The Issue This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of alleged sanitary violations described in an administrative complaint.
Findings Of Fact At all times material to this case, the Respondent has been licensed as a permanent food service facility, having been issued license number 2318478. The Respondent's last known business address is 9796 S.W. 24th Street, Miami, Florida 33165. On March 17, 2004, the Respondent's licensed premises were inspected by Pedro Ynigo, an inspector employed by the Division of Hotels and Restaurants. During the course of his inspection on March 17, 2004, Inspector Ynigo observed more than thirty fresh mice droppings on the shelves of the second floor storage room. Rodent droppings (including mice droppings) are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division of Hotels and Restaurants at Florida Administrative Code Chapter 61C. Food Code Rule 6-501.111 requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered in this case imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 2nd day of February, 2005. COPIES FURNISHED: Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Ms. Madelaine Galindo Odnilag Incorporated 9796 Southwest 24 Street Miami, Florida 33165
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent, Tony's Prime Meats, Inc., (Tony's) is a Florida corporation which was dissolved for failure to file an annual report on August 13, 1993. The corporation is still doing business under the fictitious name of Scotti's Meats, Co., in Manatee County, Florida, at 510 7th Street East, Bradenton, Florida 34208-9020. At the time of the alleged violation, Respondent, Tony's Prime Meats, Inc. was an active and current Florida corporation. Respondent, Anthony Scotti, Jr., is a shareholder in, the registered agent for, and a corporate officer of, Tony's. Anthony Scotti, Jr. is shown on the corporate records as Anthony G. Scotti, and is a resident of Sarasota County, Florida. The Department is the agency of the State of Florida charged with the administration and enforcement of the provisions of Chapter 585, Florida Statutes. Respondents are engaged in the preparation of, and the offering for sale, animal products capable of use as human food and intended to be used as human food, pursuant to Chapter 585, Florida Statute. Tony's holds a Grant of Inspection, Number 335/P, pursuant to Section 585.74, Florida Statutes, from the Department. On June 2, 1993, meat inspection at Tony's had been withheld by Ernest Tipton, Meat Inspector with the Department, because of sanitary standards violations. At about 8:00 a.m. on June 4, 1993, Inspector Tipton visited Tony's to check on the facility. Arnie Lahtinen, an employee of Tony's who was in charge of the plant during the absence of Anthony Scotti, was present at the facility during Inspector Tipton's visit. During Inspector Tipton's visit, Lahtinen was performing plant improvement tasks in accordance with deficiencies noted when inspection had been withheld on June 2, 1993. Inspector Tipton did not observe the presence of any other employee in the establishment or observe any visible signs of meat processing occurring or observe any evidence that meat processing had been occurring prior to his visit. Inspector Tipton departed Tony's about 8:30 a.m. on June 4, 1993, but returned later in the morning around 10:00 a.m. to pick up some papers. Upon his return, Inspector Tipton observed a car parked at the facility which he identified as belonging to an employee of Tony's named Nick. However, there was no direct evidence that the car belonged to Nick or that Nick was present in the facility during the time in question on June 4, 1993. Inspector Tipton attempted to gain entry but found the facility locked. After ringing the doorbell and getting no response, Inspector Tipton then knocked on the back door but again, received no response. Since Lahtinen had been present in the facility during Inspector Tipton's earlier visit, he assumed Lahtinen was still in the facility, that meat processing was occurring in the facility, and that he was being denied access to the facility in violation of Chapter 585, Florida Statutes. Inspector Tipton determined that his best course of action was to contact his supervisor, Melody Cara. After contacting Ms. Cara, Inspector Tipton contacted the police on the advice of Ms. Cara. Upon her arrival at the facility, Ms. Cara made a similar attempt to gain entry by ringing the door bell and knocking on the door but there was no response. Anthony Scotti arrived at the facility shortly after Ms. Cara and the police officer, and immediately unlocked the facility to allow Ms. Cara, Inspector Tipton and the police officer entry into the facility. When Inspector Tipton, Ms. Cara, Scotti and the police officer entered the facility, one of them turned the lights on in the lobby area and just a short time later Ms. Cara turned the lights on in the processing room. As Scotti and Ms. Cara were entering the processing room, Lahtinen came out of the processing room. The record does not reflect whether Lahtinen heard the door bell ring or the knocking on the door on either occasion and, if he did, why he did not respond. Other than Lahtinen, no other employees were observed in the facility