The Issue The issue is whether Petitioner's applications to renew her Licenses to Possess Class II and III Wildlife for Exhibition or Public Sale should be approved.
Findings Of Fact The Commission is the state agency that has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. Before moving to her current residence in Kissimmee, Petitioner resided in Tampa, where she possessed a bobcat kitten and a kinkajou, a small rain forest creature. In May 2012, she advised the Commission by email that she intended to move to Central Florida. She requested that the Commission provide her with copies of rules that would apply if she kept a bobcat inside her new residence. In response to that request, the Commission provided her with copies of all applicable rules. She was also told that, in order to secure the bobcat, she would have to install chain link on her windows and a secondary safety entrance to the home. These features are necessary in order to ensure public safety. On an undisclosed date, Petitioner moved to a 2,000 square-foot home located at 8520 Sioux Trail, Kissimmee, where she established a captive wildlife facility. Later, she acquired two more bobcats, which she intended to use for presentations and educational shows in the Central Florida area. For that purpose, she formed Florida's C.L.A.W.S., an unincorporated organization that exhibits and sells wildlife at local events in Central Florida to educate the public about, and raise money for, the care of her animals. Her full-time vocation, however, is a tattoo artist, which requires that she work around 60 hours per week, often late into the night and during the early morning hours. "Captive wildlife" species are listed in Florida Administrative Code Rule 68A-6.002. The rule establishes three classes of captive wildlife: I, II, and III. Each requires a license issued by the Commission. Until it expired on March 5, 2015, Petitioner possessed a Class II license, issued on March 14, 2014, which allowed the exhibition and sale of Felidae (the family of cats). Until it expired on June 10, 2015, she also possessed a Class III license, first issued on June 3, 2011, which allowed the exhibition and sale of mammals, birds, reptiles, amphibians, and conditional species. By holding these licenses, she was responsible for the care of the captive wildlife at her facility. The instant case involves her applications to renew the two licenses. After her licenses expired and the two applications for renewal denied, on July 1, 2015, a Notice to Relinquish Wildlife was issued by the Commission. In response to that order, Petitioner moved her Class II and III captive wildlife to a friend's facility, where they remain pending the outcome of this proceeding. Currently, she keeps only dogs and cats at her home. When the Kissimmee facility was fully operational, Petitioner had more than 30 animals/reptiles, including foxes, bobcats, skunks, snakes (non-venomous), tegu lizards, and a kinkajou. All of these species are listed as captive wildlife in rule 68A-6.002. On February 25, 2014, an announced, routine inspection of Petitioner's facility was conducted by Captive Wildlife Investigator Damon Saunders. This type of inspection is required when a new facility is established. During the inspection, Investigator Saunders observed seven rule infractions, which are noted in his report and depicted in photographs taken that day. See Resp. Ex. C and D. Overall, he found the condition of the facility to be "substandard." The documented violations on February 25, 2014, are as follows: There was no safety entrance for the bobcat enclosure, as required by rule 68A- 6.003(1)(a); There was rusting that affected the structural integrity of the bobcat enclosure, in violation of rule 68A-6.0023(5)(e); Weld spots on the east side of the bobcat enclosure were coming undone due to corrosion in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The kinkajou was housed in a bird cage, in violation of rule 68A-6.004, which requires a cage size of six feet by eight feet, and six feet high; There was no record for the source of acquisition for her reticulated python, which is required by rule 68A-6.0023(6); A microchip passive integrated transponder (PIT) tag was not detected for the reticulated python; a PIT tag is required by rule 68-5.001(3)(e)2.; and The fox and various reptile enclosures had dirty water bowls, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean. At the end of the inspection, Investigator Saunders met with Petitioner and identified each infraction he observed; he explained how each should be corrected; and he told her that she had 30 days, or until March 27, 2014, to correct the violations. She was also given a copy of the Commission's captive wildlife rules, with the violated rules highlighted. Although Investigator Saunders observed several other violations that day, they were not noted on his inspection report because he knew the facility had just been established, and he wished to give Petitioner additional time in which to get her facility operating in accordance with all rules. On July 28, 2014, or approximately five months later, an unannounced, follow-up inspection was conducted by Captive Wildlife Investigators Steven McDaniel and Rick Brown. The purpose of the inspection was to determine if the violations observed on February 25, 2014, had been corrected. The inspection was purposely delayed until July, rather than 30 days after the first inspection, so that Petitioner would have adequate time to take corrective action. Petitioner complained that the inspection occurred when she just awoke around 10:20 a.m., after a long night at work and before she had time to clean the facility. For obvious reasons, however, the Commission does not give licensees advance warning of follow-up inspections. During the inspection, the investigators noted that Petitioner had six foxes, three bobcats, two skunks, a kinkajou, a reticulated python, and several nonvenomous snakes. With the exception of the safety entrance for the exterior bobcat cage, Petitioner acknowledged that none of the violations observed during the first inspection had been corrected. The investigators found some wildlife living in outdoor cages or other enclosures, while others, including two skunks, a bobcat, a kinkajou, a reticulated python, and several reptiles, were living in her home. Investigator McDaniel testified that "it looked as if very little had been done" and characterized the condition of the wildlife as "mediocre to poor." Investigator Brown noted that there was an "extreme" lack of care of the wildlife, the violations were "serious," and they were having an adverse impact on the health and well-being of the wildlife. The investigators observed a number of rule violations, which are listed in their Inspection Report and depicted in photographs taken that day. See Resp. Ex. E and F. The rule violations are summarized below: The outer safety door for the cage containing two bobcats was unsecured, in violation of rule 68A-6.0023(2)(b), which requires the cage to be sufficiently strong to prevent escape; There was standing, stagnant water in the bobcat shelter, in violation of rule 68A-6.0023(1), which requires wildlife to be maintained in sanitary conditions; Both the bobcats' water container and water in the container were dirty, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean and requires clean drinking water to be provided daily; There were large amounts of old and fresh fecal matter throughout the bobcat cage, in violation of rule 68A-6.0023(5)(d), which requires fecal waste to be removed daily from inside, under, and around cages and stored or disposed of in a manner which prevents noxious odors or pests; and carrion flies were evident on the fecal matter; The bobcat cage floor had not been raked every three days, as required by rule 68A- 6.0023(5)(e); The rust in the bobcat cage that was observed during the February 25 inspection was still evident and excessive, in violation of rule 68A-6.0023(5)(e), which requires any surface of a cage or enclosure that may come into contact with animals to be free of excessive rust that prevents the required cleaning or that affects the structural strength; The broken welds on parts of the cage panel walls on the bobcat cage observed during the February 25 inspection had not been repaired, in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The cage for the two foxes measured ten feet by five feet, two inches by six feet, and did not meet the caging requirements of eight feet by six feet by six feet specified in rule 68A-6.004(4)(h)2.a.; A fox was found in a small kennel cage inside Petitioner's home under veterinary care for an injured foot in violation of rule 68A-6.0041(2), which requires animals being temporarily housed in smaller cages for veterinary care to be in cages no smaller than that required for the caged animal to stand up, lie down, and turn around without touching the sides of the enclosure or another animal; Digging was observed between outdoor fox cages exposing the bottom apron in violation of rule 68A-6.003(1)(b)1., which requires the bottom apron to be buried to prevent injury to the captive wildlife in the enclosure; Two snakes in the bull/gopher snake family were observed in their own cages without water and a ball python was observed in a glass cage without water in violation of rule 68A-6.0023(5)(b), which requires that clean drinking water be provided daily; The ball python was in a glass cage with shed skin and old fecal matter; there were two Machlot's pythons in a large cage that was littered with excessive old fecal matter and old shed skins; a boa constrictor cage had old fecal matter in it; the reticulated python cage had old fecal matter and shed skins throughout the cage; the tegu lizard cage had old feces; all in violation of rule 68A-6.0023(5)(d), which requires fecal material to be removed daily, and rule 68A-6.0023(5)(e), which requires hard floors within cages or enclosures to be cleaned a minimum of once weekly; The kinkajou was still housed in the bird cage, which was too small; there was no water or food present; the floor of the cage was covered in old fecal matter; and Petitioner admitted that the cage had not been cleaned in four days. These conditions violated rule 68A-6.0023(5)(b) and (c), which requires the animals to be provided clean drinking water and food; The third bobcat was being housed inside Petitioner's house in a spare bedroom lacking a safety entrance as required by rule 68A-6.003(1)(a); the two doors leading into the room were hollow-core doors and not of sufficient strength, and there was no required wire or grating covering the windows, in violation of rule 68A- 6.003(3)(e), which requires potential escape routes to be equipped with wire or grating of not less than 11.5-gauge chain link or equivalent; Two skunks were housed in a spare bedroom that adjoined the bobcat cage room; the floor was covered in mainly old, but some new, smeared fecal matter; there were no water bowls; the bathroom window was open and only covered by the typical bug screen associated with household windows; all in violation of rule 68A-6.0023(5)(d), which requires cages and enclosures to be ventilated to prevent noxious odors, and rule 68A-6.003(3)(h), which requires the room to be constructed of materials of not less than 14-gauge wire or strength equivalent and the escape routes to be secured; Petitioner was unable to provide records of acquisition of any animals in her possession, as required by rules 68A-6.0023(6) and 68-5.001(3)(e).6.; and Petitioner's Critical Incident Disaster Plan was only partially completed, in violation of rules 68A-6.0022(7) and 68-5.001(3)(e)5. Each of these violations is substantiated by clear and convincing evidence. At the conclusion of the inspection, Petitioner was given another copy of the Commission's rules, with the violated rules highlighted; she was told how each infraction should be corrected; she was asked if she had any questions regarding the violations; and she was given another copy of the first inspection report. A new 30-day deadline was established for correcting all violations except the source of acquisition and critical incident plan, for which she was given 60 days to take corrective action. However, no follow-up inspections were made. Petitioner contends that if the follow-up inspection on July 28, 2014, was made later than 10:30 a.m., she would have had time to feed and water the wildlife and clean their cages. However, the amount and appearance of the feces, the presence of snake skins, and the appearance of dirty water bowls in the enclosures indicates that the enclosures had not been cleaned for an extended period of time. During the first inspection, Petitioner identified the source of acquisition of all wildlife, except the reticulated python. After the first inspection, Petitioner acquired a boa constrictor, two Macklot's pythons, four tegus, two carpet pythons, one gopher snake, one bull snake, four sulcatta tortoises, one blue tongue skink (lizard), and one Central American wood turtle. However, she was unable to produce acquisition paperwork for any captive wildlife. She blamed this on the fact that many of her wildlife were donated to her or purchased at exhibitions, apparently meaning that the names of the donors or sellers were unknown. Acquisition information is essential, as the Commission uses these records to combat the illegal trafficking of wildlife. Petitioner blamed many of the facility violations on a lack of financial resources and personal issues in her life that arose in 2014, leaving her with little time or resources to comply with Commission rules. She pointed out that an injury to one of the foxes required an expenditure of almost $2,000.00 in one month alone, which drained her resources; her father was diagnosed with a terminal illness and passed away a short time later; and her fiancée required two surgeries, which prevented him from assisting her in caring for the wildlife. She also testified that she was working 60-hour weeks as a tattoo artist to support herself, which left very little time to care for the wildlife. Given these time constraints, it is surprising that she continued to acquire even more wildlife after the first inspection was made. While Petitioner maintains that the exhibition and sale of animals is intended to support her facility, it is apparent that whatever money was generated by that activity is insufficient to adequately care for the wildlife. In sum, Petitioner contends that many of the violations are unwarranted or simply technical violations of the rules, or other circumstances prevented her from taking corrective action and maintaining the facility in accordance with Commission rules. The evidence belies this contention. Although the Commission presented evidence of alleged violations of United States Department of Agriculture rules observed during an inspection by that agency on June 30, 2015, for which warnings were issued, these violations were not cited in the Notice of Denial as a basis for denying the applications and have been disregarded by the undersigned. See, e.g., Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31, 34 (Fla. DCA 1993)(matters not charged in an administrative action cannot be considered as violations). Likewise, Petitioner's contention that the Commission failed to act on her applications within 90 days, raised for the first time during her testimony, has been disregarded as being untimely. See also § 120.60(1), Fla. Stat. Although each infraction noted during the second inspection constituted a violation of state law, a criminal citation for only three violations was issued and reported to the local State Attorney's Office. These included a failure to correct the violations noted during the February inspection; maintaining captive wildlife in unsanitary conditions; and improper caging for Class II wildlife. However, the State Attorney decided to prosecute Petitioner for all violations. On July 28, 2014, criminal charges were filed in County Court. On advice of her counsel, on April 24, 2015, Petitioner pled guilty to all charges and was adjudicated guilty of maintaining captive wildlife in unsanitary conditions in violation of section 379.401(7). Besides having a fine imposed, Petitioner was placed on probation for six months and required to perform community service. Under the terms of her probation, she was ineligible to possess Class I or II wildlife for the duration of her six-month probation period. Just before her criminal case was concluded, Petitioner filed applications to renew her licenses. A major impediment to approving them is a Commission rule that requires denial of an application if the applicant has been adjudicated guilty of a violation of any provision of chapter 379. See Fla. Admin. Code R. 68-1.010(2). The same rule provides, however, that denial is not automatic, as the Commission is required to consider nine factors when determining whether to approve or deny an application. See Fla. Admin. Code R. 68-1.010(5)(a)- (i). After considering each relevant factor, the Commission issued its Notice of Denial on June 11, 2015. Petitioner then requested a hearing. Petitioner unquestionably cares for wildlife and would never intentionally harm them through inattention or lack of care. However, due to personal and financial issues, and full- time employment outside her home that consumes much of her time, she is unable to comply with Commission rules for operating a captive wildlife facility. There is clear and convincing evidence to support the Commission's denial of the applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife and Conservation Commission enter a final order denying Petitioner's applications for Class II and III Wildlife licenses. DONE AND ENTERED this 26th day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2016. COPIES FURNISHED: Eugene Nichols "Nick" Wiley, II, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Rachel Arnott 8520 Sioux Trail Kissimmee, Florida 34747-1531 (eServed) Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issue in this case is whether Petitioner should be terminated from employment with Respondent.
