The Issue Whether Respondent established that this case meets the criteria for the revocation of Petitioner’s Class I, Class II, and III captive wildlife permits, pursuant to Florida Administrative Code Rule 68A-5.004 and Chapter 372, Florida Statutes (2007).
Findings Of Fact Petitioner Oltz is the owner of Pangaea Productions, which she operates along with a related not-for-profit corporate entity, Wild Animal World. The businesses provide wildlife shows and exhibits, and care for the animals. Oltz became a volunteer at Pangaea in 1996, then an investor when she became partners with Grant Kemmerer after buying the interest of his previous partner, Thomas Batchelor, in November 1997. Oltz was first licensed, as she remembered, in 1999. Oltz is now and has been since 2001, the sole owner of Pangaea Productions. Respondent Commission is the state agency that issued Oltz licenses and/or permits, including a Class I license, pursuant to which she exhibited a leopard; a Class II license that authorized her to exhibit, among others, monkeys, servals, and cougars (also referred to as panthers); and a Class III license to exhibit animals that include a scorpion, an alligator, an albino Burmese python, a parrot, a porcupine, a fox, and an anteater. The categories of wildlife are established based on how dangerous each group is in Florida Administrative Code Rule 68A-6.002 (1). Respondent Commission seeks to revoke Oltz's licenses to possess, exhibit, and sell captive wildlife in all classes due to incidents that occurred in the years listed below under circumstances that will be described in more detail in the findings of fact that follow: 2006 Class II cougar attack on four-year old Aisha Elgazzar when Oltz was the animal handler; 2006 Escape of a Class II serval cat during a show that Oltz was conducting; 2001 Class I leopard attack on seven-year old Matthew Tully when Oltz was the exhibitor in charge of the leopard; 1999 Escape of a Class II serval cat from Oltz's home when she had no permit or required precautions. 1998 Class II cougar attack on five-year old Holly Moynahan while Oltz was the handler; 1998 Class II cougar attack on eight-year old Victor Parades while another employee of Pangaea Productions was the handler ; and 1998 Class II cougar bite of animal handler Kimberly Royal, another Pangaea employee. The Commission has issued over 5,000 Class I, II and III permits, approximately 300 in Class I, 4,000 in Class III, leaving the remainder of about 700 in Class II. From 2001 through 2005, 32 injuries to members of the public, and 58 to owners or handlers, or a total of 90 injuries were reported to the Commission. Of the 32 injuries to the public, 18 were caused by Class III, 8 by Class II, and 4 by Class I animals (including the 2001 leopard attack on Matthew Tully). Typically, Oltz’s wildlife shows begin with her showing and allowing people, usually children, to touch or pet the Class III animals. There have been no incidents, bites or other injuries from the Class III wildlife. Lieutenant Patrick Reynolds of the Commission implied in his testimony that Oltz had allowed a Class III large yellow python to escape into her neighbor's tree farm. His testimony that he received notice that the python was in the nursery on the border by Oltz's property, that the python had been given by the farmer to a friend by the time Reynolds got there, and given to another person by the time he contacted the farmer's friend is rejected in light of the absence of corroborating evidence, his apparent lack of impartiality in dealings with Oltz, and the animosity that has developed between the two of them over the years. Contradicting Reynolds, Captain John West, also a Commission staff person, testified that he was not aware of any Class III injuries and/or incidents involving Oltz. Before Oltz displayed the Class II cats, she warned her audiences that the next animal would be bigger and stronger, that they would not be allowed to touch it, and that they must remain seated, and stay calm and quiet. On November 18, 2006, Oltz displayed wildlife at a birthday party for a seven-year-old at the home of Francisco Unanue in Coral Gables, Florida. Approximately 40 children attended, many with their parents. Oltz had previously notified the homeowner of the requirement of shade for the animals and a tent had been set up on the edge of a swimming pool, which she also used as a barrier to prevent Oltz and the animals from being approached from behind since this was not a swimming party and no one was swimming. After each animal was taken out and showed to the audience, it was returned to its cage. The cages were stacked on either side of Oltz with the pool behind her. Following the typical sequence for her shows and after her warnings, Oltz took Georgia, a 60-pound cougar in a complete body harness on a leash, out of a cage. While Oltz was talking to and facing the audience, she admitted that she knew the cat was focusing its attention on something behind her but, assuming it was a float in the