The Issue The issue is whether Petitioner's applications to renew her Licenses to Possess Class II and III Wildlife for Exhibition or Public Sale should be approved.
Findings Of Fact The Commission is the state agency that has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. Before moving to her current residence in Kissimmee, Petitioner resided in Tampa, where she possessed a bobcat kitten and a kinkajou, a small rain forest creature. In May 2012, she advised the Commission by email that she intended to move to Central Florida. She requested that the Commission provide her with copies of rules that would apply if she kept a bobcat inside her new residence. In response to that request, the Commission provided her with copies of all applicable rules. She was also told that, in order to secure the bobcat, she would have to install chain link on her windows and a secondary safety entrance to the home. These features are necessary in order to ensure public safety. On an undisclosed date, Petitioner moved to a 2,000 square-foot home located at 8520 Sioux Trail, Kissimmee, where she established a captive wildlife facility. Later, she acquired two more bobcats, which she intended to use for presentations and educational shows in the Central Florida area. For that purpose, she formed Florida's C.L.A.W.S., an unincorporated organization that exhibits and sells wildlife at local events in Central Florida to educate the public about, and raise money for, the care of her animals. Her full-time vocation, however, is a tattoo artist, which requires that she work around 60 hours per week, often late into the night and during the early morning hours. "Captive wildlife" species are listed in Florida Administrative Code Rule 68A-6.002. The rule establishes three classes of captive wildlife: I, II, and III. Each requires a license issued by the Commission. Until it expired on March 5, 2015, Petitioner possessed a Class II license, issued on March 14, 2014, which allowed the exhibition and sale of Felidae (the family of cats). Until it expired on June 10, 2015, she also possessed a Class III license, first issued on June 3, 2011, which allowed the exhibition and sale of mammals, birds, reptiles, amphibians, and conditional species. By holding these licenses, she was responsible for the care of the captive wildlife at her facility. The instant case involves her applications to renew the two licenses. After her licenses expired and the two applications for renewal denied, on July 1, 2015, a Notice to Relinquish Wildlife was issued by the Commission. In response to that order, Petitioner moved her Class II and III captive wildlife to a friend's facility, where they remain pending the outcome of this proceeding. Currently, she keeps only dogs and cats at her home. When the Kissimmee facility was fully operational, Petitioner had more than 30 animals/reptiles, including foxes, bobcats, skunks, snakes (non-venomous), tegu lizards, and a kinkajou. All of these species are listed as captive wildlife in rule 68A-6.002. On February 25, 2014, an announced, routine inspection of Petitioner's facility was conducted by Captive Wildlife Investigator Damon Saunders. This type of inspection is required when a new facility is established. During the inspection, Investigator Saunders observed seven rule infractions, which are noted in his report and depicted in photographs taken that day. See Resp. Ex. C and D. Overall, he found the condition of the facility to be "substandard." The documented violations on February 25, 2014, are as follows: There was no safety entrance for the bobcat enclosure, as required by rule 68A- 6.003(1)(a); There was rusting that affected the structural integrity of the bobcat enclosure, in violation of rule 68A-6.0023(5)(e); Weld spots on the east side of the bobcat enclosure were coming undone due to corrosion in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The kinkajou was housed in a bird cage, in violation of rule 68A-6.004, which requires a cage size of six feet by eight feet, and six feet high; There was no record for the source of acquisition for her reticulated python, which is required by rule 68A-6.0023(6); A microchip passive integrated transponder (PIT) tag was not detected for the reticulated python; a PIT tag is required by rule 68-5.001(3)(e)2.; and The fox and various reptile enclosures had dirty water bowls, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean. At the end of the inspection, Investigator Saunders met with Petitioner and identified each infraction he observed; he explained how each should be corrected; and he told her that she had 30 days, or until March 27, 2014, to correct the violations. She was also given a copy of the Commission's captive wildlife rules, with the violated rules highlighted. Although Investigator Saunders observed several other violations that day, they were not noted on his inspection report because he knew the facility had just been established, and he wished to give Petitioner additional time in which to get her facility operating in accordance with all rules. On July 28, 2014, or approximately five months later, an unannounced, follow-up inspection was conducted by Captive Wildlife Investigators Steven McDaniel and Rick Brown. The purpose of the inspection was to determine if the violations observed on February 25, 2014, had been corrected. The inspection was purposely delayed until July, rather than 30 days after the first inspection, so that Petitioner would have adequate time to take corrective action. Petitioner complained that the inspection occurred when she just awoke around 10:20 a.m., after a long night at work and before she had time to clean the facility. For obvious reasons, however, the Commission does not give licensees advance warning of follow-up inspections. During the inspection, the investigators noted that Petitioner had six foxes, three bobcats, two skunks, a kinkajou, a reticulated python, and several nonvenomous snakes. With the exception of the safety entrance for the exterior bobcat cage, Petitioner acknowledged that none of the violations observed during the first inspection had been corrected. The investigators found some wildlife living in outdoor cages or other enclosures, while others, including two skunks, a bobcat, a kinkajou, a reticulated python, and several reptiles, were living in her home. Investigator McDaniel testified that "it looked as if very little had been done" and characterized the condition of the wildlife as "mediocre to poor." Investigator Brown noted that there was an "extreme" lack of care of the wildlife, the violations were "serious," and they were having an adverse impact on the health and well-being of the wildlife. The investigators observed a number of rule violations, which are listed in their Inspection Report and depicted in photographs taken that day. See Resp. Ex. E and F. The rule violations are summarized below: The outer safety door for the cage containing two bobcats was unsecured, in violation of rule 68A-6.0023(2)(b), which requires the cage to be sufficiently strong to prevent escape; There was standing, stagnant water in the bobcat shelter, in violation of rule 68A-6.0023(1), which requires wildlife to be maintained in sanitary conditions; Both the bobcats' water container and water in the container were dirty, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean and requires clean drinking water to be provided daily; There were large amounts of old and fresh fecal matter throughout the bobcat cage, in violation of rule 68A-6.0023(5)(d), which requires fecal waste to be removed daily from inside, under, and around cages and stored or disposed of in a manner which prevents noxious odors or pests; and carrion flies were evident on the fecal matter; The bobcat cage floor had not been raked every three days, as required by rule 68A- 6.0023(5)(e); The rust in the bobcat cage that was observed during the February 25 inspection was still evident and excessive, in violation of rule 68A-6.0023(5)(e), which requires any surface of a cage or enclosure that may come into contact with animals to be free of excessive rust that prevents the required cleaning or that affects the structural strength; The broken welds on parts of the cage panel walls on the bobcat cage observed during the February 25 inspection had not been repaired, in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The cage for the two foxes measured ten feet by five feet, two inches by six feet, and did not meet the caging requirements of eight feet by six feet by six feet specified in rule 68A-6.004(4)(h)2.a.; A fox was found in a small kennel cage inside Petitioner's home under veterinary care for an injured foot in violation of rule 68A-6.0041(2), which requires animals being temporarily housed in smaller cages for veterinary care to be in cages no smaller than that required for the caged animal to stand up, lie down, and turn around without touching the sides of the enclosure or another animal; Digging was observed between outdoor fox cages exposing the bottom apron in violation of rule 68A-6.003(1)(b)1., which requires the bottom apron to be buried to prevent injury to the captive wildlife in the enclosure; Two snakes in the bull/gopher snake family were observed in their own cages without water and a ball python was observed in a glass cage without water in violation of rule 68A-6.0023(5)(b), which requires that clean drinking water be provided daily; The ball python was in a glass cage with shed skin and old fecal matter; there were two Machlot's pythons in a large cage that was littered with excessive old fecal matter and old shed skins; a boa constrictor cage had old fecal matter in it; the reticulated python cage had old fecal matter and shed skins throughout the cage; the tegu lizard cage had old feces; all in violation of rule 68A-6.0023(5)(d), which requires fecal material to be removed daily, and rule 68A-6.0023(5)(e), which requires hard floors within cages or enclosures to be cleaned a minimum of once weekly; The kinkajou was still housed in the bird cage, which was too small; there was no water or food present; the floor of the cage was covered in old fecal matter; and Petitioner admitted that the cage had not been cleaned in four days. These conditions violated rule 68A-6.0023(5)(b) and (c), which requires the animals to be provided clean drinking water and food; The third bobcat was being housed inside Petitioner's house in a spare bedroom lacking a safety entrance as required by rule 68A-6.003(1)(a); the two doors leading into the room were hollow-core doors and not of sufficient strength, and there was no required wire or grating covering the windows, in violation of rule 68A- 6.003(3)(e), which requires potential escape routes to be equipped with wire or grating of not less than 11.5-gauge chain link or equivalent; Two skunks were housed in a spare bedroom that adjoined the bobcat cage room; the floor was covered in mainly old, but some new, smeared fecal matter; there were no water bowls; the bathroom window was open and only covered by the typical bug screen associated with household windows; all in violation of rule 68A-6.0023(5)(d), which requires cages and enclosures to be ventilated to prevent noxious odors, and rule 68A-6.003(3)(h), which requires the room to be constructed of materials of not less than 14-gauge wire or strength equivalent and the escape routes to be secured; Petitioner was unable to provide records of acquisition of any animals in her possession, as required by rules 68A-6.0023(6) and 68-5.001(3)(e).6.; and Petitioner's Critical Incident Disaster Plan was only partially completed, in violation of rules 68A-6.0022(7) and 68-5.001(3)(e)5. Each of these violations is substantiated by clear and convincing evidence. At the conclusion of the inspection, Petitioner was given another copy of the Commission's rules, with the violated rules highlighted; she