The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
The Issue The issue for determination in this case is whether Petitioner is entitled to a Captive Wildlife Game Farm License from the Florida Fish and Wildlife Conservation Commission (“FWC”).
Findings Of Fact The Parties Petitioner, Carla SantAngelo, is a natural person who resides at 5260 Bluff Hammock Road, Lorida, Highlands County, Florida. FWC was created pursuant to Article IV, section 9 of the Florida Constitution, to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” FWC has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. The Application Petitioner’s application lists the location of the proposed game farm as 5260 Bluff Hammock Road, Lorida, which is also her residential address. Petitioner proposed to rear, possess, exhibit, and sell fallow deer, sika deer, axis deer and blackbuck antelope, all of which are designated by the FWC as Class II Wildlife. Florida Administrative Code Rule 68A-6.0022(5) establishes the criteria for obtaining a permit to possess Class II wildlife. It provides in pertinent part: Age Requirement: Applicants to possess Class I or Class II wildlife shall be at least 18 years of age. Applicants shall not have been convicted of any violation of captive wildlife regulations or venomous reptile or reptile of concern regulations involving unsafe housing of wildlife or that could potentially endanger the public; any violation involving the illegal commercialization of wildlife; any violation involving cruelty to animals; or any violation involving importation of wildlife within three (3) years of the date of application. * * * (d) Experience and examination requirements for Class II permits: 1. Applicants may qualify for a permit for Class II wildlife by documenting one year of experience (to consist of no less than 1000 hours) as defined in subparagraphs 68A- 6.0022(5)(c)1.-4., F.A.C. It was stipulated by the parties that Petitioner satisfied the requirements in rule 68A-6.0022(5). In its letter of denial, the reason given by FWC for denying Petitioner’s application was “FWC has reason to believe you were operating the illegal game farm with your husband.” Petitioner’s husband, Daniel SantAngelo, is the president of Okeechobee Outfitters. He was charged and convicted of operating a game farm at 5260 Bluff Hammock Road without a license. The date of his conviction is not in the record, but is likely sometime in 2015. Okeechobee Outfitters was not charged or convicted of operating a game farm without a license. Petitioner was formerly the vice president, director, secretary, and treasurer of Okeechobee Outfitters. Her corporate functions included disbursing checks on behalf of the corporation, acting as secretary, cooking, answering phone calls, answering e-mails, cleaning, paying electric bills, and booking hunts. FWC asserted that Petitioner’s position and activities with the corporation were tantamount to her personal possession of Class II wildlife without a permit. Daniel SantAngelo owns the property located at 5260 Bluff Hammock Road. Okeechobee Outfitters owns property at 5229 Bluff Hammock Road, Highlands County, Florida, and a site located at Brighton Seminole Indian Reservation, Okeechobee County, Florida. Petitioner has no ownership interest in any property owned by Okeechobee Outfitters. Petitioner is not a shareholder of Okeechobee Outfitters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Fish and Wildlife Conservation Commission issue the Captive Wildlife Game Farm License to Petitioner. DONE AND ENTERED this 30th day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 30th day of June, 2016. COPIES FURNISHED: Raymond M. Masciarella II, Esquire Raymond Masciarella II, P.A. Summit Building, Suite 340 840 U.S. Highway 1 North Palm Beach, Florida 33408 (eServed) Tracey Scott Hartman, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eugene Nichols “Nick” Wiley II, Executive Director 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)
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-145 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of » 2011. By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Catherine D. Reischmann, Esq. Debra S. Babb-Nutcher, Esq. Gregg A. Johnson, Esq. Brown, Garganese, Weiss & D’agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, Florida 32802 creischmann@orlandolaw.net dbabb@orlandolaw.net gjohnson@orlandolaw.net Reginald L. Bouthillier, Jr., Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7742 bouthillierr@gtlaw.com \ Paula Ford tga Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 twreeseesq@aol.com Marcia Parker Tjoflat, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 mpt@papmet.com M. Lynn Pappas, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 Ipappas@papmet.com Linda Loomis Shelley, Esq. Fowler White Boggs & Banker, PA. P.O. Box 11240 Tallahassee, Florida 32302 Ishelley@fowlerwhite.com Lynette Nort, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us FINAL ORDER NO. DCA 11-GM-145
The Issue The issue to determine in this matter is whether Petitioner James Jablon’s applications for a Personal Pet No Cost Permit (PPNC) and Class III Exhibition and/or Sale License (ESC) should be denied for the reason stated in Respondent Florida Fish and Wildlife Conservation Commission’s (FWC) Notice of Denial, dated May 24, 2019.