Findings Of Fact At all times material to this case, Mr. Davis was employed by the Sheriff's Office as a deputy sheriff. He had been employed by the Sheriff's Office for 11 years. On July 26, 2010, Mr. Davis was assigned to work a post in the healthcare facility of the Pinellas County jail, beginning at 7:00 a.m. This facility houses inmates who have medical problems. The inmates are placed in pods, and the pods are monitored by using direct supervision, meaning a deputy is stationed inside the pod with the inmates and is able to directly monitor and interact with the inmates. Additionally, the deputy supervising the inmates is able to summon medical assistance within the building for the inmates. On July 26, 2010, Inmate Kyle Howard (Mr. Howard) was housed in the pod that Mr. Davis was supervising. On that same day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was ill. Sometime during the day, two inmates came to Mr. Davis and told him that Mr. Howard was sick and throwing up a lot. Standing about 30 feet away from Mr. Howard, Mr. Davis witnessed Mr. Howard "over the toilet in a vomiting mode." Around 9:00 a.m. on July 26, 2010, the nurse, who gave medications to the inmates, gave Mr. Howard a suppository for the nausea. Sometime between 3:08 p.m. and 3:47 p.m., an inmate came to Mr. Davis and told him that Mr. Howard was not responsive. Mr. Davis went to Mr. Howard's cell, discovered that Mr. Howard was not responsive, and called for emergency medical assistance. Mr. Howard was taken to the hospital, where he was pronounced dead. One of the responsibilities of Mr. Davis was to interact with inmates to determine what problems may exist and to summon medical assistance if necessary. On July 26, 2010, Mr. Davis did not attempt to speak to Mr. Howard to determine what was wrong with him and did not call for medical assistance until Mr. Howard was found unresponsive. Mr. Davis was required to check on the inmates in the pod every 30 minutes to monitor the wellness and security of the inmates in the pod. Mr. Davis is required to check each cell and inmate during these checks. After each 30-minute check, Mr. Davis is required to record on a Daily Log Report that he performed the check. The Daily Log Reports are part of the official records of the Sheriff's Office. Mr. Davis admitted that he did not make a complete check every 30 minutes as he was required to do. He walked part of the way down the hall and observed some but not all the inmates. He entered in the Daily Log Report that he had made the checks as required. During some of Mr. Davis's shift on July 26, 2010, Mr. Davis was playing Hearts on the computer and was checking Yahoo and MSN. Prior to the incident at issue, Mr. Davis had been disciplined two times for inappropriate use of computers while on duty. Mr. Davis has admitted that he committed the violations that are charged, but contends that he should be suspended rather than terminated from his employment. The Sheriff Office's General Order 10-2 sets forth the guidelines to be used in the application of discipline. The range of penalties is based on the severity of the violation, from Level One, which is the least severe, to Level Five, which is the most severe. Failing to monitor Mr. Howard and to call for medical assistance for Mr. Howard are severe violations and are Level Five violations. Failing to accurately record his 30-minute checks, because he was not checking each of the inmates during his rounds, is also a severe violation and is a Level Five violation. General Order 10-2 provides that two Level Five violations are assigned 60 points. The disciplinary range for 60 points is a seven-day suspension to termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Mr. Davis's employment with the Sheriff's Office. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 16th day of May, 2011. COPIES FURNISHED: Sherwood S. Coleman, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Jimmie Davis 2086 Pine Ridge Drive Clearwater, Florida 33763 James L. Bennett, County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
The Issue Whether Charles River Laboratories, Inc.'s (CRL) applications for permits for its primate facilities on Raccoon Key, Key Lois, and Summerland Key should be granted and, the conditions, if any, that should be attached to the permits.
Findings Of Fact THE PARTIES Charles River Laboratories (CRL) is a corporation that breeds rhesus monkeys on two offshore islands in the Florida Keys (Key Lois and Raccoon Key) and has a land base on Summerland Key.1 The Florida Game and Fresh Water Fish Commission is the agency of the State of Florida authorized to exercise the executive and regulatory powers of the State with respect to wildlife and fresh water aquatic species. Article IV, Section 9 of the Florida Constitution provides that authority as follows: There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission's exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life. Curtis Kruer resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer lives within a thirty minute boat ride of Raccoon Key and Key Lois. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer considers his ability to use the waters in the vicinity of Raccoon Key and Key Lois to have been diminished as a result of what he perceives to be a threat to his safety and the safety of his clients posed by the free ranging monkeys on these two islands. Mr. Kruer has standing to challenge whether the subject permits protect the public safety. CRL’S POSSESSION OF WILDLIFE CRL established its monkey colony on Key Lois in 1973. It thereafter established its colony on Raccoon Key in 1976. CRL obtained its first license to possess wildlife from the Florida Game and Fresh Water Fish Commission (Commission) in 1973, and has received annual licenses ever since. These annual permits have been issued pursuant to the provisions of Section 372.921, Florida Statutes. Raccoon Key, Key Lois, and Summerland Key are within the Florida Keys Area of Critical State Concern. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk’s Channel, which is in the Atlantic Ocean. Raccoon Key is located in the Great White Heron National Wildlife Refuge approximately three miles north of Cudjoe Key in the Gulf of Mexico. The waters surrounding Raccoon Key and Key Lois are relatively shallow. There is a great deal of boating activity in the vicinity of both islands. CRL does not have an accurate count of the number of monkeys on either Key Lois or Raccoon Key and it does not maintain an accurate inventory of its monkeys. CRL’s best estimate at the time of the formal hearing was that there were approximately 200 free ranging monkeys on Key Lois and approximately 1,000 free ranging monkeys on Raccoon Key. The facility on Summerland Key is utilized for shipping and receiving, and no monkeys are permanently housed at that facility. CRL tattoos its adult monkeys, but it does not tattoo or otherwise mark its subadult monkeys. It is difficult to establish ownership of a monkey that has escaped and has been recaptured if the monkey has not been tattooed or otherwise marked. The Commission has reasonably determined that CRL should be required to keep an accurate inventory of the monkeys it possesses and that it should be required to mark for identification by tattoo, computer chip, or otherwise its monkeys that are one year old or older. An accurate inventory will assist CRL in knowing when a monkey is missing. Marking its monkeys will enable CRL to identify an escaped monkey after it has been caught. The free range monkeys on Raccoon Key and Key Lois are primarily used for breeding and are generally older monkeys that have lived in a free range society all of their lives. These free range monkeys have formed active social groups. CRL sells monkeys for use in medical research for numerous diseases and conditions affecting humans, such as osteoporosis, diabetes, Alzheimer’s disease, and AIDS. CRL’s monkeys have been isolated from human contact and are free from disease, including the Herpes B Virus. CRL’s monkeys are a valuable resource for medical research. CRL located its monkey colonies on Key Lois and Raccoon Key with the expectation that the location of the monkeys on these offshore islands would help keep the monkeys free from disease. CRL is licensed by the United States Department of Agriculture (USDA)as a dealer under the Animal Welfare Act, 7 U.S.C. 2131, et seq. CRL is prohibited by its registration under the Animal Welfare Act to sell its animals as pets or to any entity that has not been licensed either as a dealer or as a research facility pursuant to the Animal Welfare Act by the USDA.2 PRIOR CONSENT AGREEMENTS To settle a dispute with the Florida Department of Environmental Protection’s predecessor agency (the Florida Department of Environmental Regulation) CRL committed to eliminate free-ranging animals from Key Lois by the year 2003 and from Raccoon Key by the year 2008. CRL has begun to eliminate free range animals from both islands pursuant to that agreement. To settle a dispute with the Trustees of the Internal Improvement Fund filed in the Circuit Court of the Sixteenth Judicial Circuit in and For Monroe County (Case 86-190-CA-13), CRL agreed to cease its operations on Key Lois and convey title to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key no later than December 31, 2024, to the United States for inclusion in the National Wildlife System. THE APPLICATION CRL is the applicant for the permit that is the subject of these proceedings. Paul Schilling, D.V.M., has been the director of CRL’s monkey breeding activities in the Florida Keys since 1983. The permit that immediately preceded the permits at issue in this proceeding was issued by the Commission with an effective date of issuance as June 29, 1994. The date of expiration was July 4, 1995. On June 8, 1995, the Commission mailed to CRL a written renewal notice. The Commission’s policy is to accept as timely renewal applications for up to thirty days following the stated expiration date of the former permit. Under that policy, CRL timely filed the applications for the subject permits (one for Key Lois, one for Raccoon Key, and one for Summerland Key). The initial renewal application was filed after July 4, 1995, but within the thirty day grace period. Because the applications were submitted without the signature of a representative of CRL, the applications were returned to CRL for Dr. Schilling’s signature. Consistent with its practice, the Commission accepted the applications after they were signed and resubmitted as applications for renewal of the existing permits even though the completed applications were not received until July 24, 1995. The Commission’s action in treating the applications as renewals is not explicitly authorized by rule, but it is consistent with the Commission’s established policy. Under Commission policy, while a license renewal is being processed, the facility is still under license and the renewed permit is issued retroactive to the expiration date of the previous permit so that there is no gap in licensure. Under Commission policy, CRL remains a licensed facility pending the outcome of this administrative proceeding. CRL’s application states on its face that the “Company breeds Rhesus monkeys, Macaca mullata for sale to commercial laboratories.” This activity is described as being “COMMERCIAL ACTIVITY.” CRL captures most of the younger animals for sale or placement in captive breeding facilities. The application for Raccoon Key required the applicant to provide the “exact number by species” of wildlife to be possessed”. In response thereto, CRL provided the following: “Approximately 2,000 Rhesus Monkeys (Macaca mullata) animals are free range and group housed on an island off the Florida Keys (Raccoon Key).” The amount of the application fee was $25.00, the amount charged for eleven or more animals. The application for Key Lois also required the applicant to provide the “exact number by species” of wildlife to be possessed.” In response thereto, CRL provided the following: “Approximately 1,500 Rhesus Monkeys (Macaca mullata) animals are free range and group housed on an island off the Florida Keys (Key Lois).” The amount of the application fee was also $25.00, the amount charged for eleven or more animals. The application for Summerland Key was for “Holding of 0 - 8 Rhesus under clinical care." The Commission accepted and processed CRL’s application consistent with its established policies. THE APPLICABLE STATUTES Section 372.021, Florida Statutes, provides as follows: The Game and Fresh Water Fish Commission may exercise the powers, duties and authority granted by s. 9, Art. IV of the Constitution of Florida by the adoption of rules, regulations, and orders in accordance with chapter 120. Section 372.921, Florida Statutes, provides, in pertinent part, as follows: In order to provide humane treatment and sanitary surroundings for wild animals kept in captivity, no person, firm, corporation, or association shall have or be in possession or, in captivity for the purpose of public display with or without charge of for public sale any wildlife, specifically birds, mammals, and reptiles, whether indigenous to Florida or not, without having first secured a permit from the Game and Fresh Water Fish Commission authorizing such person, firm, or corporation to have in its possession in captivity the species and number of wildlife specified within such permit; however, this section does not apply to any wildlife not protected by law and the regulations of the Game and Fresh Water Fish Commission. Section 372.922, Florida Statutes, provides, in pertinent part, as follows: It is unlawful for any person or persons to possess any