The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted, 35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found. OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of $250.00 be imposed for this violation; and that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of June, 2007.
The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether Respondent failed to keep proof of vaccination on file for racing greyhounds in his kennel, had a hypodermic needle on premises where racing greyhounds were lodged or kept, or stored cleaning supplies in the same area as bedding intended for racing greyhounds, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. Mr. O'Donnell owns racing greyhounds. He keeps his dogs, along with some leased dogs of other owners, in kennels that he leases for that purpose. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering business occupational license, number 441699, issued by the Department. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering professional individual license, number 330177, issued by the Department. A "permitholder" is a person or entity which holds an annual license to conduct pari-mutuel operations at the location specified in the permit. The licenses held by Mr. O'Donnell do not allow him to operate a pari-mutuel track or to conduct pari- mutuel operations at specified locations. Mr. O'Donnell is not a permitholder. Mr. O'Donnell employed a licensed trainer, Mr. Dennis Smith, who was responsible for day-to-day activities involving the dogs. Mr. O'Donnell personally kept responsibility for setting up vaccinations for the dogs. Mr. O'Donnell was not always physically present when vaccinations were given. Dr. Emilio L. Vega was a licensed veterinarian that Mr. O'Donnell employed to vaccinate his racing dogs. Dr. Vega came to Mr. O'Donnell's kennels for many years to vaccinate the dogs. Dr. Vega died on September 4, 2010, at the age of 80 years. On September 14, 2011, Investigator Tyrell Smith of the Department was reviewing operations of licensees who own or train greyhounds at the Florida Kennels Compound in Hialeah, Florida. At kennel number 45, leased by Mr. O'Donnell, he asked a kennel helper to let him inspect the vaccination records for the dogs.3/ Fifty-two vaccination records that had been signed in 2011 were produced for dogs in that kennel, and the helper indicated that Mr. O'Donnell was keeping vaccination records for other dogs. Investigator Smith noted that the name in the veterinarian's signature block on the forms was Dr. Vega. He was not aware at that time that Dr. Vega was deceased and could not have signed the forms in 2011. On September 23, 2011, Investigator Smith asked a kennel helper at Steubenville Kennel, numbers 36 and 37, which are also leased by Mr. O'Donnell, for vaccination records for the dogs. The kennel helper provided four records that contained the name of Dr. Vega in the veterinarian's signature block, dated in 2011. After talking with other trainers at the track, Investigator Smith learned that Dr. Vega had died in 2010. On September 30, 2011, Investigator Smith and other employees of the Department visited two animal clinics where Dr. Vega had formerly worked. The clinics did not have vaccination records for dogs in any of Mr. O'Donnell's kennels. Investigator Smith was able to view copies of some other vaccination records, and the signature appeared to Investigator Smith to be the same signature that appeared on the forms that had been given to him for the dogs in Mr. O'Donnell's kennels. On October 4, 2011, Investigator Smith visited kennel number 39 in Hialeah and asked Mr. O'Donnell for the vaccination records for those dogs. Mr. O'Donnell told him that the records had been stolen. Investigator Smith asked Mr. O'Donnell if he had filed a police report. Mr. O'Donnell said he had not. He indicated that he would just re-do the vaccinations. Investigator Smith returned to kennel number 39 on October 14, 2011. The vaccination records were not available. Mr. O'Donnell gave Investigator Smith the telephone number of Dr. Ann Romano, a veterinarian, and was told that she would be able to give him the vaccination information. Investigator Smith called Dr. Romano, but had only a very brief conversation with her, because communication was poor and because she was leaving on vacation. On October 25, 2011, Investigator Smith returned to kennel number 39 and again requested to see vaccination records for the dogs. He was provided records signed on October 24, 2011, by Dr. Romano. He later talked to Dr. Romano, who confirmed that she had vaccinated the dogs on October 24, 2011, but had not ever vaccinated any of Mr. O'Donnell's dogs before that date. The rule provides no "grace period" for enforcement of the requirement to keep proof of vaccination on file. Mr. Charles Taylor is an investigation specialist for the Department. Investigator Taylor was asked by his supervisor to go to the Orange Park Kennel Club ("Orange Park") and examine dog vaccination records for dogs in Mr. O'Donnell's kennels to see if any had been signed by Dr. Vega. Investigator Taylor visited the Orange Park facility on December 21, 2011. In the racing secretary's office, he found 56 National Greyhound Association papers, with vaccination records attached, for dogs in Mr. O'Donnell's