Findings Of Fact Mr. Jablon testified that he previously owned a male lion named Ed, and possessed the appropriate Class I Wildlife License. Ed then went to live at another wildlife facility near Gainesville. Mr. Jablon testified that in July 2015, Judith Watson, who owned a wildlife sanctuary near Spring Hill, Florida, contacted him and asked him to live in a guest house at her wildlife sanctuary and inquired whether he could relocate Ed to her wildlife sanctuary. Mr. Jablon stated that Ms. Watson had a female lion named Savannah, and it was his opinion that lions should live in a “group system” and not alone. Mr. Jablon testified that he then took steps to reacquire Ed from the Gainesville facility. On October 19, 2015, Mr. Jablon applied for a Class I and/or Class II Wildlife for Exhibition or Public Sale (ESA), in the name of Wildlife Rehabilitation of Hernando, in which he sought a license to possess, inter alia, a lion. The State of Florida classifies lions (panthera leo) as Class I wildlife. See Fla. Admin. Code R. 68A-6.002(1)(a)12. Among the numerous requirements for an ESA are requirements for the facilities for the housing of Class I wildlife, “[i]n order to assure public safety.” Fla. Admin. Code 68A-6.003(2). For example, Florida Administrative Code Rule 68A-6.003(2)(c)1. requires: Property ownership/lease: The facility shall be constructed on property owned or leased by the applicant. If leased[,] the lease shall be for a term of not less than one (1) year from date of application. Such lease shall be subject to initial and annual review and approval by the commission as a condition of said lease. If the property is leased, the lessee must have exclusive rights to occupy, possess and use the property with no restrictions that could prevent the lessee from adhering to the eligibility requirements for licensure with no other in holdings or easements. The existence of any such lease restrictions or termination of the lease shall result in the denial or revocation of the license or permit. As part of his ESA application materials, Mr. Jablon provided a “Residential Lease Agreement,” dated July 31, 2015, between Ms. Watson and “James Jablon/WROH,” that generally stated that Ms. Watson agreed to rent to Mr. Jablon (and Wildlife Rehabilitation of Hernando) real property in Spring Hill, Florida, for a term of almost three months. The Residential Lease Agreement contains the signatures of Mr. Jablon, and purportedly, Ms. Watson. Thereafter, Mr. Jablon submitted to FWC a “License renewal correction update,” dated November 16, 2015, in which he provided a “correction” to the lease term to show that it was for three years, and not almost three months. This “correction” contains the initials of Mr. Jablon, and purportedly, Ms. Watson. At the final hearing, Mr. Jablon admitted that the signatures of Ms. Watson on the Residential Lease Agreement and the initials on the “License renewal correction update” were not those of Ms. Watson, but his. Mr. Jablon testified that he signed Ms. Watson’s signature and initials to these documents with Ms. Watson’s permission. Mr. Jablon further testified: We weren’t really concerned about the legality of the lease, because neither one of us had any intention of enforcing the lease. I wasn’t technically a tenant there leasing the property. I was over there to help her run that facility and work with her. So if you look at the lease, there’s really nothing—it’s basically the way it came in the package. . . . So, I mean, we didn’t—we didn’t care about the lease. Ms. Watson testified that she never asked Mr. Jablon to create a lease for the Spring Hill property, never gave him permission to sign her name on a lease, and never gave him permission to sign a “License renewal correction update.” Ms. Watson, who testified that she was familiar with the requirements for an ESA for Class I wildlife, also testified, consistently with Mr. Jablon, that the two had discussed moving Ed to her property to live with Savannah. The undersigned does not find Ms. Watson’s testimony credible concerning the creation of a lease for the Spring Hill property. As an owner of a lion, who testified that she was familiar with the requirements for an ESA for Class I wildlife, Ms. Watson knew of rule 68A-6.003(2)(c)1.’s requirement that an ESA permittee must own or lease the property upon which the wildlife would reside. By asking Mr. Jablon to move Ed to her property to live with Savannah, the undersigned finds that Ms. Watson would have known of this requirement that Mr. Jablon either own or lease the property where Ed would live. As Mr. Jablon did not own Ms. Watson’s Spring Hill property, the undersigned finds that Ms. Watson would have known that Mr. Jablon would need to lease the Spring Hill property to legally possess an ESA and locate Ed on the Spring Hill property. However, the undersigned also finds, based on his own testimony, that Mr. Jablon falsified Ms. Watson’s signature on the lease, as well as her initials on the “License renewal correction update,” which he submitted to FWC as part of his ESA application. His explanation for doing so--that neither he nor Ms. Watson intended to enforce the lease and renewal documents-- further indicates to the undersigned that Mr. Jablon intended to submit materially false documents to FWC in the ESA application process. On February 19, 2019, FWC received Mr. Jablon’s application for a PPNC and ESC. In its May 24, 2019, Notice of Denial, FWC stated: On May 12, 2016, Ms. Watson provided a sworn statement to Investigator Chad Paul stating that the lease [submitted with the October 19, 2015, application for ESA] was a falsification. In comparing signatures from Ms. Watson over the years to the lease you submitted, FWC confirmed the signature did not belong to Ms. Watson. The Notice of Denial further states, “[b]ased on your prior submission of materially false information, your applications [for a PPNC and ESC] have been denied.” The undersigned finds that competent, substantial evidence supports FWC’s determination that Mr. Jablon submitted materially false information when he applied for an ESA in 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Fish and Wildlife Conservation Commission issue a final order denying Mr. Jablon’s PPNC and ESC applications. DONE AND ENTERED this 27th day of September, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2019. COPIES FURNISHED: James Jablon 15297 Highfield Road Brooksville, Florida 34604 Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issue in this proceeding concerns whether Leonard Mattox, the Petitioner, or his business, Sasquatch Park, is qualified under the provisions of Rule 39-6.0022(5)(c)1, Florida Administrative Code, to engage in the husbandry of a cougar (felis concolor), in terms of the experience requirement of that rule.