pool or some other object, she continued to face the audience and talk about the cougar. Four-year-old, Aisha Elgazzar came from behind the cages along the edge of the pool. The cat had been focused on Aisha and attacked her, causing injuries to her eye, cheek and ear that required stitches. Other adults at the party intervened to hit the cougar assist Oltz by pulling the cougar away from the child. Although Oltz testified that she tried to use cages to create barricade behind her and to keep audiences at least ten feet from the animals, based on measurements taken at the Unanues' home during his investigation and the videotape of the wildlife show at the birthday party, which was viewed during the hearing, Lieutenant Reynolds' opinion is credible that there was a twelve inch space between the kennels stacked three high and the pool, and that the some in the audience were as close as four feet in front of the show. Otlz pointed out that the videotape shows Aisha on her father's lap earlier during the show and implied that he should have kept her there. The videotape also shows Aisha and at least one other child on a glider near the other end of the pool during the wildlife show, but Oltz never looked behind her. After the November 2006 attack, Oltz received an order requiring her to suspend showing Class II animals and to surrender the cougar involved for euthanasia so that its brain could be examined to determine whether it had rabies. In an attempt to avoid the possibility of the seizure of Georgia, Oltz kept the cat with her at all times, and argued that testing Georgia approximately two weeks after the incident was pointless since Georgia had been vaccinated against rabies and that rabies shots for the child had to have started within 48 hours of the bite, if in fact infected. According to Oltz, the warrant to seize the cat was prompted by revenge and pressure from the injured child’s father. There was credible evidence that the health department might reasonably have issued the warrant to avoid having the child unnecessarily continue a series of rabies shots. There was also expert testimony that rabies shots developed for dogs and cats have, as far as has been documented, effective in preventing rabies in captive wildlife and the vaccination of captive wildlife is prudent. It is, however, an "off-label" use, meaning officially not approved having not been specifically developed for use on captive wildlife. On October 31, 2006, while Oltz was displaying a serval cat at a south Florida resort, an inflatable Halloween decoration behind her began collapsing and falling towards her. The frightened serval jumped out of her arms, Oltz let go of the leash, and the cat escaped. The cat was captured approximately seven weeks later. As a result of the incident, Oltz was charged and acquitted of a criminal offense for permitting the serval to escape. On December 8, 2001, Oltz was hired to exhibit animals at a Broward County park. She placed a one-year-old, 50 pound leopard in a corner that had shelter and what she believed were adequate barriers on two sides, bushes on one and a fence on the other. The leopard was in a full body harness chained to a post. Although she was the handler responsible for the leopard, Oltz turned her attention to another trainer who was handling a lemur to suggest how he might accommodate the wishes of a photographer to photograph the lemur in a tree. While Oltz was distracted, seven-year-old Matthew Tully came through the bushes and was bitten on his head by the leopard. As part of a plea bargain to settle criminal charges, Oltz surrendered her Class I license to the Broward County Court. While Oltz testified that her Class I license was permanently revoked, the evidence did not indicate that it was ever surrendered to the licensing agency for the state, the Commission, but she is not requesting, in this proceeding, nor and does not seek to possess a Class I license or permit. Although the cat that attacked Matthew was a leopard named China, Oltz reported falsely that it was a serval for fear of having to give up the leopard. She admitted that she tried to persuade her former partner, Kemmerer, who had moved to Pennsylvania, to say that the leopard was with him. Kemmerer reported her attempt to get the animal out of Florida to Reynolds. Oltz's other apparent motivation for making the false report that it was a serval rather than a leopard was that, at the time, she did not have enough property under lease to meet the size requirements for keeping a Class I animal. Oltz pled nolo contendere to making a false report and to other charges stemming from her negligence in the incident. Oltz testified that she booked the engagement that led to Matthew's injuries through an agent whom she had used before and whom she blames for knowing that the particular exhibit he requested was not suitable for an event like a company family picnic. She testified that the agent used her as a last minute substitute for petting zoo that canceled. Nevertheless, Oltz made