wildlife as defined in this act, whether indigenous to Florida or not, until she or he has obtained a permit as provided by this section from the Game and Fresh Water Fish Commission. * * * (4) Any person, firm, corporation or association exhibiting or selling wildlife and being duly permitted as provided by s. 372.921 shall be exempt from the requirement to obtain a permit under the provisions of this section. CRL’s sale of monkeys to commercial laboratories is a “public sale” within the meaning of Section 372.921, Florida Statutes. CRL’s monkey breeding operation in the Florida Keys requires a permit from the Commission pursuant to Section 372.921, Florida Statutes. THE APPLICABLE RULES Chapter 39-6, Florida Administrative Code, has been duly adopted by the Commission and is intended to implement Sections 372.921 and 372.922, Florida Statutes. The title to this chapter, “Wildlife as Personal Pets.” While this title is misleading, CRL knew that its operations were regulated by these rules of the Commission. Rule 39.6.0011, Florida Administrative Code, pertains to the possession of wildlife in captivity and provides, in pertinent part, as follows: Except as otherwise provided by this Title, no person shall possess any native or non-native wildlife in captivity except as authorized by permit issued in accordance with ss. 372.921 or 372.922, F.S., and as provided in this chapter. The provisions of this chapter shall not apply to entities operating solely as research facilities which are registered and regulated as such in accordance with Animal Welfare Act (7 U.S.C. 2131 et seq.) and regulations promulgated thereunder. Rule 39-6.002(1)(b)9, Florida Administrative Code, classifies macaques (genus Macaca) as Class II wildlife, which are wildlife “considered to present a real or potential threat to human safety." See, Section 372.922(2)(b), Florida Statutes. Under Rule 39-6.0023, Florida Administrative Code, Class II wildlife are required to be caged or, if unconfined, are required to be maintained under rigid supervision and control, so as to prevent injuries to members of the public. Rule 39-5.004(5), Florida Administrative Code, provides the following criteria pertinent to this proceeding:: The severity of the conduct; The danger to the public created or occasioned by the conduct; The existence of prior violations of ch. 372, F.S., or the rules of the commission; The length of time a licensee or permittee has been licensed or permitted; The effect of denial, suspension, revocation or non-renewal upon the applicant, licensee, or permittee’s existing livelihood; Attempts by the applicant, licensee or permittee to correct or prevent violations, or the refusal or failure of the applicant, licensee, or permittee to take reasonable measures to correct or prevent violations; Related violations by an applicant, licensee or permittee in another jurisdiction; The deterrent effect of denial, suspension, revocation or non-renewal; Any other mitigating or aggravating factors. The provisions of Rule 39-5.004(5), Florida Administrative, are the duly adopted rules of the Commission providing permitting criteria and those provisions were applied by the Commission in processing the subject permits. THE CHALLENGED PERMITS AND ADDENDUM On March 29, 1996, the Commission issued its “Notice of Intent to Issue Renewal of a Permit to Possess Wildlife for Exhibition or Public Sale with Addendum” that provided, in pertinent part, as follows: This is a notice of intent to renew the permit to authorize Charles River Laboratories, Inc. (CRL), to possess for breeding and sale, sub-human primates on Key Lois and Raccoon Key in Monroe County, Florida, in accordance with Section 372.921, Florida Statutes, and Rule 39-6, Florida Administrative Code, consistent with the following Addendum to enhance public security and prevent escapes of primates: GENERAL FINDINGS The water surrounding Key Lois and Key Raccoon (sic) and the remote location of the islands were once believed to constitute an adequate barrier to prevent escape of primates from the islands and to prevent interference with the primate population by unauthorized persons. However, primates have escaped (or have been removed without CRL’s authorization) from the islands, and the islands are not secure from those who may seek to trespass or enter upon them. Accordingly, the Commission finds that water alone is no longer an adequate barrier to prevent escape of the resident primates and to prevent entrance upon the islands by unauthorized persons. Therefore, affirmative security measures are required for public safety. CRL is subject to a Petition for Appeal of Development Order in the case of The Department of Community Affairs v. Charles River Laboratories, Inc., et al., Case No. 96-1405DRI, FLAWAC APP-96-003 (Florida Land and Water Adjudicatory Authority Commission), which asserts that the continued use of Raccoon Key and Key Lois as a primate facility will adversely impact the quality of nearshore waters, mangroves, seagrass beds and other marine resources; and therefore, the facility is inconsistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern. The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida has filed a Motion to Enforce a Consent Final Judgment in the case of Charles River Laboratories, Inc. v. Trustees for the Internal Improvement Trust Fund. Case No. 86-190-CA-13. The Commission shall fully coordinate and cooperate with the Department of Community Affairs and the Department of Environmental Protection in their efforts to resolve the above-cited actions. ADDENDUM Special Permit Conditions as to Key Lois only: CRL shall eliminate all free-ranging primates from Key Lois no later than December 31, 1996. Special Permit Conditions as to Raccoon Key only: CRL shall eliminate not less than thirty-three percent (33%) of free-ranging primates from Raccoon Key by December 31, 1996, shall eliminate not less than sixty-six percent (66%) of the total free-ranging primates from Raccoon Key by December 31, 1997, and eliminate all remaining free- ranging primates from Raccoon Key by December 31, 1998. Special Permit conditions as to security on Key Lois and Raccoon Key: CRL shall institute random water security patrols of the islands during non- work hours; CRL shall provide cellular telephones to all personnel working the islands to insure more rapid reporting and responses to escapes or thefts; CRL shall install chains and locks to all temporary and permanent caging; CRL shall provide remote sensing alarms, or in the alternative, provide day- time security personnel on site on both Keys during periods when CRL personnel are not present; CRL shall immediately tattoo or permanently mark all adult and subadult primates as they are captured and caged, so that ownership can be positively identified in the case of escape or theft. CRL shall comply with all sanitation, water disposal and waste disposal requirements provided by local, state or federal law. CRL shall reimburse the Commission in the amount of $1000 per primate, payable to the Florida Game and Fresh Water Fish Commission, as reimbursement for the Commission’s costs associated with the investigation or recapture of primates which have escaped or which have been removed without CRL’s authorization from the CRL facility. All primate escapes or thefts from the CRL facility must be reported to the Tallahassee Office, (904)488-6253, of the Commission immediately. CRL shall at all times maintain a complete and accurate inventory of all primates on Key Lois and Raccoon Key and shall submit such inventory records to the Commission (a) within thirty (30) days of the date of issuance of this permit, (b) at the Commission’s request, upon an escape or unauthorized removal of a primate from the facility, and (c) no later than thirty (30) days prior to the expiration of this permit. The inventory shall include the total number of primates held in field cages on each island, the total number of free-ranging primates on each island and numbers of primates brought to the CRL facility as of January 1, 1996. This permit may be subject to revocation, suspension, or non-renewal in accordance with Rule 39-5.004, F.A.C. Nothing herein shall authorize CRL to construct or maintain any structure or facility that would be in violation of the Monroe County Comprehensive Land Use Plan, the Monroe County Code and the Principles for Guiding Development in the Florida Keys Area of Critical State Concern or in violation of any final order, judgment, or settlement agreement thereto in the case of Department of Community Affairs vs. Charles River Laboratories, et al., DOAH Case No. 96- 1405DRI, FLAWAC APP-96-003 (Florida Land and Water Adjudicatory Commission). This permit will be effective twenty- one (21) days from the date of receipt of this notice by the applicant or within twenty-one (21) days from the date of publication of this notice, whichever is later. This addendum to permit will expire concurrent with the expiration of the Permit to Possess Wildlife for Exhibition or Public Sale, unless otherwise authorized by the Executive Director. THE 1990 CORRESPONDENCE On September 21, 1990, Robert M. Brantly, the Commission’s Executive Director, wrote to Dr. Schilling a letter that contained the following discussion on the issue of safety: F.A.C. 39-6.003(1)(a), requires, “A fence sufficient to deter entry by the public shall be present around the premises wherein Class I or Class II animals are housed or exercise outdoors.: There are no perimeter fences around Key Lois or Raccoon Key, and Rhesus macaques are classified as Class II animals. In the past, we have considered the water surrounding your facilities as a barrier to escape and public access. During the August 24th inspection, we found that water alone does not meet the intent of the regulation requiring a security fence. Past security breeches documented on that inspection included: The holding compound was broken into on Raccoon Key. The intruders released numerous primates. It is also possible that a theft of some primates occurred. This incident occurred four years ago. The holding compound was broken into again about two or three years ago. A macaque escaped twice (same animal) about five years ago. Employees recaptured the animal on Little Crane Key. A generator was stolen from one of the islands. You did not report the escapes to us as required in you agreement with the Commission, nor were we made aware of the security problems. To prevent future security breeches, you must construct a fence capable of deterring entry by the public and preventing the escape of the macaques from the islands. As an alternative to a monkey- proof fence, you may confine the primates in enclosures that meet minimum pen specifications; however, you must still construct a fence that will deter entry by the public. In October 1990, there was a meeting between Col. Brantly and Dr. Schilling and Mr. Routa, the attorney for CRL. On November 5, 1990, Col. Brantly wrote to Dr. Schilling a letter that contained the following: Having met with you and Mr. Routa on October 23, 1990, we now determine that the Laboratory [CRL] may continue to operate under its current captive animal permit without the perimeter fence required by Rule 39-6.0023, Florida Administrative Code. This rule requirement was not applied to the Laboratory because the water barrier around the keys was believed to provide adequate security to prevent monkeys from escaping and unauthorized persons from entering the facility. However, if a primate escapes or if unauthorized entry by the public were to occur, the water barrier would no longer be considered adequate security and appropriate action under Rule 39-6.002, F.A.C., would be taken. We ask that the Charles River Laboratory report, immediately and in writing, all incidents of escape of any monkeys from the islands or unauthorized public entry of the facilities. We further require, in accordance with Rule 39-9.002, F.A.C., that the Laboratory apply for a permit to capture any monkey which has escaped the islands. (Emphasis added.) The facts reflected by Col. Brantly’s two letters were accurate. ESCAPES SUBSEQUENT TO 1990 There have been several escapes of monkeys from Key Lois or Raccoon Key since the Commission’s 1990 letters. In addition, there have been unauthorized intrusions on these islands since 1990. On or about August 4, 1993, a CRL monkey (tattoo #81- 688) escaped from Raccoon Key to Little Crane Island which is approximately one-half mile from Raccoon Key. Little Crane Island is part of the Great White Heron Wildlife Refuge. The staff of the wildlife refuge shot and killed the monkey after attempts to tranquilize it failed. In 1994, a monkey was sighted on Big Torch Key and a monkey was also sighted on Little Torch Key. Both of these keys are approximately one-half mile from Raccoon Key. The monkey on Little Torch Key was a CRL monkey (tattoo #F-513), and was recaptured by CRL staff. The ownership of the monkey sighted on Big Torch Key was not established. In 1995, a CRL monkey escaped to Cudjoe Key, which is approximately two miles from Raccoon Key. This one-year old male was captured and returned to CRL. A second CRL monkey was sighted on Cudjoe Key in 1995. The Commission’s investigation revealed that this monkey had been taken from Key Lois by intruders and subsequently released. Another CRL monkey was stranded on a channel marker off Big Torch Key and recaptured by CRL. Rhesus monkeys are capable of wading or swimming from Raccoon Key and Key Lois to nearby islands. Most of the islands in the vicinity of Raccoon Key and Key Lois are capable of sustaining monkeys. Several of these nearby islands are residential areas. There is a lack of security for the