kennels. The National Greyhound Association is an association that registers racing greyhounds. Examining these 56 vaccination records, he found that 21 of them contained the name of Dr. Vega in the veterinarian's signature block, with dates ranging from January 15, 2011, to September 16, 2011. He also found one undated, blank record with Dr. Vega's name in the veterinarian's signature block. Investigator Taylor made copies of these vaccination records. He did not contact either Mr. O'Donnell or the trainer of record about these vaccination records. Dr. Vega was deceased and did not sign any vaccination forms in 2011. Any forms purporting to contain his signature with a 2011 date were invalid and did not constitute proof of vaccination. The Department had visited the workplaces of Dr. Vega, and no other proof of vaccination could be obtained through the treating veterinarian. On August 27, 2013, Mr. O'Donnell occupied or had the right to occupy kennel number 45, at the Florida Kennels Compound, 7218 West Fourth Avenue, Hialeah, Florida, 33014. Mr. Luis Miranda is the facility manager of the Florida Kennel Compound. He conducts regular walk-through inspections of the kennels. Mr. Miranda points out any violations he observes to Investigator Smith when he comes to inspect the kennels. On August 27, 2013, Mr. Miranda told Investigator Smith that Mr. Miranda had found that kennel 45 was dirty during his walk-through inspection.4/ Investigator Smith went to kennel 45. There was no one there. A kennel is never locked, because it must remain open for safety of the dogs; however, there is a security gate and guard on duty at the entrance to the facility, and only licensees can gain entrance. Inspector Smith testified that kennel 45 did not appear dirty. He looked in the medicine cabinet in the kitchen area of the kennel, which is only about five feet from the dogs. He saw a syringe with a hypodermic needle attached. He confiscated it, took a picture, and placed it in a storage container. He never asked Mr. O'Donnell about the needle. On October 10, 2013, Mr. O'Donnell occupied or had the right to occupy kennel numbers 36 and 37, at the Florida Kennels Compound. On October 10, 2013, Inspector Smith conducted an inspection of kennel numbers 36 and 37, the Steubenville Kennel. He found the vaccination records all in order. He found a bottle of Clorox bleach and spray bottles containing unknown substances sitting on top of a crate that had a dog sleeping inside. He asked kennel workers about the chemicals. They told him they had just put them up there for cleaning and would move them in a few minutes. He found a hypodermic needle with syringe in kennel 36. He photographed these items. Kennel helpers removed the bleach and spray chemicals. Mr. O'Donnell was not there when Investigator Smith arrived, but came later while Investigator Smith was still there. While the Department showed that a bottle of Clorox cleaning solution was on top of a crate that had a dog sleeping inside, it did not clearly show that the Clorox cleaning solution was being "stored" there. The word "store" is defined as "to take in or hold supplies, goods, or articles, as for future use" or "to deposit or receive in a storehouse or warehouse for safekeeping" or "to put something that is not being used in a place where it is available, where it can be kept safely, etc." See Random House Dictionary, Random House, Inc. (2014), online at http://dictionary.reference.com/browse/store; American Heritage Dictionary of the English Language, 5th ed. (2014), by Houghton Mifflin Harcourt, at www.ahdictionary.com/word/search.html?q=store; and Merriam-Webster Online Dictionary, http://www.merriam- webster.com/dictionary/store. If the helpers only placed the Clorox on the crate while they were using it, as claimed, the Clorox and other cleaning materials were not "stored" there. There was no clear evidence to refute the helpers' admissions. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 52 of his racing greyhounds on September 14, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for his racing greyhounds on October 4, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 21 of his racing greyhounds on December 21, 2011. The Department showed by clear and convincing evidence that on August 27, 2013, and October 10, 2013, Mr. O'Donnell had hypodermic needles with syringes on premises which he had a right to occupy on the grounds of a racing permitholder where racing greyhounds were kept. Mr. O'Donnell has been involved with racing greyhounds for over 60 years. Prior to the incidents involved in this case, Mr. O'Donnell had never received a notice of violation from the Department.
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 Pari-mutuel Wagering, enter a final order: (1) finding Mr. James E. O'Donnell guilty of 74 counts of violating Florida Administrative Code Rule 61D-6.009(9) and two counts of violating Florida Administrative Code Rule 61D- 6.004(2)(a); and (2) imposing an administrative fine of $76,000. DONE AND ENTERED this 24th day of December, 2014, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 24th day of December, 2014.
The Issue Whether the Petitioner is entitled to an award of Attorney Fees and Costs under the provisions of Section 57.111, Florida Statutes.