Findings Of Fact The Petitioner, Leonard M. Mattox, doing business as Sasquatch Park, operates a captive wildlife facility, open to the public, in Okaloosa County, Florida, near the City of Crestview. The facility is open to the public between the hours of 9:30 a.m. and 4:00 p.m., and the Petitioner holds a Class II permit authorizing possession of macaques, a primate. Class II wildlife species are animals which have the potential of posing some degree of danger to human beings. The permits for possession of such animals are issued by the Commission. The Petitioner's Class II permit authorizing the possession of a macaque was issued on August 19, 1988. On April 19, 1989, the Petitioner applied to the Commission to upgrade that permit to include cougars (felis concolor), also an animal on the Class II wildlife species list, delineated in Rule 39-6.002, Florida Administrative Code. Rule 39-6.0011, Florida Administrative Code, then required that an applicant for a Class II permit must possess three-years minimum experience in the husbandry of the species for which the permit was sought. Subsequent to that application, the Commission changed the experience requirement by enacting Rule 39- 6.0022(5)(c)1 on July 1, 1990. That provision defines experience requirement as being no less than one year of substantial, practical experience and consisting of not less than 1,000 hours in the care, feeding, and handling of the species for which the permit is sought. Petitioner concedes that he does not possess the required 12 months or 1,000 hours of experience. In fact, he testified that although he has extensive experience in the care and husbandry of numerous exotic wildlife species, including macaques, a Class II species, he has no formal experience in the husbandry of cougars. Rather, the Petitioner is relying on the experience of Mr. Bobby Spencer and Ms. Pauline Redding, both of whom have owned and possessed and cared for cougars for approximately five years. The cougar that the Petitioner seeks to own and exhibit in his zoo is "Micah", presently owned by Mr. Spencer. Mr. Spencer wishes to donate Micah to the Petitioner's zoo in order to give the cougar a safe, comfortable, appropriate home because he can longer keep the cougar. His grandson is allergic to the cougar's fur and exhibits a violent reaction to being in the proximity of the cougar. The Petitioner seeks to establish that his facility is appropriately qualified to maintain and care for the cougar within the requirements of the above rule by retaining both Mr. Spencer and Ms. Redding as "curators". It is undisputed that both of those individuals have more than the required experience in the husbandry of cougars. The Petitioner has proposed, with the agreement of both Mr. Spencer and Ms. Redding, that they will make routine, frequent and unannounced visits to the cougar's enclosure to ensure that the cougar is being appropriately cared for and that the public viewing the cougar will not be at risk. Both Mr. Spencer and Ms. Redding will be available on an "on-call" basis at any hour of the day or night, in addition to making routine unannounced visits to the enclosure. Both Mr. Spencer and Ms. Redding possess Class II permits from the Commission to possess cougars as personal pets. They keep their animals at Commission- approved facilities at their residences, although they do not exhibit them to the general public. Mr. Spencer resides approximately 27 miles from the Petitioner's facility, and Ms. Redding resides approximately five miles away and can be at the Petitioner's facility within approximately five minutes. Both are employed full-time, however. Mr. Spencer is a real estate salesman, and Ms. Redding is a full-time receptionist and veterinarian's assistant employed with a veterinarian in Ft. Walton Beach, some 27 miles from the Petitioner's facility, during normal working hours. In addition to being experienced in the husbandry of a cougar, Ms. Redding is experienced in the care of many types of animals in her duties as a veterinarian's assistant, which include functioning as an anesthesiologist. The testimony of Captain Jerry Thomas of the Game and Fresh Water Fish Commission established that the Commission's two primary concerns are the safety of the public and the humane treatment of the animal in situations where a permit is sought for the possession and exhibition of a Class II wildlife species, such as a cougar. There is no dispute that the Sasquatch Facility exceeds the Commission's requirements for housing, possessing and exhibiting the cougar. In fact, the enclosure built specifically for this cougar exceeds the more stringent provisions in the Commission's rules for housing African lions. The facility was designed to comport with the rule requirements for housing a breeding pair of African lions. There is a personnel "stand off fence" to protect the public so that no member of the public can approach the cage. The cougar's enclosure itself is an eight-foot high, nine-gauge, chain-link wire enclosure with nine-gauge chain-link wire covering the top of it to prevent the cougar from scaling his enclosure. There are also drop gates installed in the facility to manage a cougar and isolate him, as needed, from one side or other of his enclosure and to prevent involuntary release. In the extremely unlikely event of involuntary release of the cougar, there is an eight-foot perimeter fence around the zoo's facility. This particular cougar, who is substantially overweight, would likely be unable to scale it. If for some reason he was able to scale that enclosure, the rural, wooded character of the area of the Sasquatch facility, which is sparsely populated, would minimize the likelihood of any risk to humans before the zoo personnel could tranquilize the cougar, apprehend him, and return him to the facility. The Petitioner is equipped with the proper equipment and trained personnel, who are capable of tranquilizing the cougar and returning him to the facility. Tranquilizer guns with the appropriate chemical dosage, as prescribed by a veterinarian for an animal such as a cougar, are maintained in readiness at the facility at all times. Thus, the Commission's interest in the safety of the public is well-served by the facility and the personnel it maintains to possess, exhibit and care for animals such as cougars. Concerning the issue of the humane treatment