a conscious decision to proceed with the exhibit even after she personally saw that it was inappropriate for the venue. She testified that it was her plan to compensate for the danger by limiting the time the animals were out of their cages. In October 1999, a serval cat named Foster escaped from Oltz’s home and was recovered after a couple of hours. She blames the escape on a visitor to her home who left the door open. Although Oltz testified that Kemmerer, who held all the licenses at that time, was living with her, she conceded that Kemmerer had a separate address-of-record, and that the escape was from her address-of-record. Oltz had not obtained, until after the incident, a personal pet license to keep Foster in her home rather than at the ranch area where the wildlife animals were allowed to be kept under the licenses. Only after the escape did she obtain the required license, and comply with the requirement to have a separate room for the serval with bars on the window, and a door with an automatic locking mechanism. In March 1998, Kimberly Royal, a handler who had worked for Pangaea Productions for four years, was bitten by Shasta, a cougar, and her finger was severed and surgically reattached. Oltz believes that the handler was at fault and should not have stuck her finger into the cage to scratch the cat and that handlers are not expected to have the same protections as members of the public. Commission witnesses agree that a higher duty of care is owed to the general public than to handlers and other employees, although they too should be protected from the negligence of others and incidents affecting employees must also be reported. There is no evidence that Oltz or Pangaea were responsible for Royal's injury. In May 1998, Randal Wilson, a handler for Pangaea Productions, with the consent of her then co-owner, Kemmerer, according to Oltz, allowed public contact with the same cougar that had bitten Royal, Shasta. The cougar bit Victor Parades, an eight-year-old, who with his parents was allowed to enter a barricade to take a picture standing behind the cat. Victor darted in front of the cougar towards his two or three-year-old sister, who had been barred because of her young age from the photo shoot, when he saw her climbing over the barricade. The cougar attacked Victor, biting into his thigh requiring emergency room stitching to close the wound. Wilson was also bitten on the hand trying to stop the cat. According to Reynolds, Kemmerer said he was out-of-town and denied that he made the decision to use Shasta around children after she had previously bitten a handler. Reynolds believed Kemmerer, not Oltz, who testified that she would have preferred to have Wilson use Scuffy, a cat that was more appropriate for use around children. She did not indicate that she made her preference known at the time, and in fact said that she was still learning the business, that Kemmerer was in charge and, therefore, that he is to blame. The Commission subsequently changed its rules so that photo shoots with dangerous animals are allowed only with contracted professionals, not with members of the general public. On December 23, 1998, Oltz was the handler at a wildlife show for a birthday party for a young child when five- year-old Holly Moynahan was attacked by the cougar, Chase. Oltz testified that Holly's mother dropped her off at the party and that she, Oltz, did know that her mother was not present. Holly, she testified in deposition, was unaccounted for when everyone sat down. Holly came from behind the kennels, between the kennels and some bushes. The cat, reportedly, jumped on Holly's back and its teeth sliced open her scalp from her head to the base of her neck. Subsequent criminal charges were resolved in a settlement agreement. For a probationary period of one year, Oltz was required to use a portable fence as a barrier between wild cats and the public. The judge required that the barrier be approved by Lieutenant Reynolds. There was a dispute between Oltz and Reynolds over the adequacy of the barriers she proposed to use. Reynolds testified that the barriers that he did not approve were a free- standing portable dog kennel approximately 30 inches tall and one made out of white PVC pipe with plastic ties. Ultimately, he approved one made with metal panels equipped with stanchions, that he believes was made to comply with his requirements, at the direction of Kemmerer not Oltz. Oltz testified that Reynolds deliberately held up approval of a barrier. The approved barrier was used for the year during which there were no injuries, then discontinued. Reynolds said the use of the barrier was to be continued, based on a policy set by Kemmerer before he left Pangaea, but that Oltz changed the policy. Oltz said the requirement was applicable only during the probationary period and that barriers give a false sense of security, as she said was later shown in a subsequent incident involving injuries to Victor Parades. Oltz testified that it is preferable to have a second