directs that the Commission "shall" deny an application based on the following grounds: Submission by the applicant of false, misleading, or inaccurate information in the application or in any supporting documentation provided by the applicant or on behalf of the applicant relating to the license ..." In short, the Commission alleges that Petitioner falsified his Application by intentionally misrepresenting, if not forging, information submitted with his Application regarding his experience working with capuchin monkeys. To expound on the basis for its decision, at the final hearing, the Commission offered the testimony of Erika Zimmerman, an investigator in the Commission's Captive Wildlife Office. Investigator Zimmerman's primary responsibilities are to ensure that individuals who apply for captive wildlife permits will offer humane and sanitary treatment to the animals they wish to possess, as well as maintain public safety. Investigator Zimmerman explained that, in early 2018, she was assigned to investigate the efficacy of granting Petitioner a Class III permit to possess a capuchin monkey. To begin her investigation, Investigator Zimmerman met Petitioner at his house on February 1, 2018, in order to inspect the cage in which he intended to keep his monkey (Roxy). Upon arriving at Petitioner's home, however, Investigator Zimmerman found that Petitioner was already boarding several capuchin monkeys in a backyard enclosure. Because Petitioner did not already possess a Class III permit, she directed Petitioner to remove the monkeys from his property and return them to the proper license holder, Yvonne Robertson. The next event in Investigator Zimmerman's involvement occurred in April 2018. That month, she received a phone call from Yvonne Robertson. Ms. Robertson proclaimed to Investigator Zimmerman that if Petitioner presented the Commission with any correspondence, letter, or paperwork bearing her signature, it was a forgery. Ms. Robertson disclosed to Investigator Zimmerman that the Commission had previously denied Yvette Hicks (her sister) a permit to keep capuchin monkeys. Therefore, Ms. Hicks was conspiring with Petitioner to fraudulently obtain a Class III permit for himself. Ms. Robertson relayed that, to support his Application, Petitioner (and Ms. Hicks) had requested that Ms. Robertson substantiate his experience by verifying the hours recorded on his Documentation of Experience form. However, Ms. Robertson declared that she did not intend to sign off on any document included with Petitioner's Application. Petitioner submitted his Application to the Commission in July 2018. With the Application, Petitioner included the two letters bearing the signature "Yvonne Hicks." Upon receiving Petitioner's Application, Investigator Zimmerman promptly met with Ms. Robertson to inquire about a possible forgery. When shown the two signatures, Ms. Robertson initially affirmed that she signed the letters. But, she quickly broke down in tears and informed Investigator Zimmerman that the two signatures were forged. At that point, Investigator Zimmerman walked through with Ms. Robertson all the activities recorded on Petitioner's Documentation of Experience form. Ms. Robertson advised Investigator Zimmerman that: 1) she did not authorize the hours Petitioner allegedly worked per entry (8 hours), 2) much of the work described for each entry did not take 8 hours, and 3) (as a specific example) Petitioner did not give any of the monkeys an insulin shot. Thereafter, Investigator Zimmerman asked Ms. Robertson if she would provide a written statement memorializing their conversation. Ms. Robertson agreed, and completed a Commission Sworn Written Statement form. As Investigator Zimmerman watched. Ms. Robertson wrote: I didn't write this letter of recommendation and this is not my signature on this letter. On the App. of Documentation of hours for [Petitioner] I did not write those experience hours from 10-22-16 to 2-11- 18 and it is not my hand writing on the application. Ms. Robertson further set down that, regarding the letter describing the specific entries on the Documentation of Experience, Petitioner worked "no hours" with the monkeys related to construction, diapers, training, show, playtime, movement, meals, deworming, or administering Insulin. Ms. Robertson then signed the Sworn Written Statement with the name "Yvonne Hicks."4 Investigator Zimmerman then visited with Petitioner in August 2018. When they met, Investigator Zimmerman and Petitioner reviewed the Application. Petitioner expressed to Investigator Zimmerman that he personally completed his Application, and all representations in the Application, especially the hours worked with capuchin monkeys, were accurate. Investigator Zimmerman next confronted Yvette Hicks. Ms. Hicks became visibly upset upon learning that Ms. Robertson (her sister) would not support Petitioner's Application. Ms. Hicks maintained that