of the animal, the facility is equipped with an automatic watering device and a staff veterinarian, Dr. Hill, whose office and residence is in nearby Crestview, is on call on a 24-hour basis. In addition to Mr. Mattox and his wife, who live on the premises and are present every day, the Sasquatch facility has two other full-time employees during each regular working day. Additionally, there are volunteers assisting almost daily. Mr. Mattox himself has a Class I wildlife possession license and previously has been approved for a Class II permit authorizing the possession and exhibition of macaques at the facility. Although the individual care requirements for the two animals are different, macaques are also Class II wildlife species considered to pose a potential threat to humans. There is no question that with the experienced personnel maintained by the Sasquatch facility, the advice and oversight of Mr. Spencer and Ms. Redding, both of whom have years of experience in the husbandry of cougars, the required feeding, medical attention, watering, and general care of the cougar will be well-accomplished. In carrying out the intent of the rule, as it perceives it, to insure the safety of the public and the humane treatment of the animal involved, the Commission has interpreted the experience provision of the subject rule to mean that where the applicant for the permit represents an entity or business, as is involved herein, which will house the animal in question, the applicant himself or herself need not possess the required experience, so long as personnel employed by the entity housing the animal will have the requisite experience provided for in the rule. Since Mr. Mattox himself does not have the requisite experience, it must be determined whether personnel he proposes to have care for the cougar will have adequate experience in cougar husbandry to ensure that the Commission's two concerns, public safety and humane treatment of the cougar, are appropriately served. In this connection, the Commission in its testimony at hearing through its agency representative, espoused the policy view or interpretation of the experience rule to the effect that persons with requisite experience should be on duty at the subject facility on a "full-time basis" or at least four hours per day. The language of the rule, however, does not provide that such personnel should be on duty on a full-time basis nor does it define what "full-time" means in any event. It does not provide a time-period standard delineating when experienced personnel should be on hand. Thus, starting from the premise that, as the Commission concedes, the applicant himself need not have the requisite experience, so long as personnel are available to a facility who do have the requisite experience, an examination must be made of the evidence and findings accordingly made concerning how much care on a typical day is required for a cougar kept in such a facility as Sasquatch Park, in order to satisfy the Commission's espoused concern regarding the animal's welfare. That examination will, in turn, demonstrate whether the Commission's espoused policy interpretation of the above rule experience requirement, in terms of a minimum of four hours per day presence by experienced personnel on the premises, is a reasonable interpretation and application of that rule, since the plain language of the rule itself does not require full-time presence of experienced personnel nor any other such time standard. The applicant has established an employment relationship with Mr. Spencer, the present owner of the cougar, whereby he will be the curator for the cougar when it is moved to Sasquatch Park. Mr. Spencer is licensed by the Commission to possess and own the cougar as a pet. He has been the owner and curator of this particular cougar for approximately five years. Mr. Spencer has agreed to provide his services on a 24-hour, on- call basis. For the first month or two, he would be present at the facility on almost a daily basis in order to make sure that the cougar becomes accustomed to his new owner and surroundings and does not become distressed at the absence of Mr. Spencer, to whom he has become emotionally attached. Mr. Spencer established, through his unrefuted testimony, that the actual time needed to be spent with the cougar is a maximum of 30 minutes per day, with an average of 15 minutes per day being appropriate. Any more time spent with the cougar, in direct contact, does not benefit the cougar; and it, indeed, might be detrimental to his emotional health. Mr. Spencer has agreed to be present at the facility on an almost daily basis in order to minister to the needs of the cougar for food, water, companionship, and to insure that Mr. Mattox becomes skilled at caring for the cougar. Mr. Spencer cares very much for the cougar and is keenly concerned in seeing that the cougar has a new home which is most beneficial to his welfare. He has investigated several possibilities and determined that Sasquatch Park is the best place for his cougar. As curator for the cougar, he wants the cougar close enough to his residence so that he can help care for him; and he has testified that he will continue to do so until he feels comfortable in gradually turning over the cougar's care to Mr. Mattox. There is no dispute that Mr. Spencer has more than ample experience to comply with the mandate of the above-referenced rule. Pauline Redding is also licensed to engage in the husbandry of a cougar as a personal pet. She is the owner and curator of the brother of the cougar in question. She houses her cougar in an enclosure in the yard of her home. She typically leaves home during the day to go to her job, and the cougar is left unattended for that entire period of time every working day. That arrangement comports with the requirements of the rule under which Ms. Redding is licensed to maintain the cougar as a personal pet. There is not a licensed person on the premises with her cougar "full-time" nor any other required time period. Ms. Redding, too, is well qualified and experienced in terms of the requirements of the rule, and in a practical sense, to adequately care for the cougar. She only lives five minutes away from the Sasquatch facility and is able and committed to assist Sasquatch at all times in insuring proper care for the cougar. Her employment experience also provides additional