was told how each infraction should be corrected; she was asked if she had any questions regarding the violations; and she was given another copy of the first inspection report. A new 30-day deadline was established for correcting all violations except the source of acquisition and critical incident plan, for which she was given 60 days to take corrective action. However, no follow-up inspections were made. Petitioner contends that if the follow-up inspection on July 28, 2014, was made later than 10:30 a.m., she would have had time to feed and water the wildlife and clean their cages. However, the amount and appearance of the feces, the presence of snake skins, and the appearance of dirty water bowls in the enclosures indicates that the enclosures had not been cleaned for an extended period of time. During the first inspection, Petitioner identified the source of acquisition of all wildlife, except the reticulated python. After the first inspection, Petitioner acquired a boa constrictor, two Macklot's pythons, four tegus, two carpet pythons, one gopher snake, one bull snake, four sulcatta tortoises, one blue tongue skink (lizard), and one Central American wood turtle. However, she was unable to produce acquisition paperwork for any captive wildlife. She blamed this on the fact that many of her wildlife were donated to her or purchased at exhibitions, apparently meaning that the names of the donors or sellers were unknown. Acquisition information is essential, as the Commission uses these records to combat the illegal trafficking of wildlife. Petitioner blamed many of the facility violations on a lack of financial resources and personal issues in her life that arose in 2014, leaving her with little time or resources to comply with Commission rules. She pointed out that an injury to one of the foxes required an expenditure of almost $2,000.00 in one month alone, which drained her resources; her father was diagnosed with a terminal illness and passed away a short time later; and her fiancée required two surgeries, which prevented him from assisting her in caring for the wildlife. She also testified that she was working 60-hour weeks as a tattoo artist to support herself, which left very little time to care for the wildlife. Given these time constraints, it is surprising that she continued to acquire even more wildlife after the first inspection was made. While Petitioner maintains that the exhibition and sale of animals is intended to support her facility, it is apparent that whatever money was generated by that activity is insufficient to adequately care for the wildlife. In sum, Petitioner contends that many of the violations are unwarranted or simply technical violations of the rules, or other circumstances prevented her from taking corrective action and maintaining the facility in accordance with Commission rules. The evidence belies this contention. Although the Commission presented evidence of alleged violations of United States Department of Agriculture rules observed during an inspection by that agency on June 30, 2015, for which warnings were issued, these violations were not cited in the Notice of Denial as a basis for denying the applications and have been disregarded by the undersigned. See, e.g., Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31, 34 (Fla. DCA 1993)(matters not charged in an administrative action cannot be considered as violations). Likewise, Petitioner's contention that the Commission failed to act on her applications within 90 days, raised for the first time during her testimony, has been disregarded as being untimely. See also § 120.60(1), Fla. Stat. Although each infraction noted during the second inspection constituted a violation of state law, a criminal citation for only three violations was issued and reported to the local State Attorney's Office. These included a failure to correct the violations noted during the February inspection; maintaining captive wildlife in unsanitary conditions; and improper caging for Class II wildlife. However, the State Attorney decided to prosecute Petitioner for all violations. On July 28, 2014, criminal charges were filed in County Court. On advice of her counsel, on April 24, 2015, Petitioner pled guilty to all charges and was adjudicated guilty of maintaining captive wildlife in unsanitary conditions in violation of section 379.401(7). Besides having a fine imposed, Petitioner was placed on probation for six months and required to perform community service. Under the terms of her probation, she was ineligible to possess Class I or II wildlife for the duration of her six-month probation period. Just before her criminal case was concluded, Petitioner filed applications to renew her licenses. A major impediment to approving them is a Commission rule that requires denial of an application if the applicant has been adjudicated guilty of a violation of any provision of chapter 379. See Fla. Admin. Code R. 68-1.010(2). The same rule provides, however, that denial is not automatic, as the Commission is required to consider nine factors when determining whether to approve or deny an application. See Fla. Admin. Code R. 68-1.010(5)(a)- (i). After considering each relevant factor, the Commission issued its Notice of Denial on June 11, 2015. Petitioner then requested a hearing. Petitioner unquestionably cares for wildlife and would never intentionally harm them through inattention or lack of care. However, due to personal and financial issues, and full- time employment outside her home that consumes much of her time, she is unable to comply with Commission rules for operating a captive wildlife facility. There is clear and convincing evidence to support the Commission's denial of the applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife and Conservation Commission enter a final order denying Petitioner's applications for Class II and III Wildlife licenses. DONE AND ENTERED this 26th day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2016. COPIES FURNISHED: Eugene Nichols "Nick" Wiley, II, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Rachel Arnott 8520 Sioux Trail Kissimmee, Florida 34747-1531 (eServed) Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (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 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 issues are whether the Correctional Certificate issued to the Respondent by the Criminal Justice Standards and Training Commission (the Commission), should be revoked or otherwise disciplined on charges stated in the Petitioner’s Amended Administrative Complaint,1/ FDLE case 40421.
Findings Of Fact The Respondent was certified as a correctional officer by the Commission on July 12, 2006. The parties stipulated that the Respondent holds Correctional Certificate 258546. (The Amended Administrative Complaint alleges he holds Correctional Certificate 25846.) On the afternoon of March 7, 2016, the Respondent was observed and videoed by a neighbor mistreating his dog. Specifically, the neighbor looked out her front window and saw the Respondent outside his house apparently bathing his dog, which was a large German shepherd. She could hear the Respondent’s nine-month-old child crying. She thought the child was standing behind a screen door. While she was watching, the dog got away from the Respondent and trotted toward the front door. The Respondent went after the dog, angrily grabbed it by the head and tail, lifted it off the ground several feet (to about waist-high), and slammed it down on the concrete walkway. He repeated the body slam and then brought the dog back to where he was washing it. At that point, the neighbor decided to video the Respondent and his dog with her cell phone. The video recording shows the Respondent pulling up on the dog’s tail and punching the dog in the side. Then, the Respondent shortened the dog’s leash by wrapping it several times around his hand until his hand was near the dog’s collar. Then, he flipped the dog over on its side by suddenly and violently jerking the leash and collar. After the neighbor witnessed the Respondent’s mistreatment of his dog, she reported him to the Polk County Sheriff’s office. A sheriff’s detective responded on March 21, 2016, and questioned the Respondent, who stated, “I guess I lost my temper that day.” The detective requested permission to remove the dog from the Respondent’s home to be examined by a veterinarian as part of an animal cruelty investigation, and placed in an animal shelter. The Respondent willingly surrendered the dog. The veterinarian who examined the dog found it to have soft tissue trauma at the base of its tail, but no fractures or broken bones. The veterinarian explained that a dog’s tail is an extension of its spine, and an injury at or near the base of the tail could have resulted from yanking the tail, or from lifting the dog by the tail, which is not designed to bear weight. The Respondent’s dog weighed about 77 pounds, and the tail would have been supporting about half the dog’s weight the way the Respondent was handling it. The veterinarian found that the dog had a temperature, and blood tests showed a high white blood cell count. Both symptoms are consistent with either inflammation from an injury, or an infection. The dog also had elevated kidney values, which could be consistent with an injury to the kidney, or with an infection. The veterinarian testified that she prescribed pain medication for the dog. The sheriff’s detective believed that antibiotics were prescribed. No other significant injuries to the dog were found, but the veterinarian recommended that the dog not be returned to its owner. The Respondent did not object. At the hearing, the Respondent testified that just prior to the incident, his dog had been acting aggressively toward his child and had bitten the Respondent in the hand. He testified that he hoped the dog would calm down if taken outside to be bathed. He claimed that the dog was growling and acting aggressively toward him. He testified that he was afraid for his child’s safety when the dog got away from him and ran toward the door. He testified that his child actually was standing behind a child’s gate at the door, not behind a screen door, as stated by his neighbor. The neighbor disputed that the dog was acting aggressively while she was watching. She testified that the dog trotted to the front door with its tail wagging when it got loose from its owner during the bath. The video recording showed that the dog was not acting aggressively but was submissive while being manhandled by the Respondent. The Respondent admits that the dog did not try to bite him during his manhandling of the dog, and no growling (or much sound at all) could be heard on the video recording. The Respondent’s claims about his dog’s aggression and his concerns about his daughter’s safety were not reported to the sheriff’s detective on March 21, 2016, or to anyone else before the hearing. Even if the neighbor was mistaken in thinking the Respondent’s child was standing behind a screen door, the rest of her unbiased testimony is credited as more worthy of belief than the Respondent’s self-serving testimony, to the extent of any conflict. Taken as a whole, the evidence was clear and convincing that the Respondent’s treatment of his dog was inhumane and unnecessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission find the Respondent guilty of failing to maintain good moral character by acts violating section 828.12(1); suspend his correctional certificate for 60 days, or until completion of a Commission-approved course in anger management, whichever is later; and, upon reinstatement of his certificate, place him on probation for one year, conditioned upon maintaining good moral character, as defined by rule 11B-27.0011(4)(b). DONE AND ENTERED this 4th day of October, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 4th day of October, 2018.