at this time. Upon entering the lobby area, the police officer found a knife and an apron upon which there was a substance that resembled blood. No analysis of the substance on the apron and knife was conducted and the material was never identified as blood. The tables and the floors in the processing room were wet as if they had been washed. However, there was no direct evidence that meat processing had been occurring before the entry. There is insufficient evidence to establish facts to show that Inspector Tipton or Ms. Cara were intentionally denied entry into Tony's facility, or that meat processing had been occurring in Tony's establishment during the time in question on June 4, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing both Count I and Count II of the Administrative Complaint. It is further recommended that the request for attorney's fees and costs be denied without prejudice to the Respondents filing a petition under Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. DONE AND ENTERED this 14th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7087 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5); 6(7); 7(7,8); 8(9); 9(10,11); and 10(12). Proposed finding of fact 11 is neither material nor relevant to this proceeding. Proposed findings of fact 4 - 8 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. Proposed findings of fact 7 and 8 indicate that the parties were denied access which is rejected as not supported by competent substantial evidence in the record. Proposed finding of fact 10 indicates a bloody knife and apron were found on the premises. While a knife and apron with a substance appearing to be blood was found, it was never established that the substance was blood. Respondents' Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5,6); 6(7); 7(7,9); 8(10); 9(10-12)); 11(10); 12(14)and 13(11). Proposed finding of fact 10 is neither material nor relevant to this proceeding. Proposed findings of fact 4,5,6,7 & 9 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Isadore F. Rommes, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Thomas M. Fitzgibbons, Esquire SouthTrust Bank Plaza 1800 Second Street, Suite 775 Sarasota, Florida 34236 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue for determination is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2331004. At all times material hereto, the Restaurant was located at 2298 Northwest 36th Street, Miami, Florida 33142. A critical violation in food service is considered to be a violation that is directly related to a food-borne illness risk and could cause the threat of health and sanitation issues; or any violation that, if left uncorrected, could lead to food being contaminated and may cause a food-borne illness or cause someone to become sick or harmed. On March 17, 2009, Mohammad Khan, a senior sanitation safety specialist with the Department, conducted an inspection of the Restaurant. Another inspector with the Department, Maurice Chi, a sanitation safety supervisor, arrived at the Restaurant after Mr. Khan and accompanied Mr. Khan during the inspection. During the inspection, among other things, Mr. Khan and Mr. Chi found a violation, which they considered to be a critical violation. Further, during the inspection, Mr. Khan prepared a food inspection report, setting forth the alleged critical violation. The inspection report was signed by Mr. Khan, Mr. Chi, and Eva Alvarado, the manager of the Restaurant. Mr. Khan made Ms. Alvarado aware of the alleged critical violation, in addition to other violations, and provided her with a copy of the inspection report. The inspection on March 17, 2009, involved a possible immediate closure of the Restaurant due to the alleged critical violation. The alleged critical violation on March 17, 2009, was 35A-04-1:2 “Observed rodent activity as evidenced by rodent droppings found found [sic] 70 plus fresh rodent droppings in kitchen behind chext [sic] type freezer.” Mr. Khan moved the freezer, observed the area behind it, and observed approximately 70 fresh rodent droppings. Mr. Chi also observed the fresh rodent droppings. Mr. Khan and Mr. Chi considered this alleged violation to be a critical violation because the fresh rodent droppings are directly related to food-borne illness in that rodents carry a lot of germs and diseases and they could contaminate food and preparation areas, causing significant health issues for anyone eating in the Restaurant. Their testimony is found to be credible and clear and convincing. The Restaurant was closed on March 17, 2009, as a result of the critical violation being found. The next day, March 18, 2009, the Restaurant was re- inspected. The critical violation had been corrected, and the Restaurant was allowed to re-open. Ms. Alvarado testified, among other things, that the Restaurant had fumigation performed every 15 days. Her testimony does not negate what was found during the inspection on March 17, 2009, and the critical violation found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Restaurant El Hondureno II violated Food Code Rule 6-501.111. Imposing an administrative fine in the amount of $1,000.00 against Restaurant El Hondureno II. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of December, 2009.