qualifications for her to engage in the husbandry of a cougar. She is employed as a veterinarian's assistant, technician and anesthesiologist. There is no dispute that both these persons are well qualified in terms of experience in directly caring for cougars to render them "qualified curators" of the cougar in question if he is placed at the Sasquatch Park facility. The testimony of Mr. Spencer, as well as that of Ms. Redding and to some extent that of Captain Thomas, establishes that cougars do not require the full-time presence of personnel experienced in their care or even four hours per day. In fact, the unrefuted testimony indicates that 15 to 30 minutes per day is adequate and that cougars only feed once or, at most, twice a day and get along very well if fed once per day, such as in the evening. Predators, such as cougars, typically feed, by nature, in the early morning or in the late afternoon and are lethargic during the warmer parts of the day. It is critical that an adequate supply of water be maintained at all times, and Sasquatch Park has an automatic watering device available for the cougar. Although its present personnel do not have direct experience in caring for cougars, they are well able to recognize when an animal is in need of medical attention and a veterinarian, Dr. Hill, is on 24-hour call, as the staff veterinarian for the facility. In summary, the unrefuted evidence establishes that cougars, such as Micah, do not need experienced personnel on the premises in their presence for even four hours per day or substantially less than that. It has been established that in order to meet the Commission's concern regarding the animal's welfare, experienced personnel need only be readily available on an on-call basis to insure that the cougar is properly cared for and that during the initial few days or weeks of the cougar's tenure at the Sasquatch Park facility, experienced personnel, such as Ms. Redding or Mr. Spencer, have daily contact with the cougar to insure that he is adequately cared for and that the facility, its owner and employees are being adequately trained in the care of the animal. In fact, it has been demonstrated that any additional contact with the cougar is not necessary to its welfare and, indeed, might be detrimental to it. Both Mr. Spencer and Ms. Redding have agreed to this arrangement, and it is practically capable of being fulfilled, especially with regard to Ms. Redding, because she only lives five minutes away from the facility and can visit the cougar and oversee its welfare on almost a daily basis. It has been demonstrated that, with the curatorship arrangements made by the applicant with Ms. Redding and Mr. Spencer, coupled with the applicant's own experience in maintaining and possessing many types of exotic and potentially dangerous animals, the Commission's interest in insuring the health and welfare of the cougar in question will be served by placing it at Sasquatch Park and that these arrangements most closely correlate with the evidence of record which establishes the manner and type of care a cougar needs on a daily basis when confined in such a facility. In this regard, somewhat parenthetically, it is noteworthy that the Commission's representative, in testifying in support of a four-hour-per-day standard for having experienced cougar husbandry personnel on the premises, also testified that that four hours per day for one year really equated to what was required, in his view, to train Mr. Mattox and establish him as the possessor of 1,000 hours minimum experience in cougar husbandry at the end of a year. Thus, that espoused "standard" actually is not really functionally related to the cougar's welfare or the interest of public safety. Finally, in assessing the Commission's stated concerns, it should be considered whether the cougar's present situation is preferable to that offered by Sasquatch Park. In Mr. Spencer's home, the cougar lives in a residence in the middle of a city, with many other people residing around it. Sasquatch, on the other hand, offers a rural, wooded setting which is sparsely populated, which equates to greater public safety in the unlikely event the cougar should escape. In Mr. Spencer's home, no one has been present for at least 9-1/2 hours per day, during the years he has kept the cougar. At Sasquatch, Mr. and Ms. Mattox live on the premises and are present with their employees everyday. Although Mr. Spencer and Ms. Redding were licensed under a different rule which concerns the keeping of Class II animals as personal pets, in assessing the level of care supposed to be provided the cougar, it is noteworthy that they obtained their licenses with absolutely no experience or training in the care of cougars. Mr. Mattox, on the other hand, has a Class I license; and the Commission has previously approved him for a Class II permit to keep a macaque, also an animal posing a potential threat to humans. Mr. Mattox has had years of experience in the husbandry of many exotic species. His practical qualifications, versus those of Mr. Spencer and Ms. Redding, are certainly substantial. Further, Sasquatch Park is a modern facility; and all cages and animal areas meet or exceed Commission requirements in terms of the animals' welfare and the safety of the viewing public. There is a staff veterinarian, who is on call on a 24- hour-a-day basis. With the arrangement with Ms. Redding, there will also be a curator available for the cougar, who has training in the veterinary care of animals, in addition to Dr. Hill. It has clearly been demonstrated that the Commission's interest in terms of public safety and the welfare of the animal in question will be well-served by placing the cougar at Sasquatch Park. It is, thus, found that the Commission's interpretation of the rule and the manner it seeks to apply that interpretation to the instant factual situation, established by the unrefuted evidence, is not reasonably related to the public safety or to the type, level and manner of care which is required for the cougar's well being, which two considerations are, as shown by the Commission's own witness, the primary intent of the subject experience rule. That being the case, the espoused interpretation by the Commission's witness of what is meant by the experience requirement in the rule is not reasonably related to the proven intent and purpose of the rule.