CRL facilities on Raccoon Key and on Key Lois. There is no security personnel on either Raccoon Key or Key Lois after normal working hours. The additional security measures required by special permit condition 3 and its subparts are reasonable whether the CRL animals remain free range or are caged. POTENTIAL DANGER TO THE PUBLIC Rhesus monkeys have been known to attack humans if cornered or sufficiently provoked. Free range monkeys grow to approximately 30 pounds and are capable of inflicting serious injury on a human. Because they present a potential to humans, rhesus monkeys are appropriately classified as Class II wildlife by the Commission. There has not been an injury to a member of the public since CRL began its operations in 1973. This absence of injury is primarily attributed to the fact that the CRL monkeys are shy of humans because of the environment in which they were raised. Instead of attacking humans, it is more likely that an escaped monkey would run from humans. Although there is no perimeter fencing around either Raccoon Key or Key Lois, it is not appropriate to recommend such fencing as a means of preventing escapes because Rhesus monkeys can escape from fencing. The potential danger to the public posed by these free ranging animals can be eliminated only by removing all free ranging animals from both islands. The Commission has appropriately determined that CRL should be required to eliminate the free range populations from both islands. With adequate time, CRL can safely and humanely remove all free-ranging monkeys from Key Lois and Raccoon Key and continue its breeding operations with its monkeys being caged. If CRL elects to continue its operations by using cages on Key Lois and Raccoon Key, it would have to obtain all pertinent permits, including building permits from Monroe County, in order to construct the necessary cages to house the former free ranging monkeys. ENDANGERED SPECIES Silver rice rats are listed by the U.S. Fish and Wildlife Service and by the Commission as an endangered species. Raccoon Key provides a valuable habitat for this endangered species. The free-ranging monkey population has enhanced Raccoon Key as a habitat for silver rice rats because of the monkey chow and the fresh water that are made available. The additional caging that will be necessary for CRL to construct to eliminate the free-range population should be located in areas that will not destroy the silver rice rat habitat. Although Raccoon Key is within the National Key Deer Refuge, there was no evidence that Key Deer have historically used Raccoon Key. Key Deer would be more likely to use Raccoon Key if the monkeys were not present. Monkeys have destroyed habitat used by nesting birds and the mangrove terrapin. In determining that the free range monkeys should be eliminated, the Commission has considered the impacts of the free ranging monkeys on Raccoon Key and Key Lois on these species. Since the Commission’s responsibilities extend to these species, it was appropriate for the Commission to consider these impacts. HURRICANE VULNERABILITY Key Lois and Raccoon Key are vulnerable to hurricanes. These islands and all structures thereon would likely be inundated if a major hurricane were to strike them. While free- ranging monkeys would have a good chance of surviving a hurricane, any caged monkeys on Key Lois and Raccoon Key would likely drown when the storm surge inundates the cages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order that renews the subject permits with the special conditions recommended herein. DONE AND ENTERED this 23rd day of January, 1997, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997.
Findings Of Fact Petitioners, Joseph Redman, Stanley Blanding, and Douglas Laverne Adams are inmates at UCI. Blanding lives in the southwest unit housing and three times a day is required to walk from that facility to the central mess facility. He is not issued thermal underwear or a raincoat even though he works outside a great deal of the time. Issuance of those items is discretionary with the inmates' supervisor who has consistently refused to draw and issue these items. Blanding contends that during the past winter, he became so cold working outside in the rain and cold, he caught a cold for which he was treated only with aspirin. Because of the situation, he refused to work without additional clothing and was, because of his actions, placed in confinement. Blanding also contends that thermal underwear and rain gear is issued in a discriminatory fashion. He states that the people who work in the laundry get raincoats and thermal underwear, yet he travels the same distance in the outside and does not receive it. His quarters are inadequately heated and in many instances the windows are broken out. Inmates tried to put up cardboard to keep out the cold on occasion and even tried to close the inner doors to preserve what warmth they could. They were; allegedly, told they could not do this. He has repeatedly tried to convince his supervisor to issue the thermal and rain gear on an equitable basis but has been unsuccessful. Nobody in his shift who works outside has received this clothing even though his supervisor has repeatedly promised to get it for them. His letters and a personal visit to Mr. Connors, the laundry manager and clothing supply officer, to explain that he and his co-workers worked outside without adequate protection met with no success. Blanding is an outside laborer whose duties entail any manual labor that has to be accomplished outside. DOC has a rule which provides that when the temperature falls below 40 degrees Fahrenheit, including the chill factor, outside work is terminated. In practice, however, Blanding works 8 to 9 hour shifts which include outside work regardless of the 40 degree rule if the supervisor so directs. He admits, however, that during the cold weather this past winter, he worked outside only approximately 30 percent of the time. Even so, when he went to the doctor and requested a letter to authorize thermal underwear, he says he was advised that such a request was outside the doctor's authority. Joseph Redman lives in the west unit at UCI and is required to participate in outside activities as exercise for his back condition. However, on those days when the weather is inordinately cold or rainy, he has to cancel this beneficial exercise because of the lack of either thermal or rain clothing. If he desires to eat, it is necessary for him to make a 400 yard round trip to the dining facility several times a day. Respondent's rule does not take into consideration an individual's physical condition or how far he has to go to eat. Even if he does not work outside, it is still necessary for him to spend extended periods of time outside in cold or inclement weather. Redman says that the doctor agrees that this clothing is appropriate but denies that he has the authority to request its issue. Petitioner Adams' job requires him to travel around to the various compounds and to attend various call- outs approximately 120 yards from his quarters. Cold weather can often keep him inside, however, he is required to go outside to eat each meal. In practice, even though they do not have raincoats, in rainy weather the inmates are prohibited from standing under available shelter but must remain in line in the rain even if suffering from a bold or other illness in order to eat. Inmates also are not allowed to provide any type of protection for themselves such as a towel or other headcovering unless it Is issued and in most cases, it is not. Adams contends his dormitory is one in which the heating system is inadequate for cold weather. He wrote to the inspector for DOC and talked to the Assistant Superintendent who, in all fairness, tried to correct the problem but could not. When Adams asked for thermal underwear to be used as pajamas, his request was denied because he does not work outside and therefore fall within the category of individual to who this clothing is normally issued. Though not a Petitioner here, inmate Tommie Greene has been at UCI for approximately four weeks and has not had any cold weather experience at that facility. However, for the year prior to coming to UCI, he was an inmate at the Florida State Prison, adjoining UCI. In that facility, some cells were adequately warm and some were not. This situation was the same at Baker Correctional Institution where he was also incarcerated for a time. Depending on the floor level the heat may or may not be adequate. No thermal underwear was issued and it was several hundred yards from his living area to the dining facility. In order to eat, inmates had to line up outside the dining facility without raincoats. If it was raining and one wished to eat, one stood out in the rain. This same procedure, according to Greene, applies to UCI where the distance from his housing to the dining facility is more than 100 yards. If it is cold, he must be in it if it rains, he must also be in it, and the only way to avoid getting wet is not to eat. There are approximately 90 people in his area who eat at the same time and they go from the cell area to the dining facility in line with an officer leading. The standard clothing issue provided to inmates at UCI is outlined in UCI Operating Procedure No. 85-02, revised in March, 1985. This procedure calls for each inmate to be issued: 1 blue jacket 3 blue shirts 3 pairs blue trousers 1 web belt 1 pair boxer shorts 1 pair socks pair high top shoes In addition, some prisoners whose work calls for it, are issued white shirts and trousers instead of the blue. The shirts, trousers, and jacket are made of a polyester cotton blend of light weight. The jacket is lined with a light flannel. For linen each inmate is issued: sheets 1 towel 1 blanket 1 pillow case According to Mr. Conner, the laundry manager and the individual responsible for the issue of clothing to the inmates, thermal underwear is issued only to those inmates who work outside 8 hours a day. This is because of a lack of money. However, he contends that if a doctor prescribed it, he would issue thermal underwear to individuals who do not meet the other criteria. T- shirts for use as underwear were not being issued until recently. However, they are now a part of the issue and will be provided to any inmate who wants one. Straw hats are issued to outside workers through their supervisors who make the determination as to which inmates get them. Raincoats are not issued but are available for purchase by inmates in the institution canteen at a cost of under $3.00 each. According to Mr. Gunning, inmates who work outside can get raincoats if the department head draws them directly from the warehouse and issues them. The same applies to thermal underwear. When prisoners are dissatisfied with the procedure for issuing clothing and equipment, they can either file a formal grievance or write an informal note to the Superintendent or Assistant Superintendent. Admittedly, until recently, the institution's package rule prohibited inmates from receiving any type of civilian clothing through the mail and as a result, sweat shirts, jogging suits; and other items of a similar nature were prohibited and returned to the sender if sent in. Recently, however, the rule was changed so that inmates are now allowed to receive gray or white sweat shirts from outside correspondents even though jogging suits are still prohibited. Mr. Gunning admits that certain buildings at UCI, including the dormitory identified by Petitioners, do have problems with heat, but it is not, he says, a chronic problem. There is a chronic problem regarding broken windows which are broken by the inmates as fast as they are repaired. Since cold and climate conditions are considered a health and comfort item, available repairs to the living areas are made as quickly as possible on a priority basis. He does not see wet clothing as a problem. If it were, he would have heard about it sooner because the inmates would, without question, complain about it. He has heard no complaints about this subject and notwithstanding the allegations by inmates at the hearing that they are not allowed to change their clothing if wet, they are allowed to change if necessary. Mr. Singletary indicated that the rule on the issue of clothing calls for each inmate to have three sets of clothing in his possession notwithstanding the Petitioner's claim that they are issued only one set at a time. It is more likely that Mr. Singletary's isolation from the inside conditions at UCI renders his opinion less than valid. Accordingly, it is found that most likely the inmates are not issued all their uniforms at one time. This has no real bearing on the ultimate issue of the adequacy of the rule however. He admits that thermal underwear is not issued to all inmates. It is seasonal and issued to those inmates who work outside and need it. Raincoats are issued as needed for work and those inmates who are not issued raincoats can buy them at a reasonable price. Many inmates who work for PRIDE and the canteen receive direct pay. These include inmates working at the furniture factory, the tag plant, the abattoir, and other facilities and many other inmates receive money from outside sources. While some buildings may be underheated in the coldest weather, Mr. Singletary contends that in general, the buildings are warm enough. Recognizing that the package permit rule now permits inmates to receive sweatshirts through the mail, Mr. Singletary indicated that the rule may again be amended to permit inmates to receive thermal underwear through the mail.
The Issue Whether Petitioner’s application for a license to possess Class II Wildlife for exhibition or public sale should be approved.