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to chapters 455 and 474, Florida Statutes. At all times material to this proceeding, Respondent Philip J. Aleong has been licensed as a veterinarian in the State of Florida, having been issued license number VM 6466. Respondent obtained his veterinary degree from Tuskegee University in 1994, and began to practice veterinary medicine in Florida the same year. In 1996, Respondent moved to Maryland, where he was employed at a race course for approximately two years. Respondent returned to Florida in 1997 or 1998, where he has continued to practice veterinary medicine. From the evidence adduced during the final hearing, it appears that much of Respondent's practice involves the provision of prophylactic, pre-race medical services to thoroughbred racehorses. Prior Misconduct Relevant to Respondent's Second Affirmative Defense On September 14, 2006, Petitioner filed an administrative complaint that alleged, in part, that Respondent failed to maintain radiographs and other records related to a pre-purchase examination of racehorse "C. Brooke Run," which was conducted in April of 2003 at the Ocala Breeders' Sale. Pursuant to Respondent's request for a formal hearing to contest the allegation, the matter was referred to DOAH in May 2007 and assigned Case No. 07-2415. On April 2, 2008, following the conclusion of the proceedings at DOAH, Petitioner entered a Final Order reprimanding Respondent, placing his license on probation for six months, and imposing a $1,000 fine.5 The Instant Complaint On or about March 14, 2006, Petitioner6 served Respondent with six subpoenas duces tecum, which directed him to produce all documents or other veterinary records concerning the following racehorses: "Musical Beat," "Orlik," "Suave Prince," "Fast Tracker," "Dondoca," and "Bolido." Subsequently, on May 30, 2006, Respondent provided the requested documents, which related to veterinary services provided to the horses on various dates during 2004 and 2005. Three months later, on August 25, 2006, an investigative report was completed and forwarded at some point thereafter to Petitioner's legal department. Subsequently, on January 4, 2008, Petitioner filed an Administrative Complaint against Respondent that is the subject of this proceeding. Although Respondent filed an Election of Rights form on February 4, 2008, which requested a formal administrative hearing, the matter was not referred to DOAH until April 30, 2010. Petitioner's sole witness at the final hearing in this cause was Dr. Faith Hughes, who was accepted by the undersigned as an expert in the field of veterinary medicine. Dr. Hughes testified that at the request of the Department, she had examined the medical records provided by Dr. Aleong to determine if they complied with the requirements of section 474.214(1)(ee) and Florida Administrative Code Rule 61G18-18.002. Dr. Hughes opined, and the undersigned agrees, that the records of six horses suffered from various deficiencies, which included: "Musical Beat": Medications were administered, but the frequency was not specified for any of the drugs. In addition, while blood work was done, the records fail to indicate why blood was drawn or what the result was. "Orlick": Medications were administered, such as Bactrim, but no amount or frequency was indicated. "Suave Prince": Penicillin and other medications were administered, but no amount or frequency was recorded. "Fast Tracker": Although the records indicate that blood work and radiographs were taken, no results were documented. Further, it could not be determined from the November 15, 2004, record if Depo Provera or Depo Medrol was administered, as the record merely indicates the abbreviation "DEPO." In addition, the records failed to demonstrate the frequency the various drugs were administered. Finally, while blood work was done, the records contain no results. "Dondoca": With respect to each medication administered, which included Bactrim and Cortisone, there was no indication as to the dosage or frequency. "Bolido": Medications were administered, but the amount and frequency were not documented with respect to each. Further, the records indicate that radiographs were taken, but no findings were documented. In his defense, Respondent presented the testimony of Dr. Joseph Zerilli, who was accepted by the undersigned as an expert in veterinary medicine. Dr. Zarelli opined that the records concerning each of the horses contained sufficient information to comply with the applicable statute and rules. Similarly, Respondent testified on his own behalf that the records relating to each of the horses were adequate. The undersigned is not persuaded by the testimony of Respondent or Dr. Zarelli on this point. However, Respondent testified, credibly, that no animal was harmed, nor was the public endangered, as a result of the alleged recordkeeping violations in this matter. Respondent further testified, and the undersigned accepts as true, that negative action against his license (i.e., suspension or revocation) would detrimentally affect his livelihood. Ultimate Findings The undersigned accepts Dr. Hughes' testimony as detailed in paragraph ten of this Recommended Order and finds, as a matter of ultimate fact, that Respondent violated section 474.214(1)(ee).7 Respondent has failed to prove his first affirmative defense, wherein he alleges that Petitioner is arbitrarily and selectively applying its rules against him based in part on his race. No evidence was adduced by Respondent to demonstrate that Petitioner has declined to prosecute similarly situated persons (i.e., veterinarians accused of inadequate recordkeeping). Respondent also failed to demonstrate that the instant charge should have been brought in an earlier administrative proceeding, and as such, there is no showing that Petitioner impermissibly engaged in a "splitting of the action." Accordingly, Respondent's second affirmative defense is rejected. With respect to his third affirmative defense, Respondent demonstrated a substantial delay in the prosecution of this matter that violated the requirements of section 455.25(4), Florida Statutes. However, this affirmative defense is also rejected, as Respondent was unable to demonstrate that the delay resulted in prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding that Dr. Phillip J. Aleong violated section 474.214(1)(ee), Florida Statutes. It is further recommended that the Board issue a letter of reprimand, place Dr. Aleong's license to practice veterinary medicine on probation for a period of six months, and require that he pay a fine of $1,500.00, as well as $203.74 for the costs of investigation,10 within 90 days of the entry of the final order. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 29th day of December, 2010.
The Issue Whether statements issued by the Respondent's employees constitute unpromulgated rules in violation of Section 120.54(1)(a), Florida Statutes (2007). Whether Florida Administrative Code Proposed Rule 5C- 27.001, incorporating a form is an invalid exercise of delegated legislative authority.