Recommendation Having considered the foregoing findings of fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is therefore RECOMMENDED: That a Final Order be entered by the Respondent granting the application of the Petitioner, Leonard M. Mattox, for a Class II wildlife permit authorizing the possession and display of cougars at his Sasquatch Park facility. DONE and ENTERED this 13th day of November, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1990. APPENDIX Petitioner's Proposed Findings of Fact The Petitioner filed no separately stated findings of fact but rather, filed a memorandum containing factual and legal argument inseparably intertwined. Thus, no separately stated discreet findings of fact are available to be specifically ruled upon, although the subject matter raised in each of the paragraphs of the Petitioner's memorandum have been dealt with and addressed in this recommended order. Respondent's Proposed Findings of Fact Accepted Accepted Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as immaterial, inasmuch as the subject rule was amended during the pendency of this proceeding. See Turro v. DHRS, et al., 458 So.2d 345 (Fla. 1st DA 1984). Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter and in fact immaterial in light of the Commission's own interpretation of the meaning of the experience requirement of the subject rule. Accepted, but the first sentence is immaterial. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted, but the first sentence is immaterial and the proposed finding of fact is subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted only insofar as it demonstrates what the agency's interpretation of the subject experience requirement in the rule consists of, but otherwise subordinate to the Hearing Officer's findings of fact on the subject matter. COPIES FURNISHED: Colonel Robert H. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James Antista, Esq. General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 John C. Harrison, Esquire 12 Old Ferry Road Shalimar, FL 32579 James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600
The Issue As a result of a request by Petitioner, Respondent determined that it had dredge and fill jurisdiction over certain property, and Petitioner timely requested a formal hearing regarding that determination. Accordingly, the issue in this proceeding is whether the Department of Environmental Regulation has dredge and fill jurisdiction over all or part of Petitioner's property.
Findings Of Fact Petitioner Maurice Fox owns certain real estate (hereinafter sometimes "the Fox property") located in central Palm Beach County consisting of all of Sections 12 and 13 and the easterly 3/4 of Section 24, (less certain rights of way) in Township 43 South, Range 41 East. Over a period of years, dikes have been constructed around the Fox property. The result is that the property is and has been enclosed by dikes. Larry O'Donnell, Respondent's dredge and fill supervisor in its West Palm Beach office, visited the Fox property on two occasions in 1978 after receiving a request from the Treasure Coast Regional Planning Council to determine whether the Department of Environmental Regulation (hereinafter "DER") would have dredge and fill jurisdiction over the property. After his first visit on February 24, 1978, he determined that it was questionable whether DER had dredge and fill jurisdiction over the property due to the lack of any noticeable direct connection to waters of the state. He returned to the Fox property on March 12, 1978, specifically to look for a connection between the property and waters of the state. He discovered a breach in the dike on the east side of the property approximately l/2 to 3/4 of a mile north of Okeechobee Boulevard. He observed water flowing from the west side of the dike through the breach to a ditch located just east of the dike, then south to Okeechobee Boulevard, then easterly and parallel to Okeechobee Boulevard approximately 25 yards, then under a culvert at Okeechobee Boulevard to a canal which ultimately drained into Canal C-51, which discharges into Lake Worth (the sole natural waterbody in the route), which discharges into the Atlantic Ocean. Based upon his observations, O'Donnell determined that DER did have dredge and fill jurisdiction over the Fox property due to a hydrological connection between the property and waters of the state. Until approximately five years ago there were "stop lock risers" at the culvert on the north side of Okeechobee Boulevard that prevented water from flowing through the culvert and were only opened when the Lake Worth Drainage District determined that opening the risers would not have an adverse effect on property south of Okeechobee Boulevard. Those "stop Lock risers" were removed so as to allow a constant flow. There is also a control structure at the C-51 Canal on Lake Worth that is sometimes closed preventing flow into Lake Worth and sometimes open. On May 16, 1984, Petitioner wrote DER requesting a determination as to whether DER maintained its position that it had jurisdiction over any proposed dredge and fill activities on the Fox property and the extent to which that jurisdiction extends over the subject property, citing some changes in circumstances since DER's 1978 determination. On August 29,1984, Petitioner again wrote DER, noting that DER had not yet indicated when a jurisdictional determination would be made, and citing several projects with allegedly similar characteristics to the Fox property over which DER had determined it had no jurisdiction. On November 9, 1984, Petitioner again wrote DER, noting that DER had still not made a jurisdictional determination and had not yet indicated when such determination would be made. On January 29, 1985, several DER employees, including a hydrologist and a botanist, visited the Fox property. Upon inspecting the dike to the east of that property, they discovered a breach with water flowing from the west through the breach into the ditch on the east side of the dike. The hydrologist followed the water as far as the culvert under Okeechobee Boulevard at which point the water was not backing up but was still flowing. It was therefore believed that the site is connected hydrologically and hydraulically to other waters of the state. On February 27, l9S5, DER responded to the May 16,_1984 request for determination of jurisdiction and the extent of any jurisdiction. DER advised Petitioner that it does have a dredge and fill jurisdiction for the majority of the "wetlands" located within the property boundaries and further advised Petitioner that any construction activities performed on, in, or over the "wetlands" will require a dredge and fill permit from DER prior to commencement of construction. Petitioner's request for a formal hearing followed receipt of that letter. Pursuant to a verbal agreement with the