Findings Of Fact FWC is the state agency with exclusive jurisdiction to regulate all wild animal life in Florida. See Art. IV, § 9, Fla. Const.1 1 All references to the Florida Constitution, Florida Statutes, and Florida Administrative Code are to current versions that have not substantively changed as applied to the facts in this case. All persons who possess captive wildlife for the purposes of public display or public sale must have a license from FWC. See § 379.3761(1), Fla. Stat. By rule promulgated by FWC, categories of wildlife for which a license is required are broken down into three classes. See Fla. Admin. Code R. 68A- 6.002. Generally, a person cannot possess Class I animals for personal pets unless they came into their possession prior to 1988. Class I animals include 24 different species generally considered extremely dangerous, and include wildlife such as chimpanzees, gorillas, orangutans, baboons, leopards, jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and Komodo dragons. See Fla. Admin. Code R. 68A-6.002(1)(a). Class II animals include 38 different species that may, with a proper license, be possessed as personal pets or for commercial purposes. Class II animals have the potential to cause harm but not to the extent of Class I animals and include wildlife such as Howler monkeys, Patas monkeys, Vervet monkeys, Macaques, bobcats, wolves, wolverines, honey badgers, and alligators. See Fla. Admin Code R. 68A-6.002(1)(b). Class III animals include wildlife not listed as Class I or II. See Fla. Admin. Code R. 68A-6.002(1)(c). The application at issue in this case is Petitioner’s application, ID 75226, to possess, exhibit, or sell Class II wildlife. Petitioner’s application, dated September 9, 2019, identifies Macaques, Patas, Vervet, Grivet, and Green monkeys as species that he does not currently possess, put plans to possess. By letter to Petitioner dated February 5, 2020 (Denial Letter), FWC advised Petitioner that his application was being denied because of prior violations of law and FWC rules regulating wildlife. In particular, the Denial Letter states that on June 19, 2017, FWC investigator Rick Brown found Petitioner in possession of a Vervet monkey without a license. The Denial Letter explains that, on that same date, Petitioner told investigator Brown that Petitioner had sold a lemur, two squirrel monkeys, and an artic fox earlier in that year, but was unable to provide documents for those sales as required by FWC rule. According to the Denial Letter, Petitioner was issued misdemeanor citations for those violations and, on July 21, 2017, Petitioner received adjudication other than acquittal or dismissal for those violations. The Denial Letter also states that, during an investigation of Petitioner at a new location on February 13, 2018, conducted by FWC investigator Steve McDaniel, it was discovered that Petitioner had sold two ring-tail lemurs to an unlicensed individual on December 15, 2017, and that at the time of the sale Petitioner’s license was expired and was not otherwise valid for sales from Petitioner’s new location. The Denial Letter further states that as a result, Petitioner was issued a citation for selling the lemurs without a valid license and a written warning for selling to an unlicensed individual. According to the Denial Letter, on May 22, 2018, Petitioner received adjudication other than acquittal or dismissal for the citation. The Denial Letter concludes: Pursuant to Rule 68-1.010 [Florida Administrative Code], and due to facts stated above, your application has been denied. We are processing your application fee for a refund, and you should receive it within 21 days. During the hearing for this case, the factual basis set forth in the Denial Letter was demonstrated by a preponderance of the evidence provided by the testimony of FWC investigators Brown and McDaniel, the documentary evidence, and Petitioner’s own testimony. Indeed, the evidence showed that during an investigation conducted by investigator Brown on June 19, 2017, Petitioner was found to be in possession of a Class II Vervet monkey without a proper license. Petitioner has never had a Class II license. It was also demonstrated that, at the time of that investigation, Petitioner was unable to produce sales records for a lemur, two squirrel monkeys, and an arctic fox that he had sold earlier that year. While Petitioner provided some documents at the hearing purporting to be records related to those sales, they were insufficient to overcome the preponderance of the evidence in this case. At the hearing, Petitioner admitted that he paid the fine from the citation issued against him for possession of the Vervet and lack of sales records. In addition, it was shown by a preponderance of the evidence that on December 15, 2017, Petitioner sold two ringtail lemurs to an unlicensed individual under a Class III license that was expired and that, prior to its expiration, had only been valid at his previous location, instead of the new location where the sale had taken place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order denying Petitioner Gregory Nelson’s application for a license to possess Class II wildlife for exhibition or public sale. DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2020. COPIES FURNISHED: Gregory Nelson 23033 Brouwerton Road Howey-in-the-Hills, Florida 34737 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
The Issue Whether Respondent established that this case meets the criteria for the denial and revocation of Petitioner’s Class I, Class II, and Class III captive wildlife permits pursuant to Florida Administrative Code Rule 68-1.010 and chapter 379, Florida Statutes (2015).1/
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: This action arises from FWC’S decision to revoke and deny Petitioner, Jerry Holly’s, licenses to possess Class I, II, and III wildlife for exhibition and sale and his game farm license application. Through his company, Shilo Zoo and Park, Petitioner owns and operates a facility on 817 acres near Micanopy, Florida, where he raises animals for sale. Petitioner has held his licenses since 2002. FWC first inspected Petitioner’s animal operations on June 12, 2002. Investigator, Rick Brown, conducted the inspection and found certain caging and enclosure deficiencies. By the next inspection, conducted on October 2, 2002, Brown reported that Petitioner had made the necessary corrections and recommended permit approval. By April 7, 2004, Petitioner’s inventory of animals had increased significantly, and on that day, Investigator, Janice Jones, accompanied by Brown, reported observing additional caging, enclosure, and other deficiencies, including: the zebra fencing was four feet high instead of the required six foot height; the lemur caging was constructed of 18- gauge material rather than the required 14-gauge material; the bongo enclosure was six feet high rather than the required eight foot height; the prevost squirrel caging was constructed of 16-gauge material rather than the required 14-gauge material; no stimulation or manipulation devices were provided to the lemurs; and when asked, Petitioner was unable to produce business transaction records upon request. Regarding the April 7, 2004, inspection, Jones testified that Petitioner “had a couple issues at the time, but overall the facility was very well.” By the time of the next inspection, on June 14, 2004, Petitioner had corrected all of the deficiencies noted in the April 7, 2004, inspection. On January 28, 2005, Investigator Jones reported that Petitioner’s enclosures exceeded caging requirements, and she recommended that Petitioner be issued a Class I license for Gibbons monkeys. At the time, the rules required a five-foot fence and Petitioner had an eight-foot perimeter fence encircling his property. Investigator Jones reported on January 14, 2007; February 12, 2007; June 21, 2007; June 22, 2007; October 22, 2007; December 19, 2008; and January 19, 2010, that Petitioner’s enclosures met or exceeded minimum requirements. Petitioner also was approved for rhinoceros and bears, and Jones reported that Petitioner’s animals appeared healthy. Although Jones testified that “more likely than not,” Petitioner could not document all of the coming and going of his animals, her June 2007 and December 2008 reports state that Petitioner’s acquisition paperwork was in order. Jones testified that she believed that she inspected Petitioner’s facility at least one more time after January 2010, and she could not recall any discrepancies. While Jones was Petitioner’s inspector, the FWC sometimes asked Petitioner to hold animals that had been abandoned or were under quarantine. In one instance, the agency issued Petitioner a special permit to keep a chimpanzee. On one occasion, Petitioner contacted Jones about an alligator that was on his property and asked for her assistance in removing it. Petitioner’s former USDA Inspector, Dr. Thomas Callahan, testified that during his tenure, Petitioner’s animals and his facility looked very good. He also inspected Petitioner’s paperwork and could not recall ever having a problem. Dr. Callahan retired in 2006. On April 21, 2009, a patas monkey escaped from Petitioner’s facility. Jones believed that the monkey escaped during a transfer and not due to a problem with caging. She had inspected the caging and found that it was acceptable, “everything looked good.” She also found that Petitioner was forthcoming about the monkey and did not try to hide the escape. Jones testified that an escape in and of itself is a violation of FWC rules. Petitioner hired Kim Greely in 2012 to take care of his animals and the paperwork. In addition to Ms. Greely, Petitioner employed other individuals to care for the animals on a daily basis. If Ms. Greely was not available on a given day, another employee would cover for her. The first FWC inspection that took place after Greely was hired occurred on October 17, 2012. In that inspection, Investigator Brown noted several caging, maintenance, and sanitation problems, including: the spider monkey cage door was unlocked; caging U-nails were pulling out of the two-by-six beams, creating a gap between the beam and the containment wire; dens for the animals were not accessible to the animals; excessive rust was present on much of the facility caging; a broken padlock on the Patas monkey cage was discovered. Another padlock was located and the cage was locked during the inspection; the wooden nest box in the Patas monkey cage needed to be secured as it was wobbling and posed a risk of injury to the animal; most of the monkey cages had no manipulation devices or stimulation devices; some of the animals had no elevated shelving or had broken elevated shelving. This is required for some species, as they prefer to sit on an elevated perch rather than on the ground; there was a torn metal conduit covering the guillotine cable to the gibbon lockdown area, which posed a risk of injury to the animal; erosion was occurring under the exterior door of the gibbon cage and beneath the Ringtail lemur cage; one of the corners of the foundation supporting two cages was unsecured and not stable. The cages were teetering on a couple of pieces of wood and a cinder block; rotted and/or moldy lumber and other materials were used for and present in the caging; there were unsecured seams in the caging materials, causing gaps in the caging, which poses a risk of escape; in many of the cages, the material used to construct the cage was not of sufficient strength; three of four dens had rat feces, and in one den, three live rats were observed; excessive feces were present in a lemur cage; standing water was present in the Tamarin cage. According to Brown, the excessive number of deficiencies indicated that Petitioner was unable or unwilling to comply with the rules. Brown issued a criminal citation to Petitioner as a result of the October 17, 2012, inspection. On April 25, 2013, Investigators Rick Brown and Wayne King conducted a follow-up inspection. Brown noted in his inspection report that most of the violations were corrected, but some also remained uncorrected. The report also reflects that the majority of Petitioner’s enclosures were in compliance with FWC requirements. Consistent with Brown’s report documenting corrections, Brown sent an e-mail on May 21, 2013, to Mindy Wagner, FWC senior clerk, stating, “I was out there a couple weeks ago and Mr. Holly has made some serious progress to correct those identified issues. As for being on the up and up, seems to be so far.” On May 29, 2014, Investigator Brown and FWC Officer, John Wilke, conducted a follow-up inspection. Brown noted in his inspection report that most of the violations noted during the April 25, 2013, inspection had been corrected. However, several additional rule violations were documented, including: two-by-six boards used to close a gap between two sealing panels in a cage were rotting and were pulling apart; an elevated den needed to be attached to the caging and actually elevated rather than sitting on the floor of the cage as was discovered; rust on a horizontal beam on a cage needed to be treated; the broken weld in a ceiling panel needed to be repaired; manipulation and stimulation devices still needed to be provided in some of the cages; dens needed to be provided in some cages. Dens are required to provide the animal a place to retreat to and to provide protection from the elements; some of the cages did not meet the required dimensional requirements or were too small; no safety entrance for the Capuchin monkey cage was present; Petitioner was housing a macaque in a cage without a safety entrance. This meant the animals could not be safely removed from the cage to allow for cleaning; the floor of the macaque cage was covered with feces, likely as a result of not having a proper safety entrance; some of the caging materials did not meet the strength requirements; a portion of the zebra fencing had been damaged, bringing the height to five feet, two inches, rather than the required six feet; the zebra fencing wire was rusting and sections were becoming unattached, creating an inconsistent containment barrier; the giraffe paddock had been damaged and was in need of repair. Brown acknowledged that several of the caging discrepancies noted in the May 29, 2014, inspection involved violations of a few inches. He testified that if he tacitly approved cages off by a few inches it would be a “slippery slope” and he would face questions from other licensees about the standards. Brown likened the concept to a highway patrol officer who does not give a ticket to a driver he pulled over for going 80 miles per hour. It creates tacit approval for circumstances that are not authorized. Investigator, Steve McDaniel, conducted the next inspection on November 24, 2014. Investigator Brown was not with him. It was the first time McDaniel had been to Petitioner’s facility, and his inspection report was lengthy. McDaniel found several cages with rust, some excessive, some just surface rust, and some of the cages were not sanitary, with old fecal waste matter. There were also cages that were too small and some unlocked cages were observed. On cross-examination, McDaniel admitted that several of the pictures in his report in fact depicted surface rust, not excessive rust. McDaniel also clarified that what he was describing as unlocked cages actually were open doors to sheds