Findings Of Fact The following are the stipulated facts (verbatim) as agreed by the parties: In November and December 2005, Division of Animal Industry inspectors conducted inspections of various pet facilities located throughout Florida and found 11 violations regarding OCVIs. Dr. Thomas J. Holt, D.V.M., State Veterinarian and Director of Animal Industry, is signatory on a July 2006 Memorandum directed to "All Florida Veterinarians," which purports to provide "guidelines and reminders" to veterinarians regarding the issuance of OCVIs pursuant to Section 828.29, Florida Statutes. The memorandum is attached as Exhibit A. Respondent does not license or regulate veterinarians in Florida. Respondent does not maintain a database of veterinarians licensed or located in Florida. The United States Department of Agriculture (USDA) maintains a database of USDA-accredited veterinarians. The July 6, 2006, memorandum was provided by Respondent to the United States Department of Agriculture. Respondent asked for the assistance of the United States Department of Agriculture to distribute the July 6, 2006, memorandum to all USDA-accredited veterinarians located in Florida. The July 6, 2006 memorandum was challenged by Petitioners as an unpromulgated rule on April 2, 2007. The Respondent agency published a Notice of Proposed Rule in the Florida Administrative Weekly on July 6, 2007, to adopt the Official Certificate of Veterinary Inspection for Intrastate Sale of Dog or Cat (OCVI form) as a rule. On May 15, 2007, the Department conducted a "Pet Certification Rules Workshop" regarding proposed changes to the OCVI. Current form DACS-09085, Official Certificate of Veterinary Inspections for Sale of Dog or Cat, was adopted by Florida Administrative Code Rule 5C-24.003, in 1999. This rule is currently in effect. A statement of Department Employee Diane Fuchs was recorded, and such statement is attached hereto as Exhibit B. None of the Petitioners have filed complaints with Respondent concerning any of the allegations contained in Petitioners' Request for Administrative Hearing or Amended Request for Administrative Hearing. The following facts are from the materials noted above: The "Exhibit A" memorandum referenced above that was signed by the Department's State Veterinarian/Director of the Division of Animal Industry stated on its face, "This fax is being sent by the Florida Veterinary Medical Association at the request of the State Veterinarians Office." The memorandum provided, in pertinent part: TO: All Florida Veterinarians SUBJECT: OCVI for Sale of a Dog or Cat Dear Florida Veterinarian: Recent audits of Official Certificate of Veterinary Inspection's (OCVI) for Sale of a Dog or Cat by the Division of Animal Industry (DAI), Florida Department of Agriculture and Consumer Service (FDACS) shows an increasing number of violations related to the use and issuance of such certificates by veterinarians. Each violation compromises the integrity of the certificate. Previously violations were handled via personal communication and/or written correspondence with the veterinarian outlining the violation and recommended actions on how to correct them. Beginning July 1, 2006, the DAI will implement enforcement of such violations via Administrative Fine Procedure. For this reason, we are reminding veterinarians of the seriousness of this issue and are providing the following guidelines and reminders: Veterinarians are responsible for the security and proposed use of all OCVI's and must take reasonable care to prevent misuse of them. Reasonable care means that the veterinarian must retain all copies of the OCVI until he or she has inspected the animal and fully completed and signed the document(s). Incomplete, blank, or unsigned OCVI books or certificates cannot be sold to, or be in the possession of, a pet seller whether they are a breeder, broker, or retail pet store. Possession by a seller of incomplete or unsigned OCVI or of OCVI books compromises the integrity and security of the documents for which the veterinarian is responsible. The issuing veterinarian's statement certifies that the vaccines, anthelmintics, and diagnostic tests were administered by or under the direction of the issuing veterinarian. The manufacturer, type, lot #, expiration date, and date of administration must be detailed in the appropriate blocks of all OCVI. Vaccinations and/or anthelmintics administered by anyone other than the issuing veterinarian must be confirmed and documented before listing them on the OCVI. "Vaccines given by breeder" is not an acceptable entry unless the vaccinations were administered by or under the direction of the issuing veterinarian who has personal knowledge that such vaccines were actually administered to the animal identified on the OCVI. OCVI should not be issued for a dog or cat that has been found to have internal or external parasites, excluding fleas and ticks. This includes, but is not limited to, coccidian and/or ear mites. The dispensing of medicine to be administered by the owner for treatment is not sufficient for the veterinarian to issue the OCVI. Such animals must be treated and be negative before the sale can occur. The statement attributed to Diana Fuchs (noted as Exhibit B above) was: You're correct because the Veterinary Practice Act seeks supervision and it clearly defines supervision. The pet law does not state "supervision," it says "direction." It doesn't say whether it's direct supervision, it says "direction." As an employer, you can direct an employee to do something. By and through the rule making process previously described the Respondent sought to promulgate a rule (5C-27.001) that by reference adopts and incorporates form DACS-09085, the OCVI for Intrastate Sale of Dog or Cat Revised in July 2007. The OCVI form provides, in part: ISSUING VETERINARIAN'S CERTIFICATION: I hereby certify that the described animal was examined by me on the date shown; that the vaccines, anthelmintics, and diagnostic tests indicated herein, were administered by me, or under my direction; said animal is found to be healthy in that to the best of my knowledge it exhibits no sign of contagious or infectious diseases and has no evidence of internal or external parasites, including coccidiosis and ear mites, but excluding fleas and ticks; and to the best of my knowledge the animal has not been exposed to rabies, nor did the animal originate from an area under a quarantine for rabies. The Petitioner's First Amended Request for Administrative Hearing provided: This petition is filed on behalf of The Humane Society of the United States ("The HSUS"). The HSUS is a nonprofit animal protection organization headquartered in Washington, (sic)DC. The HSUS Southeastern Regional Office is at 1624 Metropolitan Circle, Suite B Tallahassee, FL 32308. The HSUS is the largest animal protection organization in the United States, representing over 9.5 million members and constituents, including more than 500,000 members and constituents residing in Florida. For decades the HSUS has been actively involved in educating the general public regarding the persistent health and behavioral problems that are common among puppies marketed by retail pet stores. This suit is bought [sic] on behalf of the HSUS and its Florida members. The HSUS investigates puppy mill and pet store cruelty complaints and offers its members, constituents and the general public guidance and advice as to how to select healthy, well bred puppies. By ensuring that puppies sold in retail pet stores actually receive the statutorily mandated vaccines and antelmintics, the health and welfare of puppies will be improved. Further, by eliminating from sale puppies that harbor potentially dangerous zoonotic diseases, not only is the public health protected but breeding facilities where the puppies originate and the pet stores that market the puppies have incentive to improve the often overcrowded and unsanitary conditions to which causes the puppies to be infested with internal parasites. A recent email survey revealed that more than 70 HSUS constituents have purchased puppies from Florida pet stores. This petition is also filed on behalf of Richard and Sharon Chambers, 5920 Our Robbies Rd., Jupiter, FL 33458. The Chambers purchased two puppies from Precious Puppy in Jupiter, Florida, and were provided OCVI's, signed by Dr. Dale Mitchell, DVM, but stamped with the statement "Original Vaccines Done by Breeder or Breeder's Veterinarian." Accordingly, the Chambers cannot verify if the vaccines indicated on the health certificate, and "certified" by Dr. Mitchell, were actually administered to their puppies. One of the puppies developed kennel cough, in spite of supposedly having been vaccinated against it. The kennel cough progressed to pneumonia and required emergency veterinary care. This petition is also filed on behalf of Miriam Barkley, who lives at 600 SW 13th Avenue #7, Ft. Lauderdale, FL 33312. Ms. Barkley purchased a Yellow Labrador Retriever puppy from Puppy Palace in Hollywood, Florida and was provided an OCVI. At 13 weeks of age the puppy has bilateral hip dysplasia with severe right sided coxal subluxation and will require thousands of dollars worth of surgery, if she is even a candidate for the surgery. Otherwise she must be euthanized. In spite of the requirement that each pet dealer provide consumers with a certificate of veterinary inspection signed by a veterinarian that certifies that "the animal was found to have been healthy at the time of the veterinary examination" the OCVI she was provided contains no such certification. This petition is also filed on behalf of Sheree Thomas, 874 Hibiscus Street, Boca Raton, FL 33486. Ms. Thomas was sold a puppy by Puppy Palace of Boynton Beach, and was given an OCVI upon which the attesting veterinarian's signature had been forged. Her puppy contracted distemper, a contagious disease for which the puppy had supposedly been vaccinated. Petitioner Connie Crews purchased two puppies from Puppy Palace in Hollywood, FL. One puppy, Trinity, suffered kennel cough that developed into severe bronchial pneumonia for which she was hospitalized. Petitioner Connie Crews incurred more than $4,000 in veterinary expenses saving Trinity's life. The other puppy, Neo, also had kennel cough, and suffers a bone defect in both shoulders. Petitioner Crews was provided an OCVI with each puppy, indicating that the puppies had been vaccinated for kennel cough. However, the OCVIs were not signed by the attesting veterinarian, Dr. William Rasberry, DVM, but rather had been stamped with a signature stamp which had been provided to the pet store. For purposes of this order the foregoing allegations have been deemed true or accurate. No evidence or stipulations of fact regarding the Petitioners was presented.