all the information and signatures within the Application were accurate and true. At that point, Investigator Zimmerman concluded that Petitioner's Application contained falsehoods and forgeries. Therefore, later in August 2018, she presented her findings to the Highland County State Attorney's 4 To the naked eye, the "Yvonne Hicks" signatures on all three documents appear remarkably similar. The undersigned, however, is not a handwriting expert, and, therefore, makes no finding whether Ms. Robertson actually signed the two letters submitted with Petitioner's Application. Office to consider pressing criminal charges against both Petitioner and Yvette Hicks.5 Several months later, on January 16, 2019, Ms. Robertson met with Investigator Zimmerman and the State Attorney handling the criminal case. During that meeting, she repeated her attestation that the information in Petitioner's Application was "completely false" and her signatures were forged. Based on Ms. Robertson's declarations, criminal charges were brought against both Petitioner and Yvette Hicks for forgery. However, for reasons discussed in more detail below, in August 2019, Ms. Robertson recanted her entire testimony. Thereafter, the State Attorney's Office dismissed all charges against both Petitioner and Yvette Hicks. The Notice of Nolle Prosequi stated that: The State of Florida is unable to determine when Yvonne [Robertson] is lying and when she is not. Due to a total lack of credibility of this witness the State can not proceed further. Finally, during the final hearing, Investigator Zimmerman reviewed a handful of entries recorded in Petitioner's Documentation of Experience. She pointed out several specific areas of concern including: 1) the accuracy of the entries, 2) whether the tasks described actually consumed 8 hours of time, and 3) whether Petitioner had 8 hours of time available on several dates considering his busy work schedule with his employer, Highlands Regional Medical Center. 5 Rule 68A-6.004(2)(c)4. states: Providing false information to document the applicant's experience, by the applicant or any reference, is prohibited as provided in Sections 837.012 and 837.06, F.S. Section 837.012, Florida Statutes, directs that "a false statement, under oath, not in an official proceeding" is a first-degree misdemeanor. Similarly, section 837.06 states that "a false statement in writing with the intent to mislead a public servant" is a second-degree misdemeanor. Despite the possible discrepancies in Petitioner's Application, Investigator Zimmerman acknowledged that the Commission's application and questionnaire form does not contain any instructions or suggested format or language that applicants should use to complete the Documentation of Experience form. She also agreed that the activities Petitioner recorded, such as "interaction," "playtime," and "preparing meals" were legitimate examples of "care, feeding, handling, and husbandry" and could be performed in a variety of ways and lengths of time. John Conlin, a Lieutenant with the Captive Wildlife Office, also testified for the Commission. In his job, Lieutenant Conlin oversees the permitting process for captive wildlife in Florida. Lieutenant Conlin first became aware of Petitioner's Application when Investigator Zimmerman contacted his office to report a "red flag" due to an alleged falsified signature. Thereafter, based on Investigator Zimmerman's determination that the allegations of forgery and fraud were verified, the Captive Wildlife Office concluded that the hours of experience recorded on Petitioner's Application were false. Lieutenant Conlin commented that Yvonne Robertson was the only person with whom Petitioner worked who was licensed by the Commission to possess capuchin monkeys. Consequently, she was the only individual authorized to validate the time Petitioner spent with the monkeys. Therefore, when Ms. Robertson denied that she actually supervised the hours Petitioner claimed, the Commission designated his Application for denial. At the final hearing, Lieutenant Conlin expanded on his office's decision to deny the Application explaining that the fact that every entry on the Documentation of Experience form recorded exactly eight hours of time was a concern. The representation that Petitioner performed precisely eight hours of work with capuchin monkeys each day was not realistic. In addition, Lieutenant Conlin testified that many of the work descriptions themselves lacked sufficient details to establish the "care, feeding, handling, and husbandry" necessary to receive a permit. Despite the Commission's decision to deny Petitioner's Application, Lieutenant Conlin admitted that, if Petitioner's Documentation of Experience form was accurate, then Petitioner's Application reflects competency in the "care, feeding, handling, and husbandry" of capuchin monkeys. At the final hearing, Petitioner maintained that his Application