Findings Of Fact By Administrative Complaint dated September 3, 1997, the Department alleged that Donald J. Beck (Beck) was incompetent or negligent in his practice of veterinary medicine under Section 474.214 (1)(r), Florida Statutes. The Administrative Complaint further alleged that the Respondent violated Sections 474.214(1)(f) and 455.241(1), Florida Statutes, by failing to furnish medical and examination records in a timely manner. A formal hearing was conducted on January 20, 1999. At the close of the Department's case presentation during the hearing on the Administrative Complaint, Beck moved to have the case dismissed. The motion to dismiss was granted as to the alleged violations related to medical and examination records, and was denied as to the alleged incompetent or negligent practice of veterinary medicine. The factual allegations in the Administrative Complaint involved two dogs boarded at a combination animal clinic and boarding facility identified as "Animal Hospital Hyde Park" in Tampa, Florida. The Animal Hospital Hyde Park facility was owned and operated by another veterinarian not a party to this proceeding. The two dogs were boarded at the facility for a period of months. The owners of the dogs had minimal contact with the animals during the boarding period. During the boarding period, the owners had informed the facility staff that the dogs were overweight and that the animals should be placed on restricted diets. After being notified by the facility owner that the facility was being closed, the owners retrieved the dogs and were apparently unhappy with the condition of the animals. The dog owners took the animals to another veterinarian, Dr. Jerry Alan Greene, who examined the dogs on August 13, 1996. The dog owners subsequently filed a complaint with the Department, which investigated the case. As part of the investigation, the Department interviewed witnesses including Dr. Greene and a second treating veterinarian. The Department reviewed medical records and photographs related to the animals. The Department also obtained an opinion from Dr. Sheldon Pinkerton, a third veterinarian, who opined that based on his review of the investigative information, Dr. Beck was in violation of Section 474.214(r), Florida Statutes, as well as other statutes and administrative rules. The investigative information and Dr. Pinkerton's opinion were submitted to the Board of Veterinary Medicine's Probable Cause Panel. Based on their review of the information, the Panel determined on August 28, 1997, that there was probable cause to charge Beck with violation of Section 474.214(r) and (f), Florida Statutes. Based on the Probable Cause Panel determination, the Department filed the Administrative Complaint dated September 3, 1997. During the formal hearing on the disciplinary case, the Department presented the testimony of Dr. Jerry Alan Greene, the veterinarian who tested and examined the relevant animals on August 13, 1996. According to Dr. Greene's testimony there was evidence, based on test results, that the animals had hookworms. Based on his examination, Dr. Greene further diagnosed one animal with an ear infection and opined that the animal was "grossly underweight." The other animal was still overweight and had some type of "foot problem." Beck presented the testimony of Dr. Richard Goldston at the formal disciplinary hearing. Dr. Goldston based his testimony on a review of photographs taken of the animals. Dr. Goldston opined that the "underweight" dog, although thin, was healthy. Dr. Goldston also opined that the other animal's "foot problem" was an "acral lick granuloma," which resulted from excessive licking of the area. Based on review of the testimony of the two expert witnesses presented at the formal hearing, the opinion of Dr. Goldston was credited. At the hearing, the Department offered testimony to suggest that Beck had a duty to provide medical care to all of the animals boarded at the facility. The testimony was not persuasive. The evidence presented at the hearing failed to establish that Beck was responsible for the medical needs of all the animals boarded at the Animal Hospital Hyde Park. By a Recommended Order dated March 29, 1999, the Administrative Law Judge recommended that the complaint against Beck be dismissed. By Final Order filed September 16, 1999, the Department of Business and Professional Regulation, Board of Veterinary Medicine adopted the Recommended Order and dismissed the Administrative Complaint.
The Issue The issue in this case is whether Respondent, Zion's Hope, Inc., d/b/a Holy Land Experience (hereinafter "HLE"), discriminated against Petitioners, James Gantz and Bette Gantz, by refusing Petitioners entry into HLE due to the Gantzes's disability, i.e., being hard of hearing and requiring the service of hearing ear dogs.