The Issue Whether Petitioner is entitled to an award of attorney's fees as a prevailing small business party in an adjudicatory proceeding initiated by a state agency as provided under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, A.S., is the primary custodial parent of the child, A.S., who is now ten years old. At the time of the original incident, A.S. was a full time state wildlife law enforcement officer. On May 18, 1991, Respondent initiated a child protective services investigation in which resulted in the creation of FPSS Report 91-052785, wherein the Respondent proposed to confirm Petitioner as the perpetrator of abuse or neglect of his child. Petitioner requested and obtained a formal hearing before the Division of Administrative Hearings. This resulted in the issuance of a Recommended Order, dated February 28, 1992, wherein this Hearing Officer recommended that Petitioner's name be expunged from the Abuse Registry. The Respondent rejected the recommendation and issued a Final Order denying Petitioner's request for expungement. The Final Order was appealed to the Second District Court of Appeal and subsequently to the Supreme Court of Florida which reversed the Final Order of the Department. On remand from the Court, the Department issued a Final Order on Remand, dated January 20, 1995, which expunged Petitioner's name from the Abuse Registry. Petitioner is clearly the prevailing party in this matter.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as amended, by committing unlawful employment practices against Petitioner.
Findings Of Fact Petitioner is an African-American male who was born on April 25, 1943. He received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a Doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to his job applications, Petitioner worked for the U.S. Department of Commerce, National Marine Fisheries Service, from June 1965 until April 1994. He worked in various positions, including "survey statistician," "operations research analyst," "fishery research biologist as chief of turtle headstart," "fishery technician/biologist," and "Equal Employment Opportunity Counselor." From July 28, 1995, until July 6, 1998, Petitioner was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner is currently employed at Daytona Beach Community College in an unknown position. Petitioner filed his Charge of Discrimination with FCHR on September 2, 1997, indicating that the most recent or continuing act of alleged race, age, or sex discrimination occurred on August 11, 1997. Alleged acts of discrimination that occurred more than 365 days prior to the filing of the Charge of Discrimination cannot be considered here. See Section 760.11(1), Florida Statutes. Petitioner received letters from Respondent prior to September 2, 1996, informing him that he would not be hired for the following positions: (a) position No. 543 (Job Opportunity Announcement (JOA) #005-6) position filled by Laura Richards with hire date effective March 1, 1996, Petitioner's rejection letter dated April 5, 1996; (b) position Nos. 213 and 956, positions filled by Robert Guerra and Jacklyn Gilmore, respectively, both with effective hire dates of March 29, 1996, Petitioner's rejection letter dated April 3, 1996; and (c) position No. 1099, position filled by Lorraine Heisler with hire date effective May 10, 1996, Petitioner's rejection letter dated April 8, 1996. Therefore, employment decisions regarding these positions are not at issue here. Petitioner applied for and was rejected for the following position numbers after he filed his Charge of Discrimination with FCHR: (a) position Nos. 1161 and 1162, positions filled, Petitioner's rejection letter dated February 16, 1999; (b) position No. 1160, position filled, Petitioner's rejection letter dated March 15, 1999; (c) position No. 918, position filled, Petitioner's rejection letter dated June 4, 1998; (d) position No. 966, position filled, Petitioner's rejection letter dated August 27, 1998; and (e) position No. 859, Petitioner's application faxed to Respondent on June 29, 1998, Petitioner's rejection letter not in record. There is no evidence that FCHR's investigation of Petitioner's Charge of Discrimination and the resulting Determination of No Cause included the employment decisions associated with these positions. Therefore, they are not at issue here. There is no evidence that Petitioner ever applied for position No. 671. Accordingly, that position number is not at issue here. The employment positions at issue here are as follows: (a) position No. 543 (JOA #047-7, Issue Date July 16, 1997), no evidence regarding employment decision, no rejection letter in record; (b) position No. 1071, position filled by Dwight Myers with effective hire date of July 11, 1997, Petitioner's rejection letter dated June 30, 1997; (c) position No. 869, position filled by Forrest Marchinton with effective hire date of March 3, 1997, Petitioner's rejection letter dated February 13, 1997; (d) position No. 2503, position filled by Gil McRae with hire date of March 24, 1997, Petitioner's rejection letter not dated; and (e) position No. 878, Petitioner submitted a resume but no application for this position; Petitioner's alleged rejection letter dated August 11, 1997, is not in record. When Respondent desires to fill a vacant position, it requests the Department of Management Services (DMS) to publish a Vacancy Announcement, which provides a short summary of information regarding that position. The Vacancy Announcement contains the "bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and Respondent's contact person. When Respondent desires to fill a vacant position, it publishes a JOA, listing, among other things, the minimum qualifications and a description of job duties for the position. The JOA instructs applicants to submit a separate application for each position sought and to include the appropriate class title and position number. The JOA directs applicants to submit a completed State of Florida Application form to a named contact person. The State of Florida Employment Application directs applicants to "[l]ist the knowledge, skills, and abilities that [the applicant] will bring to the job." The application advises applicants to refer to the JOA or listed contact person to determine those specific requirements. For each established career service position, DMS and the applicable state agency create a Career Service Position Description (CSPD), which lists in great detail the job's duties and responsibilities. DMS and the agency maintain copies of the CSPD. When Respondent intends to fill a vacant position, it develops a Selection Criteria Form. This form sets forth the essential and preferred selection criteria based on the required knowledge, abilities, and skills for the position. Respondent uses the Selection Criteria Form to screen job applications, rank the applicants, and determine which applicants Respondent will interview. At hearing, Respondent's staff testified that it is required to interview the selected applicant. This testimony does not mean that Respondent may select an applicant before interviewing him or her. Likewise, this testimony does not mean that Respondent must select an interviewed applicant. Respondent may interview one or more applicants. After Respondent completes the interview process, it may select one of the interviewed applicants to fill the vacant position. Pursuant to DMS rules, Respondent cannot select an applicant that has not been interviewed. After Respondent selects the applicant most qualified for the vacant position, it prepares a Recruitment Report. This report identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the Respondent's reasons for determining that non-selected candidates are less qualified in comparison to the selection criteria. Position No. 543 Respondent initially advertised position No. 543, Biological Administrator I, in JOA #005-6. Petitioner applied for the position, but Laura Richards, a former FMRI employee, was better qualified for the job. Ms. Richards' effective hire date was March 1, 1996. Petitioner subsequently received Respondent's April 5, 1996, letter advising him that he was not selected for the position. All of this occurred more than 365 days prior to the date that Petitioner filed his Charge of Discrimination and is not at issue here. Ms. Richards vacated position No. 543 sometime after Respondent offered her the position. In the meantime, Petitioner had a conversation with Toby Harris, Respondent's Chief of Personnel in 1997. The conversation focused on the selection process for Respondent's established positions. In the conversation, Petitioner expressed his concern regarding his failure to be interviewed for positions when he had a Doctorate in a biological science area and selected candidates only had a Master of Science (M.S.) degree. Mr. Harris did not tell Petitioner that Respondent was targeting candidates with M.S. degrees. Instead, Mr. Harris indicated that he would ask Respondent's Division of Wildlife to interview Petitioner to determine whether he had relevant background qualifications not reflected on an application. Mr. Harris also agreed to add Petitioner's name to the mailing list for JOAs. In a letter dated August 8, 1997, James R. Schuette, one of Respondent's regional wildlife biologists, sent Petitioner two JOAs. One of the JOAs was for position No. 671, for which Petitioner never applied. The other JOA (#047-7, issued July 16, 1997) was for position No. 543. Petitioner applied for position No. 543 (JOA #047-7). Respondent offered to interview Petitioner and set up a date and time for the interview. However, Petitioner was unable to attend the interview because of transportation problems. Petitioner eventually advised Respondent that he was withdrawing his application for position No. 543. Consequently, there is no letter advising Petitioner that he was not selected for position No. 543. Moreover, the record contains no evidence as to whether Respondent ever filled position No. 543 or continued to seek applicants for that position. There is insufficient evidence on which to base a finding that Respondent discriminated against Petitioner in making an employment decision relative to position No. 543. Position No. 1071 Petitioner applied for position No. 1071, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 1071 are set forth as follows in the JOA: Develops and implements management plans for Lake Placid Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 1071. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. Wildlife is defined as land-based mammals and birds. Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes. When hiring for the position of Biological Scientist III, Respondent focuses on an applicant's knowledge, skills, and abilities in performing wildlife population surveys and inventories, working hunter check stations, collecting biological samples from wildlife and upland mammals and game birds, and interacting with the public in exchanging information pertinent to wildlife. Respondent looks for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 1071, states as follows in relevant part: Area Responsibilities: Duties and responsibilities include the direct involvement in the development and implementation of management programs for the KICCO Wildlife Management Area. . . . Management Planning: Duties and responsibilities include coordination of the development and periodic revision of long-range, comprehensive management plans for the KICCO Wildlife Management Area. . . . Program Development: Duties include supervision, coordination and direct involvement in projects to accomplish management of wildlife, timber, range and water resources. The job includes the following responsibilities: Collection of biological data to evaluate wildlife population numbers and fluctuation and land responses to habitat management. Accomplishment of work in Commission-planned activities such as controlled burning, roller chopping, wildlife food-plot planting, public hunt management, etc. . . . Providing wildlife related recreational opportunities including consumptive and nonconsumptive [sic] uses where appropriate. . . . Supervision of one Biological Scientist II and occasional assistance with program development on the Arbuckle and IMC Wildlife Management Areas. * * * Technical Assistance: Duties and responsibilities include providing technical guidance to private citizens or other governmental agencies in wildlife or associated land management programs. Information - Education: Duties and responsibilities include developing programs to disseminate information on wildlife management, environmental awareness, and related subjects. . . . Endanger [sic] and Exotic Species: Duties and responsibilities include identification and protection of endangered species and habitats. Documents and recommends eradication programs for exotic plant species that endanger native habitat. Petitioner was not interviewed for position No. 1071. His application did not indicate that he had the required training and experience in wildlife management. There were 41 applicants for position No. 1071, including 26 males and 15 females. Seven of the applicants were known to be minorities, including two black males. Respondent interviewed four males and one female. One of the interviewed males was known to be of Asian or Pacific Island descent. The individual that Respondent selected for position No. 1071 was Dwight Myers, a white male, age unknown. Mr. Myers' effective hire date was July 11, 1997. Mr. Myers' education and experience exceeded the minimum qualifications for the job. Mr. Myers was more qualified for the position than Petitioner because of his training and experience in wildlife management. Petitioner received a non-selection letter dated June 30, 1997, for position No. 1071. Petitioner was not hired because he lacked the preferred experience and education in wildlife management. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 1071. Position No. 869 Petitioner applied for position No. 869, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 869 are set forth as follows in the JOA: Develops and implements management plans for the Osceola Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 869. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. As stated above, Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes, and not with land-based mammals and birds. When hiring for position No. 869, Petitioner focused on the same knowledge, skills, and abilities as when hiring for position No. 1071. Respondent was looking for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 869 states as follows in relevant part: WILDLIFE MANAGEMENT AREA RESPONSIBILITIES PUBLIC HUNTING AND RECREATION Plan, implements and directs activities required for managing all public hunts on the Osceola, Bienville-PC Phosphate, Lake Butler an Cypress Creek WMAs. Hires, trains and supervises eight to ten seasonal employees; moves check stations to operational locations; collects biological data at check stations; disseminates information about wildlife to the public . . POPULATION MONITORING, MANAGEMENT AND BIOLOGICAL SAMPLING Database Management - Maintains detailed databases and up-to-date summary tables of all species monitored and all wildlife management activities on areas. Conducts sophisticated data analyses and develops Annual Management Reports. Wildlife Population Monitoring - Develops, administers and conducts surveys for monitoring and documenting population levels and status of selected game, migratory, threatened and endangered, and selected nongame [sic] species. Conducts annual population surveys for white-tailed deer, bobwhite quail and bobcats. Wildlife Population Management - Uses results of the population monitoring and analyses to develop options and recommendations to manage the population of species monitored. Actions could take the form of either regulatory or habitat management. Biological Sampling - Plans, directs and participates in the collection of biological samples for both live and hunter-harvested animals. Analyses those samples and provides reports summarizing the findings and conclusions. Specialized knowledge of collection procedures is required. Research - Coordinates wildlife research projects that may be conducted on the areas. This includes the live capture of wild animals and collection and maintenance of accurate records. . . . Analyzes large data bases to determine correlations and relationships with environmental factors and management actions. FACILITIES Maintenance and Habitat Management * * * Technical Assistance - Provides technical assistance to the US Forest Service regarding wildlife management including written comments on actions that will affect the quality of the habitat. Habitat Manipulation and Enhancement - Assists the US Forest Service with their habitat manipulation projects on Osceola WMA when time permits. Petitioner was not interviewed for position No. 869. His application did not indicate that he had any wildlife training or experience. There were 99 applicants for position No. 869, including 77 males and 22 females. Fourteen of the applicants were known to be minorities, including three black males and one black female. Respondent interviewed one white male and one male of Indian descent. The individual that Respondent selected for position No. 869 was Forrest Marchinton, a white male, age unknown. Mr. Marchinton's effective hire date was March 3, 1997. There is no specific evidence regarding Mr. Marchinton's education and experience for the job. However, there is evidence that all persons selected for wildlife biologist positions had education and experience in wildlife/environmental science. Petitioner received a non-selection letter dated February 13, 1997, for position No. 869. Petitioner lacked the preferred experience and education in wildlife management or ecology for the job. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 869. Position No. 878 Petitioner did not file a completed application for position No. 878, Biological Scientist IV. He only filed a resume. The application deadline for JOA #029-7 was July 7, 1997. Petitioner testified that he received a non-selection letter from Respondent on August 11, 1997. That letter is not in evidence. The JOA for position No. 878 states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and three years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and two year's of professional biological experience as described above; or a doctorate in one of the biological sciences. Prefer: Experience in geographic information systems, especially ARC/INFO, ARC VIEW, ERDAS IMAGE, and UNIX. The duties for position No. 878 are set forth as follows in the JOA: Obtains information, such as known occurrences of rare species of fish and wildlife, and ancillary data such as political boundaries, public land boundaries, soils, land cover, roads, hydrology, land use, etc., from outside sources and import/convert the data for use in the GFC geographic information system (GIS). Reviews scientific literature to obtain information on species requirements. Serves as the systems administrator for the GIS networked computer system. Provides technical assistance to Commission biologists, other agencies, and the public in the form of digital data and/or hard copy maps of GIS data layers. The CSPD for position No. 878 states as follows: This is a professional position responsible for investigating and analyzing fish and wildlife population dynamics and ecology as they relate to existing and proposed restoration and management activities in the Lake Okeechobee-Everglades-Florida Bay system. Serves on interagency committees, as assigned, to ensure that fish and wildlife issues are adequately addressed during restoration and management efforts. Independently seeks out background information and makes contacts with experts in various related fields in order to address these issues competently. Conducts field inspections, as necessary, to document habitat condition and existing fish and wildlife resources. Drafts agency comments and policy for supervisory review. Keeps supervisor up to date on progress of projects and committees. Analyzes effects of past, current, and proposed restoration and management programs on the population dynamics and ecology of freshwater fish and wildlife species. Conducts field inspections to document habitat conditions and existing fish and wildlife resources of affected communities. Designs and conducts limited scientific monitoring and research projects on aspects of Everglades habitat restoration and management alternatives, and the response of fish and wildlife communities to habitat management actions. Prepares project reports and manuscripts for scientific publication and public presentation. Reviews development proposals that would affect the restoration of the Everglades system. This includes conducting field inspections to document habitat conditions and existing fish and wildlife resources of affected communities, and drafting agency comments and policy for supervisory review. Petitioner possessed the minimum qualifications for position No. 878, as set forth in the JOA. However, there is no persuasive evidence that Petitioner had the required experience in geographic information systems to perform the job. Likewise, Petitioner clearly did not have the training and experience to fulfill the specific responsibilities and duties of the job as set forth in the CSPD as they relate to freshwater fish and wildlife. Petitioner presented no evidence as whether Respondent ever filled position No. 878 or continued to seek applications for the job after