that contained cages. The cages within the sheds were locked. McDaniel acknowledged that had he seen an unlocked cage within a shed he would have noted it on the report. McDaniel further conceded that most of Petitioner’s cages were actually larger than what the agency required. The only ones that had issues had some lemurs and a Celebes ape. The lemur cages were off by five, six, or eight inches. Investigator McDaniel returned to Petitioner’s facility on December 11, 2014. He was with Investigator Brown to “check up on some things” and because of a tip of some unauthorized animals being kept there. The report states that McDaniel and Brown found two animals with the characteristics of bobcats. In addition, the report noted that animals were in substandard caging due to the cold weather outside, and only on a temporary basis. McDaniel also noted that there were new shelters being built for the cages in the lower area. The lemur cages and capuchin cage had been modified with four-layer plywood, one-half inch thick, in order to increase the height of the cages to exceed the required height. However, the length and width of the cages were still too small, and the report noted that Petitioner would need to request a deviation. Following the December 11, 2014, inspection, McDaniel issued a criminal citation, which was still with the state attorney’s office at the time of the hearing. McDaniel’s report from his November 24, 2014, and December 11, 2014, inspections do not indicate whether any of the deficiencies from the May 29, 2014, inspection had been corrected. Comparing the two reports, however, it is apparent that many of the violations noted in the earlier report had been corrected as of December 11, 2014. And as noted above, McDaniel reported that on December 11, 2014, Petitioner was in the process of correcting issues identified on November 24, 2014. On January 28, 2015, Investigators Brown and McDaniel conducted an unannounced inspection and took numerous photographs of their observations. They were there because of a tip that some animals were being kept on the property illegally.2/ Several violations were noted during the inspection, including: the zebra perimeter fencing had not been corrected and was not of the required height; sanitation and caging issues were still present at the facility; the Celebes monkey caging material met the strength requirement, but did not meet any of the other requirements; the Patas monkey cage and the Celebes apes cages still lacked a safety entrance; some of the cages still did not meet minimum size requirements. Also during this inspection, it was discovered that an alligator was being maintained on the second floor of the barn. Petitioner was not licensed to possess an alligator, and the animal had been placed in a cage that was too small. Petitioner was in Sri Lanka at the time the alligator was found, and it is unclear from this record who put the alligator in the cage. The alligator was unharmed, and the FWC officers released it to the wild. Investigator McDaniel returned on February 12, 2015, to deliver a copy of the Notice of Intent to Deny/Revoke to Petitioner, and to check on the Celebes ape and Patas monkey. On that visit, he noted several prairie dogs in an 18-square- foot cage. According to McDaniel, most of the animals had extreme hair loss, which he surmised could be a sign of disease or stress due to the small cage. McDaniel also found that the Celebes ape had not been moved to a larger cage, although the patas monkey had been moved. Petitioner testified that he had about 20 prairie dogs in an 18-square-foot cage. The animals were being temporarily kept in the cage, as Patty Rivers (the owner of a company that provides animals for motion pictures) was coming over to see them. The animals were missing hair, which Petitioner testified could simply have been due to annual shedding. Investigator Brown assisted in drafting a denial letter to Petitioner concerning Petitioner’s prospective employee, Cindy Bardin. In one of his comments regarding the draft letter, Brown recommended that the agency remove a statement asserting that Petitioner’s violations were putting the public at risk. Over Petitioner’s objection, evidence of an inspection conducted on June 12, 2015, which was after issuance of the Notice of Intent to Deny/Revoke on March 10, 2015, was received in evidence. The investigative report notes that the majority of the deficiencies noted in earlier inspections had been corrected, however there were some minor ongoing and new violations observed. Specifically, some exterior cage doors were found unlocked (although the interior doors were locked), some cages were still without manipulation devices, and sanitation issues still remained in some of the cages. Joanie Swanson testified on behalf of Petitioner. She holds a Class III license and owns capuchin monkeys. In 2013, when her husband was getting ready to retire, they obtained a list of Class I and Class III licensees from FWC and looked at about ten properties in central Florida to house their animals, including Petitioner’s. According to Ms. Swanson, Petitioner’s facility was far superior to the others they visited. The Swansons visited Petitioner’s facility about a half dozen times before they moved any animals, and every time it was clean and beautiful. Petitioner’s facility satisfied all of the Swansons’ requirements. It was a safe environment, it was gated, and the caretakers were very good. It was clean, safe, secure, licensed, and the cages were bigger than she expected. The facility had automatic water. Ms. Swanson testified that she was amazed at what some of the other facilities she visited did not have. Ms. Swanson’s testimony regarding the quality of Petitioner’s facility in 2013 is credited. Ms. Swanson also met Kim Greely, Petitioner’s employee. When she first met Greely, Greely told her that Petitioner was very protective of his animals. Greely said that if there ever was a problem with an animal, Petitioner would make sure that it was taken to the vet. He would drop everything to care for his animals. The evidence established that it was not uncommon for the FWC inspectors to request business records documenting the sale and acquisition of animals, and to be told that the records were not available. And occasionally, when records were provided to the inspectors, they were incomplete. It is important that animals are sold to a licensed person to ensure that the person taking it has the required experience and the required caging to properly care for the animal. Business transaction records document if this occurs during a sale, purchase, or transfer. Moreover, records of sale, purchase, or transfer can be important to track disease transmissions, particularly in birds. Records of sale, purchase, or transfer are also important to prevent the illegal trade of wildlife. Petitioner buys most of his animals in sales in Tennessee, Missouri, and Ohio. At the sales, Petitioner gives the seller an acquisition form. The seller fills out his part and then Petitioner’s employee, Kim Greely, would complete the form. When Petitioner received a bill listing the animals he bought, he would give the records to Greely. Petitioner entrusted Greely with keeping the records of the transactions. She received all of the sale bills and was supposed to keep the records. Petitioner was under the mistaken belief Greely was providing the records to the inspectors. Greely apparently told Investigators Brown and McDaniel that she only received records that Petitioner provided to her. In any event, Petitioner acknowledged at hearing that he was ultimately responsible for keeping records of transactions and providing them to inspectors when requested. The evidence established that on several occasions Petitioner failed in this responsibility. Petitioner admitted to pleading guilty in 2004 to misdemeanor charges for improper caging, and adjudication was withheld. More recently, Petitioner pled guilty in 2012 to failure to maintain cages in compliance with regulations, and adjudication was withheld. Petitioner acknowledged that there have been three escapes from his facility in the past 15 years. Hornbill birds escaped in 2004, and a Patas monkey escaped in 2009. No information was provided regarding the third escape. Likewise, it is unclear as to how the animals escaped, how long they were fugitives, or whether the escapes were attributable to deficient caging. No evidence was presented that any of the escaped animals were injured as a result of their escape, or that any human beings were adversely affected in any way. Petitioner has been licensed by FWC since 2002 and it is undisputed that his livelihood will be impacted by FWC’s proposed action. In Petitioner’s words, the financial impact would be “devastating”, possibly leading to bankruptcy. However, the extent of the impact was not quantified as Petitioner did not provide records of sales or profits from sales, or give an indication of his annual income earned from the sale of wildlife. At the conclusion of Petitioner’s testimony, the undersigned questioned Petitioner about the cause of inspection deficiencies at this facility in recent years: “HEARING OFFICER: You were here when Inspector Brown testified that in his opinion he doesn’t know whether you were unable or unwilling to comply with applicable FWC regulations. Do you agree with the notion that you are unwilling or unable to comply with those regulations? THE WITNESS: I had some, again, health issues early on. I’m past that now, and I think that I can continue on. Again, I was more of a part-time guy before. Now, again, I think I have to be full time until I get all this turned around. HEARING OFFICER: How do you plan to get it all turned around? THE WITNESS: Well, I will be at that farm every day making sure everything is done at this point. I have an excellent girl that – again, she also has a license, so she is more than capable of taking care of everything, but I will be there looking over her shoulder and that’s how I explained it to her when I hired her.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further Recommended that the final order suspend Petitioner’s licenses to Possess Class I, Class II, and Class III wildlife for exhibition or public sale and his game farm license for a period of six months, and thereafter, until such time as an on-site inspection of Petitioner’s facility reflects substantial compliance with all applicable FWC statutes and rules. DONE AND ENTERED this 1st day of February, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 1st day of February, 2016.
The Issue Whether Respondent’s intended decision to award a contract to Intervenor, Global Tel*Link Corporation (GTL), for telecommunication services pursuant to an “INVITATION TO NEGOTIATE FOR INMATE TELECOMMUNICATIONS SERVICES FDC ITN-17-122” (the ITN), is contrary to Respondent’s governing statutes, its rules, or the ITN specifications; and, if so, whether it was contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: DOC is the state agency responsible for the supervisory and protective care, custody and control of all inmates incarcerated by DOC, its buildings, grounds, and property in the state. See § 945.025, Fla. Stat. In carrying out this statutory responsibility, DOC provides access to inmate telephone services. DOC believes that inmate contact with their family and friends reduces recidivism by encouraging family connections and prepares inmates for their eventual release back into society. DOC records all non-privileged calls in order to prevent and detect the coordination of violent and/or illegal activity over the telephone. Inmates may contact their family and friends by using a prepaid card or calling collect. The current rates for prepaid inmate calls are $0.04 per minute for local calls and $0.14 per minute for intra-Local Access Transport Area (LATA), inter-LATA and long distance calls. Under the current system, there is no deposit or funding fee for each call. The majority of inmates are not incarcerated in their home community, thus approximately 75 percent of current inmate calls fall into the $0.14 per minute categories. Inmate calls are limited to 15 minutes per call, however if there is no one waiting to use the telephone, the inmate may call again. A 15-minute local call currently costs $0.60 cents. A 15-minute intra-LATA, inter-LATA or long distance call currently costs $2.10. Securus, through its wholly owned subsidiary T-Netix Telecommunications Services, Inc., currently holds the contract to provide DOC inmate telephone service. DOC does not provide or pay for inmate telephone services, but is authorized pursuant to section 945.215(1)(b), Florida Statutes, to contract with telephone-service providers who install and maintain all the necessary telephone equipment for this service. On July 25, 2016, Ms. Faulk8/ (DOC’s bureau chief of procurement and lead negotiator) proposed a “justification memo” (memo) to DOC’s chief of staff for the use of an ITN “for the purpose of competitively procuring Statewide Inmate Telecommunication Services.” The stated purpose of the ITN was: to solicit replies from fully capable and qualified respondents, and to ultimately establish a Contract, based on the “Best Value”, for quality tele-communication services for inmates under” DOC’s care and custody. The memo suggested that the ITN process provided flexibility that would help DOC in “determining the service and programming options available and the opportunity to understand the implications of those services and proposed rates.” Further, the use of an ITN would allow DOC: to discuss in detail, each respondent’s technical capabilities, professional experience, and capability to provide quality services in relation to the rates charged to inmate friends and family members. The negotiation phase . . . will provide a venue for discussion of value-added services, and will ensure the most qualified vendor is selected. Section 287.012(17), Florida Statutes, defines “Invitation to negotiate” as: written or electronically posted solicitation for competitive sealed replies to select one or more vendors with which to commence negotiations for the procurement of commodities or contractual services. Section 287.057(1)(c) further explains an ITN as a type of procurement method which allows an agency to “determine the best method for achieving a specific goal or solving a particular problem” and to identify “one or more responsive vendors with which the agency may negotiate in order to receive the best value.” On November 2, 2016, DOC released the ITN, seeking competitive replies from qualified vendors to provide telecommunications services for inmates at all DOC institutions, and its associated satellite facilities. The ITN specifically sought a no-cost contract, meaning DOC would not expend any State funds for the services procured. Instead, the winning vendor would charge an inmates’ family or friends on a per-minute basis for an inmate to place each telephone call. The original ITN timeline provided that the anticipated posting of the intent to award the contract was in April 2017. However, that original timeline was changed on December 22, 2016, and revised another 16 times before the intent to award was actually published. Revisions or changes (excluding solely timeline revisions) to the actual requirements of the ITN were found in the following addenda9/: 1, 3, 5, 6, and 