Findings Of Fact Zion's Hope, Inc., is a Florida not-for-profit corporation formed in 1989. It is a religious entity with a Section 501(c)3 designation under the U.S. Tax Code as a bona fide charitable organization. HLE is a privately-owned religious theme park operated by Zion's Hope. Religious services are conducted at HLE seven days a week. HLE is located at 4655 Vineland Road, Orlando, Florida. The public, upon payment of an admission fee, is invited into HLE on a daily basis. James and Bette Gantz are an elderly married couple who reside for part of each year in North Port, Florida. Both James and Bette are hard of hearing and have suffered from this affliction for many years. James and Bette each have a certified hearing ear dog which accompanies them almost everywhere they go. The dogs were present at the final hearing. On March 19, 2010, James and Bette accompanied by their service dogs and Bette's sister, Lois Wilcox, decided to visit HLE. Upon arrival, they were told that the HLE parking lot was full, but that additional parking was available across the street. James dropped off Bette, the dogs, and Lois in front of the HLE entrance, then went to park the car across the street. When Bette, Lois, and the dogs approached the ticket window to purchase admission into HLE, they talked to one of the employees about the service dogs to make sure the dogs could accompany them inside. The employee opted to call her superior, Jane Wilcox (no relation to Lois), to make a determination about the dogs. Jane Wilcox testified that she approached Bette and Lois in the lobby area, i.e., an enclosed area akin to a hotel lobby, which housed the ticket windows. Bette and Lois said they were never inside a building at HLE; rather, the discussions that occurred happened outside on the sidewalk area. It seems most likely from the evidence that the conversation commenced inside the lobby and then continued outside. Jane Wilcox did a cursory examination of the dogs and decided they did not appear to be service dogs. She also determined that the dogs appeared to be "frisky" in nature and were not like other service dogs she had seen. It was her practice to make a determination as to whether an animal was a service animal or not by asking reasonable questions. This is the way she handles each of the 100 or so cases a year in which guests show up with animals. Jane Wilcox has not had any formal training from the Commission or other regulatory entity regarding service dogs. She was given on-the-job training by her predecessor and has studied written materials on the subject. Her experience in this area is somewhat extensive during her three and a-half year tenure at HLE. After Jane Wilcox made an initial visual determination that the dogs appeared to be pets, Bette attempted to advise her that the dogs were certified and had certification documents on the capes they were wearing. Bette and James had taken the dogs into numerous other businesses and had been asked many times for proof of the dogs' certification. Thus, they kept the certification documents on the dogs at all times. Jane Wilcox refused to look at the certification documents because she has been provided bogus certification documents on occasion. That being the case, she did not put any stock in documents that were presented to her by guests. Rather, it was her normal practice to ask questions of the owners and to visually examine the animals. Based on the answers and her observation, Jane Wilcox would come to a conclusion about the animal in question. The discussion between Jane Wilcox and Bette became somewhat heated once Jane Wilcox made her initial determination about the dogs. Bette was talking loudly, but she is prone to do that because of her hearing impairment. Jane Wilcox viewed Bette as being very excited and possibly offended by the refusal to admit the dogs into HLE. After a few moments, Jane Wilcox determined that communication with Bette had broken down to the point that further conversation was useless. At that point, she called for security assistance.1/ It appears that the matter could have been resolved to everyone's satisfaction had the conversation not degenerated into a contentious debate between the parties. However, it is impossible to ascertain from the facts submitted whether one party or the other was more responsible for the verbal melee. Therefore, no finding can be made as to that point. The security officer who arrived took Bette and Lois to his small security building, where they were joined by James. The security officer said that Jane Wilcox was within her rights to refuse their admission into HLE with the service dogs. He advised them that there was a facility nearby that would care for the dogs while the guests were at HLE. The security officer allegedly told the Gantzes that HLE was a private facility and not subject to federal or state law regarding disabled persons. He also supposedly said that HLE considers dogs like those belonging to the Gantzes as pets, rather than service animals. According to Bette, this "colored" security officer would not listen to her or allow her to talk. A Caucasian guard, however, allegedly told Bette that maybe the dogs should be allowed into HLE, but he was overruled by the first guard. The Gantzes then asked the security officer to call the local (Orlando) police, which he did. When the police officer arrived, he advised the Gantzes that he could not force HLE to admit the dogs, but that he would write up a report. The report written by the police officer indicates that "security officer Santis" called in the request for assistance. It is not clear from the evidence at final hearing which of the two aforementioned security officers was Santis. The incident narrative in the police report simply states: Contact was made with all parties. 'Gantz' were acc[ompanied] by certified service dogs for hearing along with proper documentation. Upon Mngt request to leave, did so without incident. The Gantzes and Lois Wilcox opted not to board the dogs at the nearby facility. Rather, they left HLE and, ultimately, filed a complaint against Zion's Hope with the Commission. HLE does have a policy of admitting service animals inside the attraction. However, as a private religious facility, it does not believe that it has to do so, i.e., it does not believe it is governed by the Americans with Disabilities Act. Of the 100 or so service animals appearing for admission each year, about 70 percent of them are admitted. The others are boarded or the owners opt not to enter HLE. HLE does have a strict policy disallowing pets from admission to the park. Inasmuch as Jane Wilcox found the animals with the Gantzes to be pets, they were denied admission on that basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief filed by James Gantz and Bette Gantz in their entirety. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2011.
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