is accurate, true, and valid, and he meets all requirements under rule 68A- 6.004 to receive a Class III wildlife pet permit to personally possess Roxy. Initially, Petitioner represented that he is a upstanding citizen and well respected professionally. He is a registered nurse and currently works as the night supervisor at Highlands Regional Medical Center in Sebring. Petitioner conveyed that he has a strong ethical track record as a hospital administrator, with no disciplinary issues. Addressing why he desires a permit, Petitioner expressed that, after meeting Yvette Hicks in October 2015, he quickly became involved with the sisters' capuchin monkeys. Although he owns his own home, he soon moved into the sister's house. From that point onward, his life has revolved around the monkeys. Petitioner testified that raising exotic animals takes time and energy. After moving in with Ms. Hicks, the monkeys dominated his life. To explain his experience in the "caring, feeding, handling, and husbandry" of capuchin monkeys recorded on his Documentation of Experience form, Petitioner recounted a typical day at the sisters' house. In the evenings, the sisters brought their monkeys inside the house to sleep with them in their beds. Then, first thing in the morning, the monkeys were taken out to their cages and fed. Meals were prepared and served twice a day. The monkeys were placed in diapers during day and showered/bathed at night. The cages themselves were cleaned once a day. Other activities, including "deworming," "interaction," "playtime," and "training" filled the gaps. Petitioner commented that every daily entry on his Documentation of Experience form was noted as "8" hours long because he understood that he could only record up to eight hours of experience per day. However, Petitioner testified that he generally spent far more than eight hours a day with the monkeys. Petitioner further relayed that Roxy, in particular, needs special attention as she has Type 1 diabetes. Her condition requires two shots of insulin a day, and her blood sugar levels must be routinely checked. Petitioner explained that, because of his nursing background, he quickly assumed responsibility for administering the shots to Roxy. Petitioner also remarked that the sisters book approximately 75 "Twins & Jungle Friends" shows a year (prior to the COVID-19 pandemic). The sisters, together with their capuchin monkeys, travel all across Florida to perform at a variety of venues, including birthday parties, corporate events, county fairs, music videos, and school functions. Petitioner expressed that he accompanied the sisters whenever he could to help handle the monkeys or set up the shows. Petitioner testified that his work with the sisters' capuchin monkeys remained consistent and steady until April 2018, when Ms. Hicks and Ms. Robertson experienced an abrupt and harsh falling out. Consequently, he suggested to Ms. Hicks that they move into his house, which they gradually did. Even so, Petitioner and Ms. Hicks continued to care for the monkeys on a daily basis. Thereafter, because of how attached he had grown to the monkeys, he wanted the ability to bring one or more of them back to his house. Therefore, he constructed a large cage in his backyard in which to house the monkeys. Regarding the Commission's stated reasons for denying his Application, Petitioner expressed that the experience recorded in his Documentation of Experience form is accurate, genuine, and true. Petitioner further testified that he did not forge or falsify the signature(s) of "Yvonne Hicks." Petitioner explained that Ms. Robertson and Ms. Hicks mended their relationship in July 2018. At that time (July 3, 2018, to be exact), Ms. Robertson signed his Application. Thereafter, he submitted it to the Commission. Petitioner declared that, since October 2016, he has easily spent over 1,000 hours a year working with capuchin monkeys. He continues to spend time every day with the monkeys. He has come to "love them like a child."6 Petitioner acknowledged that he and Ms. Hicks were arrested and charged with forgery in September 2018. However, Petitioner explained that the State of Florida dismissed the case prior to trial. Consequently, neither he nor Ms. Hicks were ever convicted of any crime for forgery or fraud related to his Application, nor are any charges currently pending. Petitioner asserted that the criminal case was based on an outright lie by Ms. Robertson, which she made because she was mad at her sister. Accordingly, Petitioner contends that his Application, on its face, easily shows that he meets the required regulatory conditions and criteria to possess a capuchin monkey. His Application amply demonstrates that he has acquired sufficient knowledge of the capuchin monkey species, as well as its nutritional and social needs, caging requirements, and safety and medical demands to qualify for a permit. Petitioner urges that his Application clearly documents over 1,000 hours of legitimate and valid experience working with capuchin monkeys, as required by rule 68A-6.004(2) and (3). Consequently, when considering the merits of his Application, Petitioner argues that he proved that the Commission should grant him a Class III permit. Petitioner's testimony regarding the work he has performed with capuchin monkeys beginning in October 2015 is credible and credited. 