sending Petitioner a rejection letter. Even if Respondent made such a selection, Petitioner presented no evidence as the race, age, or gender of the selected individual. There is no evidence that Respondent discriminated against Petitioner in making an employment decision in regards to position No. 878. Position No. 2503 Position No. 2503, Research Scientist, was advertised by DEP for FMRI in JOA #97-102 on January 6, 1997 with an application deadline of January 30, 1997. The JOA states as follows in relevant part: MINIMUM QUALIFICATIONS: A bachelor's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and five years of professional experience in one of the physical or natural sciences or mathematics; or a master's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and four years of professional experience as described above; or a doctorate from an accredited college or university with a major course of study in one of the physical or natural sciences or natural sciences or mathematics and two years of professional experience as described above. SPECIAL REQUIREMENTS: Prefer working knowledge of age-structured fisheries models, familiarity with SAS, dexterity with PCs, and knowledge of life history and ecology of marine fish species. * * * BRIEF DESCRIPTION OF JOB DUTIES: Develop single and multi-species assessments of Florida's East Coast fisheries integrating research on life history, fishery monitoring, ecological and habit surveys and human behavior. Develop mathematical techniques to accomplish the above duties. Prepares reports and manuscripts for resource managers. Participates in preparation of management plans. REQUIRED ENTRY-LEVEL KNOWLEDGE, SKILL(S), & ABILITIES: Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to: process and analyze data; produce technical reports and manuscripts; develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. The CSPD for position No. 2503 states as follows: Independently integrate data from directed research studies on the life history or population dynamics of marine fishes, fishery monitoring programs, ecological and habitat surveys and human behavior into single and multi-species assessments of Florida's East Coast fisheries issues. Monitor the status of selected marine fisheries and analyze how well Florida's management goals are being met. Independently design and test new mathematical techniques to accomplish the above duties. Keep current on relevant literature. Attend courses and workshops pertaining to mathematical analyses of fisheries data. Assist with the coordination and implementation of all fisheries research and monitoring programs. Assist with the design and testing of sampling techniques for fisheries programs. Prepare reports and peer-reviewed manuscripts on findings from the above analyses. Prepare stock assessments and special reports for Florida's marine resource managers. Review and evaluate reports, in the preparation of management plans for federal fisheries contiguous to Florida. Advise and assist other departmental, governmental, institutional, or private agencies in matters related to the above research. Participate in the public outreach efforts as appropriate. Assist in other Institute activities as requested. Knowledge, Skill(s), and Ability(ies): List any entry level knowledge, skill(s) or ability(ies) relating to this position including utilization of equipment. KSAs identified in this section are considered essential function(s). Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to process and analyze data; produce technical reports and manuscripts; and develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as essential knowledge, abilities, and skills: Knowledge of: population assessment techniques; simulation modeling; and statistics: Ability to: communicate effectively in writing and verbally; process, analyze, produce technical reports and manuscripts; develop presentation from scientific data; plan and coordinate research; and design and test sampling methods. Skill in the use of: a programming language; modeling software; and word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as preferred essential knowledge and skills: Knowledge of: age-structured fisheries models Skill in the use of: personal computers DEP had 51 applicants for this position. The agency interviewed six of the applicants. Five of the interviewed candidates were white. One candidate was of Asian descent. Five of the interviewed candidates were male. One was female. Two of the interviewed candidates were over the age of 40. Four of the candidates were DEP employees. Petitioner applied for this position but did not receive an invitation for an interview. DEP sent him an undated non-selection letter, which states that the position had been offered to an applicant whose overall background most closely fit the knowledge, skills, and abilities required for the position. Petitioner met the minimum qualifications set forth in the JOA for position No. 2503. Persuasive evidence indicates that he did not have the necessary training and experience to perform the specific assessment modeling techniques in order to perform the job. A white male and a white female, who were already employed by FMRI, were not interviewed for the same reason. DEP selected Gil McRae, an FMRI employee, for position No. 2503 with an effective hire date of March 24, 1997. Mr. McRae was a white male under the age of 40. He had a M.S. in Fisheries Statistics and more than enough professional experience to meet the minimum qualifications for the job. He had been an Associate Research Scientist with DEP for fifteen months. Of all the applicants, Mr. McRae had the most knowledge and the best skills and abilities to perform the duties and responsibilities of the position. There is no persuasive evidence that DEP discriminated against Petitioner in making an employment decision relative to position No. 2503. Finally, there is no persuasive evidence that Respondent's staff ever told Petitioner that he would not be considered for a job because he had a doctorate. He was never advised that an interview with Respondent equated to a job offer. Moreover, there is no persuasive evidence that Respondent or DEP changed job classifications or varied conditions of employment to discriminate against Petitioner based on his race, gender, or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 15th day of September, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Preston T. Robertson, Esquire Sharman H. Green, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this matter is whether Respondent practiced veterinary medicine without a license; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of veterinary medicine in Florida. See § 20.165(4)(a)13. and ch. 474, Fla. Stat. (2017). The Department brings this action alleging that Respondent engaged in the unlicensed practice of veterinary medicine in violation of section 474.213(1)(i), Florida Statutes (2015).3/ The Department specifically charges that Respondent, who does not hold a license as a veterinarian, used certain procedures to treat several horses, which constituted “veterinary medicine” as the term is defined in section 474.202(9). Respondent owns and operates Peak Performance Equine Dentistry. Respondent is not, nor has she ever been, licensed as a veterinarian in the State of Florida. As part of her “equine dentistry” services, Respondent “floats” horses’ teeth. “Floating” is the term used to describe filing or grinding down horses’ teeth to prevent overgrowth. Unlike humans, horses’ permanent teeth continue to grow throughout their lifetime. (Hence, the origin of the phrase “long in the tooth.”) Because of the manner in which horses chew, their teeth can develop sharp points and edges. Floating is the process of filing down those points to balance out or flatten the teeth. Floating helps horses masticate, as well as prevents tooth problems. Florida law specifically allows non-veterinarians to manually float teeth, i.e., with a hand-held file or rasp. See § 474.203(5)(b), Fla. Stat. However, only licensed veterinarians, or persons immediately supervised by a veterinarian, may float teeth using power tools. See § 474.203(7), Fla. Stat. Floating teeth by hand is a labor- intensive and lengthy process. Using a power tool, on the other hand, allows the practitioner more control over the filing process, as well as reduces the time needed to treat the teeth. On February 15, 2016, Tony King contacted Respondent to schedule an appointment for her to float the teeth of several of his horses. Mr. King learned of Respondent’s services through her advertisement for “equine dentistry” on the internet. On February 24, 2016, Respondent arrived at Mr. King’s barn at approximately 10:00 a.m. Mr. King identified nine horses whose teeth needed to be floated. Seven of the horses belonged to Mr. King. The other two horses were boarding at his barn. (None of the horses were owned by Respondent.) After unloading her equipment, Respondent proceeded to float the teeth of the first horse. She used a hand file and manually ground down the horse’s teeth. After Respondent floated the teeth of the first horse, she moved onto the second horse. Again, Respondent used a file and ground down the horse’s teeth by hand. However, Respondent soon found that the second horse was more difficult to treat. It became quite agitated as she worked on its teeth. Therefore, Mr. King decided to place a “twitch” on the horse’s nose. A “twitch” is a metal clamp that is strapped to the horse’s nose to calm it down and keep it under control. As Respondent continued floating, however, the horse suddenly reared up on its hind legs. When the horse descended, the twitch on its nose struck Mr. King on the left side of his face. Mr. King was knocked to the ground. He instinctively reached up to the wounded area. He felt that his eyeball had popped out of its socket and was resting on his cheek. (The eye was still attached to the optic nerve.) He impulsively shoved his eyeball back into the socket. When Mr. King gathered his wits, he quickly realized that he needed medical attention. He urged Respondent to continue working on the horses. Then, despite his blurred vision in one eye, he drove himself to a nearby surgery center where his wife was working. At the center, an eye doctor examined Mr. King and determined that his eye and vision issues would satisfactorily resolve themselves without treatment. (Mr. King did receive several stitches for a small cut under his left eye.) After his examination, Mr. King drove back to the barn returning approximately three hours later. At the barn, Mr. King was unsettled by what he found. According to his (one) eye witness testimony, Respondent was still working on the horses. However, in his absence, Mr. King believed that Respondent had 1) used a power tool to float the teeth of