adjoining landowner to the east, on March 26, 1985, Petitioner filled the breach in the dike by excavating fill from the ditch on the east side of the dike in an area approximately opposite the breach. When DER personnel again visited the site on April 29 and 30, 1985, there was no breach, and no surface water was flowing over or through the dike. Accordingly, there was no hydrological connection on that date. Although Petitioner failed to obtain a permit for the excavation of the ditch to the east of the dike to obtain fill material for the breach, and although the issue of whether a permit was required for that activity was initially raised during the final hearing in this cause, DER changed its position during the hearing and decided that the fact that the fill may have come from the ditch was not relevant to the question of jurisdiction in this proceeding although that issue may be raised elsewhere. Since there is a fall from the Fox property east toward the historic Loxahatchee Slough, the dike to the east of the Fox property was constructed in 1965 to impound that overland flow and prevent it from flowing onto Petitioner's neighbor's property to the east. Although the dike was described at various times during the final hearing in this cause as being adjacent to the Fox property or next to the Fox property, the parties agree that the dike is not located on the Fox property but rather is located on property to the east of the Fox property. No evidence was offered to show the distance between the dike and the eastern boundary of the Fox property however, an aerial photograph admitted in evidence without objection clearly shows that the dike is not adjacent to the boundary of the Fox property although it is near the eastern boundary. That aerial photograph clearly indicates that the property east of the Fox property continues for a distance west of the dike where it is then abutted by the right of way for State Road No. 7. Repairs have been made to the east dike on several occasions, starting in the mid-70's. The breach which existed on January 29, 1985, was caused by a combination of factors. First, there is a substantial amount of all-terrain vehicular traffic crossing the dike at that point, causing the dike to wear down and weaken. Second, the hydrostatic head increases pressure against the weakening dike. Lastly, the repairs may not be properly done as was the case for the March, 1985 repair where the placed fill was not compacted and was porous. With such a combination of factors, the dike is likely to fail again. When the breach was filled in March of 1985, a ramp was constructed approximately 60 feet north of the site of the breach. Since the breached location was in a depressed area which was very wet on both sides, the ramp was designed to provide a crossing for off-road vehicles at a drier point. Other than constructing the ramp, Petitioner has taken no steps to discourage vehicular traffic from utilizing his property or driving over the dikes. No signs have been posted, and no fences have been built. Petitioner has never obtained a permit from DER prior to effectuating any repairs to the dike, and no DER personnel had ever advised that such a permit would be required. Before the breach in the east dike was filled in March of 1985, it measured no less than 20 and no more than 50 feet wide. The dike in question is approximately 1 mile long and connects to another dike which is approximately 2 miles long. Needed repairs to the dike are not always effectuated immediately. During extended periods of time, particularly during wet periods, the necessary equipment is unable to reach the specific locations requiring repair. Therefore, there are occasions when the dike is open during wet periods for long periods of time. At the time of the hearing, the parties stipulated that there was presently no water flowing off of or on to the Fox property. Witnesses for both parties agreed that, even when the dike was breached, water did not always flow through the breach. In hydrological terms, the flow of water through the dike when it was breached can be characterized as "intermittent." Under DER's rules, an intermittent stream is one that flows only immediately after rainfall. No data was offered as to the amount or recency of rainfall in the area prior to the two observations by DER personnel of water flowing through a breach in March 1978 and January 1985. One of DER's witnesses admitted that he did not have sufficient information to determine whether the flow of water when a breach exists would be considered intermittent under the Department's rules. The parties further agree that a breach in the dike does not have the effect of draining the Fox property. During such times, wetlands and impounded areas still exist due to the elevations within the Fox property boundaries. While the area of the breach itself was bare of vegetation, those plants that surrounded the breach were on the Department's list of transitional indicator species. As stipulated by the parties, there is one area along the east dike where a strip of cladium jamaicensis (saw grass) is growing over the dike north of the breached area. The parties further agree that the saw grass is the dominant species in the ground cover stratum at that particular point and that cladium jamaicensis is an indicator species listed in the submerged lands vegetative index for fresh waters in Florida under DER's rules. Witnesses for both parties further agree that there are a number of non-indicator species present in the area where the saw grass grows across the dike. In fact, of the plants identified, only the saw grass is on DER's indicator species list. Looking at the area in its entirety, non- indicator species are dominant. Where the saw grass crosses the dike, the dike is three feet high and shows no evidence of water inundating the area or flowing over the top of the dike. It appears that the dike in that area included within it bits of muck and saw grass, which explains why the saw grass could be growing there despite not being inundated by water. DER's witness admits that saw grass can grow in an area not regularly inundated with water. The presence of the saw grass alone, therefore, does not establish a vegetative connection between the waters of the state in the excavated ditch on the east side of the dike and the wetlands on the west side of the dike even though saw grass is among other wetland indicator species growing in the ditch to the east of the dike and is further present on the west side of the dike.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered determining that DER has failed to prove that it has dredge and fill jurisdiction over the Fox property. DONE and RECOMMENDED this 26th day of September, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer 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 26th day of September, 1985.