6 One of the benefits of video teleconferencing is that it allows a party to participate in the final hearing from any location. In this matter, Petitioner (and Ms. Robertson and Ms. Hicks) joined the final hearing from the sisters' house, which is home to Roxy and the troop of 13 other capuchin monkeys. Periodically during the hearing, Roxy traipsed across the video screen and crawled into Petitioner's arms. Both Petitioner and Roxy appeared quite at ease in each other's company, and Roxy's attachment to Petitioner was quite evident. Yvonne Robertson testified at the final hearing in support of Petitioner's Application. Ms. Robertson declared that she did, in fact, sign off on Petitioner's work hours. She asserted that the "Yvonne Hicks" signatures, on both the Documentation of Experience form, as well as the letter of reference, are hers. Before explaining why she now recants her (sworn) statements to Investigator Zimmerman and the State Attorney's Office, Ms. Robertson buttressed Petitioner's description of the activities he performed in the "care, feeding, handling, and husbandry" of capuchin monkeys. Ms. Robertson echoed Petitioner's statement that owning capuchin monkeys is "life changing," in that they have no life outside of caring for their monkeys. Her animals require constant attention to feed, nurture, and safeguard. As to why she contacted the Commission to report a forgery, Ms. Robertson expressed that in April 2018, she and her sister suffered a severe personality clash. Ms. Robertson explained that "like all sisters do … we fought our whole life." That same month, she was asked to approve Petitioner's Documentation of Experience form, as well as provide a reference letter. Ms. Robertson testified that, due to her roiling resentment of her sister, this request came at a most inopportune time. To spite her sister, Ms. Robertson reached out to Investigator Zimmerman and issued her proclamation that she did not, and would not, sign off on Petitioner's Application. Ms. Robertson admitted that she specifically told Investigator Zimmerman that any signature on the Application bearing her name was a "forgery." Later, when confronted by the State Attorney, she perpetuated her story because she believed that the Commission might take her monkeys away if she retracted her allegations. At the final hearing, however, Ms. Robertson adamantly asserted that the "Yvonne Hicks" signature on Petitioner's paperwork "is mine." Ms. Robertson professed that, she willingly supported, and supports, Petitioner's effort to obtain a wildlife pet permit to keep Roxy. Towards that end, Ms. Robertson testified that she personally observed Petitioner care for her capuchin monkeys from October 2016 through February 2018. Ms. Robertson further professed that she reviewed, approved, and signed off on Petitioner's Documentation of Experience form on July 3, 2018. Ms. Robertson explained that, by that date, she had reconciled with her sister, and was ready and willing to substantiate Petitioner's Application. Ms. Robertson further elaborated that it was her sister who actually completed the entries on the Documentation of Experience form. Ms. Robertson stated that Ms. Hicks maintains a daily planner/calendar. Ms. Robertson relayed that the descriptions of the work that Petitioner performed with the capuchin monkeys came directly from Ms. Hick's written records. Ms. Robertson further insisted that she personally observed Petitioner's interaction with the monkeys, and that Ms. Hick's entries are accurate and true. Ms. Robertson expressed that Petitioner, Ms. Hicks, and she worked together with the monkeys every day during the time period covered by Petitioner's Application. At the file hearing, Ms. Robertson expressed her extreme regret at accusing her sister and Petitioner of fraud. She wishes that she had never made the "stupid mistake" of reporting a forgery. Ms. Robertson asserted that she now fully endorses Petitioner's Application "because it is the right thing to do. He did the hours, he deserves the license." Yvette Hicks testified on Petitioner's behalf. Ms. Hicks asserted that Petitioner is perfectly capable of tending to Roxy and the rest of her capuchin monkeys. Not only was Petitioner receptive, ready, and willing to look after her monkeys, but the monkeys took to him as well. Ms. Hicks confirmed that she was the person who actually logged Petitioner's experience onto the Documentation of Experience form. Ms. Hicks testified that she