several horses, 2) administered a sedative to up to five horses, and 3) was preparing to pull “wolf” teeth from several horses. The Use of a Power Tool Regarding the use of a power tool, Mr. King testified that after Respondent arrived at his barn, she unloaded several pieces of equipment from her car. In this equipment, Mr. King observed power tools and a sedation bag. Upon returning to the barn after his trip to the eye center, Mr. King witnessed Respondent use an electric power tool to float the teeth of his horse, Warrior. Mr. King described the tool as having a motor and a head that Respondent applied to the horse’s mouth. He also saw that the tool was plugged into a power outlet in the barn. Sedation Floating teeth, especially with a power tool, often includes sedating the horse. Sedation makes the horse more docile and reduces the risk of harm during the treatment. Under Florida law, administering medication and drugs is considered the practice of veterinary medicine. See § 474.202(9), Fla. Stat. An unlicensed person may sedate a horse only if they are under the immediate supervision of a licensed veterinarian. See § 474.203(7), Fla. Stat. Mr. King testified that when he returned to the barn from the eye center, Warrior appeared to be heavily sedated. The horse was having difficulty keeping his head up on the rest. His ears were flat, and his nose hung down almost to the ground. Mr. King further noticed that at least four other horses showed signs of sedation in that they could not hold their heads up either. Mr. King also observed several plastic tubes or plungers on the ground which he believed were used to administer a gel- type sedative to the horses. Finally, Mr. King testified that Respondent, in fact, told him that she had sedated the horses. Mr. King further attested that he directly witnessed Respondent administer a sedative to a paint mare. Mr. King remarked that he saw Respondent holding a small syringe with a needle. He then watched her poke the paint mare several times with the needle, searching for a vein, before she injected the drug. Mr. King also relayed that Respondent commented that her needles were too small, as her mother had purchased the wrong size. Removing “Wolf” Teeth A horse’s “wolf” teeth are deciduous premolars. (They are similar to human wisdom teeth.) Wolf teeth often interfere with the fit of a bit in a horse’s mouth. Therefore, wolf teeth are frequently removed. Extracting wolf teeth, however, is not considered part of floating a horse’s teeth. Instead, removing wolf teeth is a surgical procedure due to the fact that pulling teeth typically requires sedation, as well as the use of certain medical equipment. As such, removing wolf teeth cannot be performed by an unlicensed person, unless such person is under the immediate supervision of a veterinarian. See §§ 474.202(13) and 474.203(7), Fla. Stat. Regarding Respondent’s removal of “wolf” teeth, Mr. King testified that after he observed the gel tubes and the syringe, Respondent informed him that several horses needed their wolf teeth extracted. Mr. King watched as Respondent pulled the wolf teeth from three horses, including Warrior, Scout, and the paint mare. Mr. King expressed that Respondent appeared to have difficulty removing the wolf tooth from the paint mare, as it took a long time. Within days after Respondent’s visit to his barn, Mr. King noticed that several horses were having trouble chewing. Upon inspecting his horses, Mr. King found at least one tooth that still had a point, and other teeth that were rounded, instead of filed flat. Shortly thereafter, Mr. King sought the care of a veterinarian to fix the problems. Soon afterwards, Mr. King complained to the Department about Respondent’s equine dentistry services. Based on Mr. King’s complaint, the Department charged Respondent with three counts of practicing veterinary medicine without a license, including: floating teeth using a power tool, instead of by hand, in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13), Florida Statutes; pulling “wolf” teeth in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13); and sedating at least one horse in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(9. In response to the Department’s allegations, Respondent flatly denied that she used a power tool to float the teeth of Mr. King’s horses. Respondent testified that she floated all of the horses by hand with a file. Respondent also refuted Mr. King’s testimony that she sedated any horses or pulled any wolf teeth. Respondent further denied that she has ever used power tools in her business. Neither has she ever sedated horses or pulled their teeth. Respondent maintained that she floats teeth exclusively by hand and with hand tools. Respondent also disputed key portions of Mr. King’s account. Respondent testified that it was Mr. King who raised the option of sedating his horses. Despite his suggestion, Respondent contended that she refused to do so. Respondent further insinuated that the metal object Mr. King observed in her hand was a tool used to scrap tarter off of a horse’s teeth. Finally, Respondent argued that she finished her floating treatment on all nine horses before Mr. King returned to the barn from the eye center. Therefore, he could not have watched her use a power tool, pull teeth, or sedate horses. Notwithstanding Respondent’s assertions, evidence presented at the final hearing established that Respondent is familiar with, and has received training in, the use of a power tool to float horses’ teeth. In May 2015, Respondent attended an equine dentistry program in Virginia during which time she received training on how to float horse’s teeth using both hand and rotary power tools. Shortly thereafter, she started her equine dentistry business in Florida. Several photographs of Respondent using a power tool on a horse are posted on her business’s Facebook page. Respondent acknowledged that the use of power tools and sedation, as well as the removal of wolf teeth, constitute the practice of veterinary medicine in Florida. Therefore, she could only perform these procedures and techniques under the immediate supervision of a veterinarian. Unrelated to the issue of Respondent’s use of a power tool and sedation, Respondent and Mr. King disputed whether Respondent received full payment for her equine dentistry services. Respondent testified that after she floated the nine horses, she presented Mr. King with invoices for her work. At the final hearing, Respondent produced nine separate Equine Dental Records detailing the amount she charged, as well as the treatment she provided for each horse. Respondent testified that it is her routine practice to complete an Equine Dental Record while she works on a horse and provide a copy to the client. Respondent relayed that her standard charge for floating services is $75 per horse. The Equine Dental Records that she produced record that she billed Mr. King $75 per horse ($675 total) and for no other treatment. Therefore, Respondent asserts that her documents confirm that she only floated the nine horses’ teeth and did not pull wolf teeth or administer sedation. Respondent also stated that Mr. King only had $500 in cash when she presented him with the invoices. Therefore, he told her that he would mail her a check for the remainder. However, when she called Mr. King a week later to follow up on his payment, he refused to pay the rest of the bill. Instead, he demanded that she pay him $500 to cover the medical cost of his eye injury. At the final hearing, Respondent declared that Mr. King filed a false complaint against her in an effort to extort payment from her for his medical expenses. Respondent also pointed out that the amount she charged, as recorded on the Equine Dental Records she prepared, does not match the figure Mr. King recalled he paid her. Therefore, his memory of the event is not credible or reliable. Mr. King remembered that Respondent charged him around $600 for the floating procedure. But, he asserted that she charged him an additional amount for the sedation and the extraction of the wolf teeth. Mr. King stated that he paid Respondent the full amount of her services, in cash, on the date she treated his horses. Mr. King denied that he ever received or saw the Equine Dental Records Respondent produced at the final hearing. Mr. King disputed Respondent’s claim that she supplied him with a written bill, invoice, or receipt of any kind for her floating services. Mr. King further denied that he demanded Respondent pay for his medical expenses. He represented that he owed nothing for his hospital visit because his wife worked at the facility. The Department introduced the testimony of Patricia Austin in rebuttal.4/ Ms. Austin testified regarding a similar floating service she received from Respondent on her horse. Ms. Austin was acquainted with Respondent from boarding her horse at a barn where Respondent took lessons and occasionally cared for horses. Ms. Austin testified that in May 2016, she hired Respondent to float the teeth of her horse, Sapphire. During the procedure, Ms. Austin observed Respondent use a power tool to file down Sapphire’s teeth. Ms. Austin described the power tool as a long metal device with a grinder on the end. The tool was equipped with a power cord and was plugged in during the treatment. Ms. Austin also witnessed Respondent sedate her horse. Ms. Austin watched as Respondent injected Sapphire with a needle. Following the injection, Ms. Austin relayed that Sapphire’s head and ears began to droop, and she appeared sleepy. Ms. Austin paid Respondent for her services in cash, half at the time of treatment and the other half two weeks later. Respondent did not provide Ms. Austin with an invoice or receipt. Neither did Ms. Austin receive an Equine Dental Record from Respondent documenting her work on Sapphire. Respondent denied that she ever floated the teeth of Sapphire or any other horse for Ms. Austin. Instead, Respondent asserts that she simply looked at Sapphire’s teeth and determined that the horse did not need dental care. The Department incurred $288.47 in investigative costs associated with this matter. Based on the competent substantial evidence produced at the final hearing, the clear and convincing evidence in the record establishes that Respondent engaged in the practice of veterinary medicine without a license. Accordingly, the Department met its burden of proving that Respondent should be disciplined for her unlicensed conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Respondent, Megan McMurran Lajara, violated section 474.213(1)(i) and impose an administrative fine in the amount of $9,000 ($3,000 for each separate violation), as well as assess costs in the amount of $288.47. DONE AND ENTERED this 31st day of January, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 January, 2018.