Findings Of Fact Respondent is permitted by Petitioner to treat sick and injured wildlife under a wildlife rehabilitation permit, the latest and current permit being issued to Respondent on January 21, 1983. Respondent has been engaged in the business of treating sick and injured wildlife -- including both birds and mammals -- under permit from Petitioner for at least three (3) years. Petitioner issues wildlife rehabilitation permits to those persons demonstrating to Petitioner the degree of expertise in treating sick and injured wildlife necessary to assure safety to the treated animals. In addition, Petitioner monitors wildlife rehabilitation permittees to assure that sick and injured wildlife are treated humanely and caged in a safe and sanitary manner so as to protect the health and safety of the wildlife treated and the public. In order to monitor such permittees, periodic inspections of the premises where sick and injured wildlife is treated are made by Petitioner. In addition, Petitioner required such permittees to maintain records and to submit the same to Petitioner upon Petitioner's request. Wildlife rehabilitators are notified of this requirement through an informational packet provided them by Petitioner, which specifies that permittees must keep records of specimens cared for and submit reports of same to Petitioner upon request. The requirement that records be maintained and reported to the Petitioner upon request is applied to all of the one hundred (100) wildlife rehabilitators permitted by Petitioner. Examination of records is routinely requested by Petitioner when inspecting the premises where sick and injured wildlife is kept. On at least two occasions, Petitioner requested the production of records maintained by Respondent in connection with Petitioner's inspection of Respondent's wildlife rehabilitation facilities. On neither occasion did Respondent produce records for Petitioner's inspection. On February 3, 1983, Petitioner notified Respondent by letter that Respondent should submit a report of the numbers and types of wildlife accepted for rehabilitation and the disposition of said wildlife. The letter directed Respondent to submit his report immediately and to maintain records for examination by Petitioner in conjunction with future inspections. No report was submitted to Petitioner by the Respondent. On September 8, 1983, in response to a citizen complaint, Petitioner initiated an investigation of the wildlife rehabilitation operation of Respondent. In conjunction with its investigation of Respondent, Petitioner requested of Respondent the production of the wildlife rehabilitation records on September 22, 1983. Respondent did not produce the records as requested. Petitioner again requested Respondent to produce the records on September 23, 1983, and again Respondent failed to produce the records for Petitioner. Respondent did provide, on two separate occasions, documents to the U.S. Fish and Wildlife Service, a federal agency. The documents submitted to the U.S. Fish and Wildlife Service purported to reflect numbers of birds treated by Respondent during 1982. The documents failed to reflect the type of treatment, the specific disposition of said birds, any reference to mammals, or any recording of numbers or types of mammals. The two separate documents submitted are in irreconcilable conflict as to numbers and types of birds treated. In addition, the documents contain no reference to certain birds delivered by Petitioner to respondent's wildlife rehabilitation facility during 1982. Said documents were never submitted by Respondent to Petitioner. On no occasion has Respondent produced any records or reports for 1982 to Petitioner in connection with Respondent's wildlife rehabilitation. On November 1, 1983, Respondent was informed by letter dated October 27, 1983, that Petitioner intended to revoke Respondent's wildlife rehabilitation permit due to Respondent's failure to comply with the record keeping and reporting requirements of the wildlife rehabilitation permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Game and Fresh Water Fish Commission enter a final order revoking the wildlife permit of the Respondent Jack Kassewitz, Jr. DONE and ORDERED THIS 15th day of May, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1984.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted, 35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found. OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of $250.00 be imposed for this violation; and that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2007.