8. The ITN’s “Statement of Purpose” found in section 2.2 provides: The Department is seeking responses, from interested and qualified Vendors, for the provision of telecommunication services for inmates at all its institutions, and associated satellite facilities, listed in Attachment II. Vendors must have at least three years, out of the last five years, of business/corporate experience, specifically providing telecommunication services through multiple sites in a correctional or other security/law enforcement setting, as described in this ITN. Specifically, the Department is seeking replies for telecommunication services for all its facilities. The Department intends to award the resultant Contract to a single Vendor, Statewide. The ITN’s “Procurement Overview” found in section 2.3 provides: The Department is requesting competitive, sealed replies, from responsible Vendors, in order to establish a multi-year Contract for the provision of telecommunication services to inmates in the Department’s care. The Department is interested in considering value- added services that would be beneficial to, or will otherwise complement, the services required by this ITN. The process for evaluating and selecting a Vendor will consist of two phases. The first phase involves evaluation of the replies to the ITN, which will result in the selection of Vendors to proceed to the negotiation phase. In the second phase, Vendors will be asked to provide a presentation of their Reply. This phase also includes negotiation of a final statement of work, pricing, and terms and conditions of the final Contract. The negotiation phase culminates in one or more of the Vendors receiving a request, from the Department, to submit a best and final offer (BAFO), which must include: (1) a revised statement of work; (2) a final Contract draft; and (3) a final cost and compensation model. (Emphasis added). The ITN’s goals and specific goals are found in sections and 2.4.1, which provide: FDC Goals The Department is looking to not only continue providing quality telephone services for inmates in our care, at the minimum, levels of service required by law and rule, but also to achieve strategic improvements in the area of tele-communication services. Overall goals for the Department include: Reduce recidivism through increased family re-unification and re-entry efforts. Ensure the safety and security of staff, inmates, and the public through the use of modern technology. Control inmate telephone usage and limiting the use of the telephone service for fraudulent activity. Ensure a quality telephone service with reasonable and justifiable telephone call rate charges for inmate’s families and friends similar to those available to the public at large. The intent of this procurement is to contract with a Vendor who will assist the Department in meeting these goals. Specific Goals of this ITN: Establish a flexible contract, with transparency of service costs and better alignment of costs with services. Establish a contract that allows the Vendor to bring market expertise and an ability to shape strategy, to lower the cost of telecommunication services for inmates friends and family, and maximize the benefits to the Department. Ensure a smooth transition/continuation of services from the current Contract to a new Contract without disruption. Award to a Vendor that applies technical and operational expertise to ensure a smooth continuation of services with minimal risk. Ensure pricing that is cost effective through entire term of the Contract. Establish a collaborative relationship, with the prospective Vendor, which will maximize the extent to which the Department can achieve the objectives of this ITN. (Emphasis added). DOC mandated an initial five-year contract, with an option for DOC to renew the contract up to five more years or any portion thereof. The additional five-year renewal period was “contingent, at a minimum, upon satisfactory performance by the Vendor, as determined by the Department, and will be subject to the availability of funds.”10/ The ITN’s pricing methodology found at 2.7 provided: The Department is seeking pricing that will provide the most favorable terms the Vendor can offer in terms of lowest phone rates to the State[11]; therefor, interested Vendors must submit a Cost Reply, utilizing the Price Information Sheet, Attachment III. Best and Final Offers from Vendors will be solicited to establish the lowest possible telephone rates and most beneficial value added services. Vendors are encouraged to submit a Cost Reply in such a manner as to offer the most cost effective, and innovative solution for services and resources, as cost efficiency for the State will be a consideration in determining best value. Vendors must provide the Cost Reply in accordance with the instructions in Section 4.8. (Emphasis added). The definition for value added service (VAS) is found in the ITN at section 1.29 as: Advanced and/or additional services provided to the Department that include new and innovative technologies relating to the telecommunication services sought, and at no additional cost to the Department. There is no definition for telecommunication services found in the ITN. DOC included a list of VASs in section 3.2 of the ITN. That list included in pertinent part: As part of this revenue generating Contract, the Department is interested in obtaining value-added services in lieu of commissions. The Department requests that Vendors provide with their Reply, a detailed description of all value-added services the Vendor is offering to the Department. These services would be in addition to those services that meet the minimum service requirements and specifications of this ITN. At no cost to the Department, for the duration of the Contract term and any subsequent renewals, the Department is especially interested in the following value-added services; however, Vendors are encouraged to provide additional or alternate value-added services. Handheld Cell Phone Detection Units (CEIA or equivalent). A fully functioning Cell Phone Forensic Laboratory with the following: * * * Access to ICER (Inmate Inter- Communications Evaluation and Reporting) national database for identifying and reporting inmate-to-inmate communications. Word spotting services through the Vendors proposed inmate telephone system. Voice Biometric Analysis through the Vendors proposed inmate telephone system. Vendor-provided call monitoring. A Managed Access System (MAS), in an effort to control and eliminate wireless communications within our institutions. Vendors are encouraged to include a single facility, multi-facility or statewide solution that will prevent unwanted or unauthorized access to commercial wireless networks while simultaneously enabling legitimate, mission- critical, or emergency connections. Any Managed Access Solution being proposed by the Vendor shall be inclusive of all equipment, installation, infrastructure and network, training, operation, and ongoing repairs and maintenance. Change number 3 found in the ITN’s Addendum 5, posted on February 23, 2017, provided revisions to section 3.2, the VASs section. The changes are shown via strike-through for the deleted language, and underscored for the new language: As part of this revenue generating Contract, the Department is interested in obtaining value-added services in lieu of commissions. The Department requests that Vendors provide with their Reply, a detailed description of all value-added services the Vendor is offering to the Department. These services would be in addition to those services that meet the minimum service requirements and specifications of this ITN; at no cost to the Department, for the duration of the Contract term and any subsequent renewals, The Department is especially interested in the following value-added services; however, reviewing Vendor proposed value-added services or technology to aid in the prevention and detection of cellular devices, peripheral hardware and hazardous contraband at entry points and within the secure perimeter of our correctional institutions. Vendors are encouraged to provide additional or alternate value-added services, beyond what is included in this Section. While value-added services are considered in the evaluation (see Section 4.9 of this ITN), Vendors are not required to propose a particular value-added service or group of services to be considered. Change number 4 found in the ITN’s Addendum 5, posted on February 23, 2017, provided revisions to section 3.2.7. The changes are shown via strike-through for the deleted language, and underscored for the new language: A Managed Access System (MAS), in an effort to control and eliminate wireless communications within our institutions. Vendors are encouraged to include a single facility, multi-facility or statewide solution that will prevent unwanted or unauthorized access to commercial wireless networks while simultaneously enabling legitimate, mission- critical, or emergency connections. Any Managed Access Solution being proposed by the Vendor shall be inclusive of all equipment, installation, infrastructure and network, training, operation, and ongoing repairs and maintenance. Vendors are not required to provide a MAS as part of their solution; however, if a Vendor chooses to include a MAS in their Reply, the Department is interested in the MAS meeting the below minimum requirements: Locations * * * 3.2.7.2. Implementation * * * 3.2.7.3 System Requirements * * * 3.2.7.4 Vendor Responsibilities * * * 3.2.7.5 Department Responsibilities * * * 3.2.7.6 System Maintenance * * * 3.2.7.7 Reporting * * * 3.2.7.8 Support The ITN process to select qualified vendors consisted of two distinct parts: Part 1 and Part 2. Part 1 required vendors to submit a “straightforward, concise delineation of the Vendor’s capabilities to satisfy the requirements” of the ITN. Eight specific components were described, and the evaluation criteria were provided. However, the actual components need not be reviewed here, as section 4.9.C provided the “score from the Evaluation Phase will not carry over into negotiations and the Negotiation Team will not be bound by those scores.” CenturyLink, GTL, and Securus are providers of telecommunications services for inmates, and each timely submitted the “Technical Reply and Cost Replies” for Part 1 of the ITN. It is well settled and uncontested that Securus scored the highest in Part 1, followed by GTL and CenturyLink. Part 2 allowed DOC to select one or more qualified vendors for the negotiation phase. DOC invited all three vendors to negotiate. The negotiation team (Team) included three DOC employees: Ms. Faulk, Mr. Kirkland12/ (DOC’s deputy director of Institutional Operations), and Mr. Harrell13/ (DOC’s bureau chief of Security Operations). Section 4.9 B. in the ITN set forth the following “Negotiation Phase Methodology”: The Department reserves the right to negotiate with any or all responsive and responsible Vendors, serially or concurrently, to determine the best solution. During the negotiation process the Department reserves the right to exercise the following rights. This list is not exhaustive. Schedule additional negotiating sessions with any or all responsive Vendors. Require any or all responsive Vendors to provide additional revised or final written Replies addressing specified topics. Require any or all responsive Vendors to provide a written Best and Final Offer (BAFO). Require any or all responsive Vendors to address services, prices, or conditions offered by any other Vendor. Pursue a contract with one or more responsive Vendors for the services encompassed by this solicitation, any addenda thereto, and any request for additional revised or final written Replies or request for best and final offers. Pursue the division of contracts between responsive Vendors by type of service or geographic area, or both. Arrive at an agreement with any responsive Vendor, finalize principal Contract terms with such Vendor and terminate negotiations with any or all other Vendors, regardless of the status of or scheduled negotiations with such other Vendors. Decline to conduct further negotiations with any Vendor. Reopen negotiations with any Vendor. Take any additional administrative steps deemed necessary in determining the final award, including additional fact-finding, evaluation, or negotiation where necessary and consistent with the terms of this solicitation. Review and rely on relevant information contained in the Replies received from Vendors. Review and rely on relevant portions of the evaluations conducted. Reject any and all Replies if the Department determines such action is in the best interest of the State. Negotiate concurrently or separately with competing Vendors. Accept portions of a competing Vendor’s Reply and merge such portions into one project, including contracting with the entities offering such portions. Waive minor irregularities in Replies. Utilize subject matter experts, subject matter advisors, and multi-agency advisors to assist the negotiation team. The ITN provided that DOC had “sole discretion in deciding whether and when to take any of” these actions. This methodology section included that the focus of the negotiations would be on “achieving the solution that” provided “the best value to the State based upon the ‘Selection Criteria’ and satisfies the Department’s primary goals as identified in the ITN.” Section 4.9 B. also included the Selection Criteria as: The Respondent’s articulation of its approach to provide the services. The innovativeness of Respondent’s approach to provide the services. Respondent’s articulation of its solution and the ability of the solution to meet the requirements of this ITN and provide additional innovations. Respondent’s demonstrated ability to effectively provide the services. Respondent’s experience in providing the services being procured and the skills of proposed staff relative to the proposed approach and offering. Respondent’s technical Reply and Cost Replies as they relate to satisfying the primary goals of the telecommunication services identified herein. Change number 2 found in the ITN’s Addendum 8 posted on June 13, 2017, provided revisions to section 4.8.A (2), the description of offering section. The changes provided the number of points allocated for each section in the Part 1 evaluation phase. However, paragraph “4.8.A.2.