The Issue Whether Petitioner’s application for renewal of his license to possess class III wildlife for exhibition or public sale (class III license) should be granted.
Findings Of Fact Respondent is a state agency authorized to exercise the executive and regulatory powers of the state of Florida with respect to wild animal life and fresh water aquatic life. See Fla. Const. Art. IV, § 9. 1 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. Petitioner holds a class III license which authorizes him to possess class III wildlife for exhibition or sale.2 Petitioner is the owner and license holder authorized to maintain a facility called Iguanaland, located in Punta Gorda, Florida. Iguanaland is a reptile facility that has as its goal the preservation of certain species and the conservation of endangered species. Petitioner is a respected member of a community of individuals who keep, and make serious efforts to breed, reptiles in captivity. He is widely known for holding one of the largest collection of reptiles in the United States. Petitioner’s facility has been successful with reproducing reptile species, adding to the diversity within the captive reptile population. Petitioner partakes in cooperative trading with zoological institutions. He helps to facilitate research on hard-to-come-by reptilians. His facility greatly contributes to the preservation of endangered reptile species. It is the only facility in the United States that has the capacity to successfully breed reptilians on a large scale. Petitioner maintains temporary living quarters on the facility’s grounds to host graduate students conducting research. Petitioner has never been disciplined by Respondent; he has not received a written or verbal warning. Respondent’s witness, Investigator O’Horo, testified that, “anything that’s still caged [at Petitioner’s facility] is being taken care of” and that he has been “impressed with the husbandry[3] aspect.” Petitioner maintains several species of reptilians at Iguanaland, including lizards, snakes, and chelonians. 2 Class I wildlife is wildlife which, because of its nature, habits, or status, shall not be possessed as a personal pet; class II wildlife is wildlife considered to present a real or potential threat to human safety; class III wildlife is all other wildlife not included in Class I or Class II. See § 379.3762(2), Fla. Stat. 3 “Husbandry” generally refers to the care, food, and shelter that is provided to the reptilians. Monitor lizards include a wide class of lizard species. Monitor lizards, in general, are primarily carnivores, eating mostly animal matter. They are typically between one and nine feet long. In July 2020, Petitioner had possession of three crocodile monitor lizards. Crocodile monitor lizards are an uncommon type of monitor lizard. They are known for having extremely long tails relative to their body length and uniquely shaped heads. Petitioner commissioned a construction worker to build an enclosure for the crocodile monitor lizards, in accordance with FWC requirements. This included a request to fortify the bottom of the crocodile monitor lizards’ wired enclosure with cement. Unfortunately, the construction worker failed to cement a space of approximately one foot along the barrier of the enclosure. Petitioner testified that he inspected the enclosure several times, and failed to notice the gap. Investigator O’Horo also inspected the enclosure and did not notice the gap. In August 2020, two of Petitioner’s three crocodile monitor lizards escaped from Iguanaland, through the opening in the enclosure. One of the two escaped crocodile monitor lizards injured two pet dogs at a neighboring property. The crocodile monitor lizard was euthanized to prevent further issue. For the period of June 2016 through November 2020, FWC staff members received reports of sightings of over 100 non-native tegus and other reptilians within a half-mile radius of Petitioner’s facility. Although Respondent proved that non-native tegus and other reptilians were spotted and captured in the vicinity surrounding Iguanaland, it offered no competent, substantial evidence that the large population of tegus and other reptilians in the area surrounding Petitioner’s facility was caused by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order approving Petitioner’s renewal application, subject to such reasonable terms and conditions as FWC deems appropriate. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Michael P. Haymans, Esquire Michael P. Haymans Attorney at Law, P.A. 215 West Olympia Avenue Punta Gorda, Florida 33950 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue 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)