diligently and meticulously writes into a planner "everything that happens on every day." She also maintains the calendar for "Twins & Jungle Friends" shows. To record Petitioner's work hours, she referred to her daily notes, then transferred the activities and events to Petitioner's Application. In chronicling Petitioner's experience on the Documentation of Experience form, Ms. Hicks explained that she recorded that Petitioner worked "8" hours a day with the monkeys because she understood that eight was the maximum number of hours that the Commission would allow per entry.7 In reality, however, Ms. Hicks insisted that Petitioner spent "way more" than eight hours a day with the monkeys. She maintained that, because he lived with the sisters, Petitioner worked with the monkeys all day, every day. Ms. Hicks also commented on several of her specific entries on the Documentation of Experience form. She explained that the term "Served Meals" documented when Petitioner prepared one or both of the monkeys' meals for the day. The entry for "Insulin" referred to the times Petitioner provided the insulin shots to Roxy. (Ms. Hicks added that Petitioner is an extremely capable nurse and administered the shots on most days.) Finally, Ms. Hicks voiced that "Show" entries represented days when Petitioner assisted with the "Twins & Jungle Friends" performances. (Ms. Hicks expressed that Petitioner became an integral part in the sisters' production.) Regarding Ms. Robertson's allegation to the Commission in April 2018 that she did not sign off on Petitioner's Application, Ms. Hicks declared that Ms. Robertson's statements were "all a lie." Ms. Hicks affirmed Ms. Robertson's testimony that their relationship was "rocky." Ms. Hicks, however, firmly, maintained that the hours and descriptions she wrote on 7 The one exception to the "8" hours worked for each entry on the Documentation of Experience form was for October 27, 28, and, 29, 2017. For these dates, Ms. Hicks recorded that Petitioner "spent 3 days performing at the Ocala Pumpkin Festival with show monkeys," and that he worked "all day." Petitioner's Documentation of Experience form were true and accurate.8 Ms. Hicks also fervently declared that Ms. Robertson signed off on Petitioner's experience, and the two signatures of "Yvonne Hicks" in the Application are Ms. Robertson's. Ms. Hicks convincingly testified that Petitioner is "wonderful" with the capuchin monkeys. Further, she credibly represented that, based on her observations, Petitioner protected the monkeys' safety, enhanced their lives, and made them happy. Based on the competent substantial evidence presented at the final hearing, the greater weight of the facts establishes that Petitioner possesses significant experience in the "care, feeding, handling, and husbandry" of capuchin monkeys. The evidence further shows that Petitioner will provide humane and sanitary treatment to any monkeys (especially Roxy) entrusted to his care. In addition, the testimony does not support, by a preponderance of the evidence in the record, the allegations that either the "Yvonne Hicks" signatures or the descriptions of work performed in Petitioner's Application are false, forged, fraudulent, or misleading. However, the implication that Petitioner's Documentation of Experience form contains "inaccurate information" has merit. The Commission's witnesses persuasively expressed the Commission's concerns with the accuracy of the representation that Petitioner earned exactly "8" hours of experience on each and every day he worked, as well as the reliability of the work descriptions written on the form, and whether the work described actually took "8" hours to perform. Further, although Ms. Robertson testified with conviction that Petitioner achieved the required 1,000 hours of experience under her supervision, her credibility is materially 8 At the final hearing, during questioning by the Commission, Ms. Hicks did concede one "inadvertent error" in the 11-page Documentation of Experience form. The "Show" entry she recorded on November 23, 2017, had been rescheduled and actually occurred on November 25, 2017. damaged by the prior untruths she told to Investigator Zimmerman and the Highlands County State Attorney's Office.9 Consequently, Petitioner did not establish that his Application meets the requirements necessary under rule 68A-6.004 to qualify for a wildlife pet permit for a capuchin monkey. Therefore, Petitioner did not meet his ultimate burden of proving that the Commission should grant his Class III Personal Use Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission deny Petitioner's Application for a Class III personal use permit to possess capuchin monkeys. DONE AND ENTERED this 25th day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Peri E. Sedigh, Esquire Sedigh Law 2443 Grandview Avenue Sanford, Florida 32771 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050