(c)” provided a further break- down of the overall points allocated to the “Vendor’s proposed value-added services” and provided important information for the negotiation phase. The pertinent changes are shown via underscore for the new language: c) To what extent do the Vendor’s proposed value-added services maximize the benefits to the Department? (Worth 21 weighted points, allocated below) Cell phone detection equipment and phone system surveillance services, including those listed in Sections 3.2.1, 3.2.4, and 3.2.5. (4 points) Cell phone forensics and intelligence, including those listed in Sections 3.2.2 and 3.2.3. (4 points) Managed Access Systems described in Section 3.2.7. (4 points) Vendor-provided phone call monitoring services referenced in Section 3.2.6. (4 points) Any other Vendor proposed value-added services or technology to aid in the prevention and detection of cellular devices, peripheral hardware and hazardous contraband at entry points and within the secure perimeter of our correctional institutions. (5 points) In the negotiation phase of this procurement, the Department reserves the right to negotiate for these or other value-added services identified through the negotiation process. Further, the Department is not bound to the point allocation or prioritization included in this section when determining the best value to the Department. Securus did not file a protest when Addendum 8 was posted. In the later part of November 2017, roughly a year after posting the ITN, DOC’s Team began conducting negotiation meetings with each vendor separately. Over the course of the next several months, the Team held a total of 20 negotiation sessions: 6 sessions with CenturyLink; and 7 sessions each with GTL and Securus. In addition, the Team held 24 strategy sessions where they discussed potential negotiation strategies, the vendors’ offerings, and options for achieving the best value to the State. DOC used a negotiating strategy that “flipped” Securus’ negotiating strategy. Instead of starting the negotiations with the low cost telephone rate charges and securing the VASs through the money collected in that manner, DOC elected to use a higher telephone rate charge to seek more VASs. Ms. Faulk explained this tactic as similar to how a car company operates. Instead of starting with a base price and adding specific features one at a time, a car company bundles added features, and a consumer has to take the bundle just to get the individual features they want. In Securus’ first negotiation meeting with DOC, Ms. Faulk informed Securus that DOC was: fairly comfortable with the base phone system . . . they are fairly solid system platforms. So the main focus will be on the value added services, as I’m sure you all expected it to be. Ms. Faulk made clear that the negotiations “as a whole are intended to be a two-way street.” Although Ms. Faulk advised Securus that DOC would not be “dictating” what was in Securus’ best and final offer (BAFO) to DOC, DOC was providing Securus “an opportunity to understand what’s important to” DOC. During the negotiation meetings, Ms. Faulk also stated that DOC was looking for: the solutions that we [DOC] can deploy and hit the biggest, the most number of institutions and kind of spread our buck or your [vendor’s] buck essentially the furthest that we can. Because, you know, we have funding struggles like any other public entity. And so, we want to utilize [the ITN process] in the best way we can. Ms. Faulk provided that DOC was trying to find a “sweet spot,” a call rate that was “reasonable” for inmates’ family and friends that also provided the VAS that DOC wanted. The ITN was a “revenue-generating contract” for the vendor to provide DOC with VASs “in lieu of commissions.” See ITN, section 3.2 Value-Added Services. However that changed during the negotiation phase. During the third or fourth negotiating session, “a change to the terms laid out in the ITN” was provided. DOC coveted a $5 million commission paid on a yearly basis. Ms. Faulk testified that the reasons for this change dealt with the need to fill a revenue gap created when a different DOC contract expired. According to Ms. Faulk, DOC “wanted to ensure that we [DOC] did not reduce our [DOC] contribution to the general revenue.” All proceeds from telephone commissions are deposited into the State’s General Revenue Fund. See § 945.215(1)(b), Fla. Stat. Ms. Faulk further testified that the ITN was structured to allow for negotiation, and DOC was, at that point, “negotiating terms and conditions.” DOC reviewed available telephone industry pricing for other state correctional departments (including Florida’s current provider) and found rates vary from a low of $0.04 (DOC) for local per minute calls to $0.13 (Georgia Department of Corrections, GDOC) for local per minute calls; and from a low of $0.06 (Texas Department of Corrections, TDOC) for an interstate per minute call to $0.25 (California Department of Corrections, CDOC) for an interstate per minute call. The other states also included a funding fee or account set up fee ranging from CDOC’s $3.00 (for a one-time set up fee) and $0.99 for each “Advanced Pay One Call,” up to TDOC’s $5.95 to fund prepaid accounts, plus $2.00 per collect call. No direct comparison can be made from these other states as there are too many variables in play. The Federal Communications Commission (FCC) recently conducted a study that determined a “reasonable rate” to charge inmates for telephone usage was $0.21 per minute. During the negotiation stage, Securus suggested to DOC that it provide a specific fixed per-minute rate, as well as include a deposit fee, in an effort to level the playing field for all competing vendors. Further, Securus explored the multiple VASs options that DOC discussed during the negotiation sessions. On April 23, 2018, following completion of the multiple negotiation sessions with all the vendors, DOC issued a Request for Best and Final Offers (RBAFO) pursuant to section 4.9 of the ITN. The RBAFO directions had a specific reference to VASs. It provided: Value-added Services to include any additional ideas for improvement or cost reduction, additional commodities or additional services, which the Vendor will provide to the Department at no additional cost(s). These should be thoroughly detailed including an exact quantity, proposed implementation schedule, and maintenance, as applicable. The RBAFO also provided specific directions on the format for the BAFO response and required that detailed information be provided on a revised price information sheet (RPIS). The RPIS included: The Vendor shall provide their proposed monthly commission rates per the stated per minute rate and deposit fee. Value-added services should be included on a separate sheet, along with any price assumptions. Please note, these rates are the only fees to be charged to inmate friends and family and shall include any surcharges and connection fees. The RPIS also required the initial term and renewal term be stated. The RPIS also supplied: the per minute telephone rate for all calls at $0.135; the deposit fee of $0.9914/; and a monthly commission rate of “$ .” The RPIS then again instructed that “The Vendor should include all Value-added Services on a separate sheet.” The form also contained the appropriate lines for the date, Federal Identification Number, the vendor’s name, the vendor’s printed authorized representative’s name and his/her signature. On May 30, 2018, Securus, GTL, and CenturyLink submitted their BAFOs. GTL and CenturyLink each submitted one BAFO, while Securus initially submitted four BAFOs. The Team requested clarification from the vendors, and additional responses were submitted on June 25, 2018. GTL and CenturyLink each revised or submitted one BAFO, while Securus submitted an additional three BAFOs. Securus provided multiple scenarios as to how it could best accomplish DOC’s goals, using different telephone rates. GTL’s BAFO provided the required call rate, deposit fee, monthly commission, and VAS within the five-year initial contract period. Option 5 of Securus’ BAFOs, which was closest to the GTL BAFO, provided the required call rate, deposit fee, monthly commission, and VAS, but delivery was over a 10-year period as opposed to the five-year initial contract. The Team held a final meeting on November 21, 2018, to discuss the various BAFO proposals. Ultimately, the Team recommended GTL for the contract award. The Team’s recommendation memorandum provided the Team “felt that both Securus and GTL offered similar core inmate telecommunication services to inmates and the Department with a robust management system.” The difference, and the basis for the Team’s recommendation to award the contract to GTL, was grounded on GTL’s “offered commission rates and value-added services that would be implemented throughout the course of a five (5)-year initial contract term” as opposed to Securus’ proposal “over a 10-year initial contract term.” The remaining six options by Securus, offered the “five (5)-year contract term, [but] provided lower commission rates and less value-added services” to DOC. On December 11, 2018, DOC posted its Notice of Intent to Award the contract to GTL. Securus timely protested DOC’s selection of GTL. Securus’ protest focused on what it perceived to be VASs that were not related to inmate telecommunications services, specifically: hand-held walkie-talkies; a biometric entry/exit system for inmates, staff and visitors; and a radio frequency identification system (RFID). Securus failed to appreciate DOC’s stated goal: “Ensure the safety and security of staff, inmates and the public through the use of modern technology.” Each of these VASs falls within that goal. DOC maintained its goal of “reasonable and justifiable telephone call rates.” DOC failed to maintain its specific goal for establishing a contract that lowered, not raised, the cost of telecommunication services for inmates’ friends and family, but held fast to maximizing the benefits to DOC. Although contrary to the goal, DOC placed all vendors on notice of its intention to seek the desired VASs in relation to the telecommunication services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a final order dismissing the protest by Securus. It is further recommended that the Department of Corrections award the contract under Invitation to Negotiate, ITN-17-122, to GTL. DONE AND ENTERED this 25th day of March, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 25th day of March, 2019.
The Issue Whether Petitioner was discriminated against by the Department of Corrections based on race, religion, disability, age, or in retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Emory Mosley, is an African-American male (Petitioner). In 1989, Petitioner was hired as a correctional officer by Respondent, the Department of Corrections (Department). Initially, he was assigned to the main unit at Madison Correctional Institution in Madison, Florida. By all accounts, during his first nine years with the Department, Petitioner was well liked by the institution's administration and his fellow officers. He was thought of as a hardworking professional officer and as one of the best officers at Madison Correctional Institution. New officers were routinely sent to Petitioner for him to train. In general and during Petitioner's employment, officers are assigned to different shifts and work assignments at Madison Correctional Institution so that officers can become familiar with all aspects of the Madison Correctional system. However, Petitioner was allowed to remain at the same post and shift for his first nine years. Over nine years, such permanence in Petitioner's assignment caused some resentment among other staff because of the perceived favoritism exhibited by the administration toward Petitioner. At some point in his ninth year with the Department, Petitioner began to perceive problems with other staff members. He concluded that certain rules were not being followed and began to believe that co-workers were in some manner conspiring against him, abusing inmates, and/or committing crimes related to their duties at the institution. His relationships with co-workers became strained. Staff and inmates began to complain about Petitioner's behavior toward them. During this time, Petitioner also complained to the warden about rule violations by staff. However, the details of these complaints were not revealed at the hearing. Petitioner's complaints did appear to be in the nature of "whistle-blowing." The evidence did not demonstrate that any of Petitioner's complaints involved any activity protected under Chapter 760, Florida Statutes. In July 1999, Colonel David McCallum transferred Petitioner to the Madison Correctional Institution work camp. The work camp was located a few hundred yards away from the main unit. The duties of a correctional officer at the work camp are primarily the same as those at the main unit with the difference that there are significantly fewer inmates at the work camp. As a result, many officers feel that the work camp is somewhat more relaxed and an "easier" assignment than an assignment at the main unit. To some officers, it is a desirable assignment. To other officers, it is not a desirable assignment. Opportunities for promotion are not diminished at the work camp; pay and benefits remain the same. The evidence did not show that transfer to the work camp was an adverse employment action on the part of the Department. Colonel McCallum, who thinks highly of Petitioner, transferred Petitioner to the work camp because he believed that Petitioner needed a change of scenery because of the problems he was having with staff and inmates at the main unit. He believed that he was doing Petitioner a favor by transferring him because of the more relaxed atmosphere at the work camp. The transfer was also made due to complaints from staff that Petitioner was receiving preferential treatment in that he was allowed to maintain the same post and shift for such a long period of time. Colonel McCallum was not aware of any complaints by Petitioner to the warden of alleged rule violations at the time that Petitioner was transferred. The evidence did not show that Petitioner was transferred in retaliation for any activity protected under Chapter 760, Florida Statutes. Petitioner's supervisor at the work camp was Lieutenant Patricia Herring, an African-American female. Herring emphatically denied at the hearing that the work camp was in any manner run as a type of concentration camp as opined by Petitioner and did not relate any race relation problems at the camp. The camp was run in a less strict manner than the main unit, especially in relation to the procedure used during the counting of inmates. These more relaxed methods greatly disturbed Petitioner, and he constantly agitated the work environment about such relaxed methods that he perceived as "rule violations." Herring testified that Petitioner was insubordinate and disrespectful to her during his time at the work camp. She believed that his disrespect came from his unhappiness with having a female supervisor. Petitioner received a written reprimand as a result of his insubordination and disrespect toward Herring. Unquestionably, Petitioner and Herring had a serious conflict between their personalities. There was no evidence that any conflict was based on discrimination or retaliation. Ms. Herring also testified that Petitioner received the same treatment as all other officers, vis-à-vis, shift and post assignments. There was no substantive evidence that Petitioner was treated differently in the assignments he was given at the work camp. There was no evidence that Petitioner sought accommodation for his diabetes or high blood pressure. Petitioner retired from the Department, effective December 1, 1999. He admitted at hearing that his retirement date had nothing to do with any actions allegedly taken against him by the Department; rather, he planned to retire on December 1, 1999, well before any problems with the Department began because that date ensured that he would receive retirement benefits based on ten years of service. There was no substantive evidence presented at the hearing that Petitioner was discriminated or retaliated against. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of June, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Emory L. Mosley Post Office Box 8 Monticello, Florida 32345 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