trainer to watch what is happening behind the main trainer, but she only made that preference optional for her clients, offering lower prices if only one rather than two handlers attended a show. In 2007, for example, she testified that only 30 shows were booked at the higher cost for two trainers. In the same incident in 1998, Oltz was charged by the USDA of mishandling the lemur for agreeing to place the lemur in a tree. According to Oltz, the lemur was not mishandled and she only entered a consent agreement with the USDA to avoid a personal fine of up to $65,000 and another fine against Pangaea for up to $50,000. Instead, she entered into the agreement and paid a $5,000 fine. Oltz testified that Pangaea Productions had an audience of 191,632 people at public and private events in 1997, with no incidents of bites or escapes. In 1998, it had an audience of 41,417 at private shows and 186,150 at public shows or exhibitions, or a total of 227,567 people. That was the same year that Oltz says the handler was injured at her own fault and that the Victor Parades' injuries by the same cat that injured Royal, were Kemmerer's fault. It is also the year that Oltz was sentenced to probation, after being the sole handler when a cougar injured five-year old Holly. Inexplicably, Oltz testified that she was not licensed until, she believed, 1999. In 1999, when the serval cat, Foster, escaped from Oltz’s home for only a couple of hours due to what Oltz claimed was a visitor's negligence, 38,872 private attendees and 175,200 public attendees, or a total of 214,072 people saw Pangaea Productions shows and exhibits, with no injuries. In 2000, total attendance was 205,000 with no injuries to the public. That was during the time that Oltz was required to use a court- ordered barricade. In 2001, when Oltz took complete control of the business, 209,462 people attended shows and exhibits, and the leopard attacked Matthew Tully while she was the exhibitor in charge of the leopard. During 2002, one park discontinued the use of Pangaea Productions shows and exhibits due to the negative press related to Matthews's injuries. In 2002, the total number of people who attended shows and exhibits was 64,738, with no incidents of bites or escapes. In 2003, 47,197 people attended shows and exhibits, with no adverse incidents. In 2004, 44,995 people attended exhibits or shows with no attacks or bites. In 2005, 48,848 people attended the shows and exhibits with no injuries. In 2006, the total number of people attending shows or exhibits was 53,526, when Oltz handled the cougar that attacked Aisha Elgazzar, and the serval escaped on Halloween. After the cougar attack in November 2006, Oltz has continued to do shows with only Class III animals. As of the date of the hearing in 2007, she had conducted 312 shows with a total attendance of approximately 20,000, with no bites, injuries, or escapes. Over the years, Oltz has had an audiences of 1,307,326 people with four injuries to the public, or three one millionths of a percent of attendees injured. Oltz currently owns a spot nose guenon monkey, a vervet monkey, three serval cats, and two panthers, or a total of seven Class II animals; and 39 mammals, alligators, and snakes that are Class III wildlife. Oltz earns a salary of $35,000 a year, from approximately $200,000 a year in gross receipts to Pangaea Productions. She is a high school graduate, who also took psychology and mathematics classes at a community college. Oltz believes her business will be adversely affected by not having a cougar in the exhibits and shows, but that a serval could be substitute of and that the financial impact also could be mitigated by the use of monkeys, the second most frequently requested animal after the cougar. Oltz also asserted that at least five other competing businesses exhibit captive wildlife, including cougars, the animal most requested for the shows, and that her shows are safer because all of the animals she uses are hand raised and vaccinated for rabies. None of her animals has ever been found to have any diseases. By using the same animals over and over in shows, in contrast to some of her competitors, Oltz asserted that her animals learn the routine and behave better. Oltz’s animals are kept in larger than required cages, designed to resemble their native habitats and are subject to random inspections at least every four months by USDA. The concrete floors of the cages are sterilized weekly. Only after Hurricanes Katrina and Wilma did the Commission find unsafe damaged older wooden cages at Oltz's facility. The Commission has never had issues concerning the sanitation or cleanliness at current Pangaea location In response to Oltz's assertion that the Commission unfairly and arbitrarily targets her and overlooks violations by her competitors, Lieutenant Reynolds testified that she has had a lot more incidents than her competitors. One competitor is Batchelor, the former Pangaea partner from whom Oltz bought her interest, who reportedly had three bites from 1997 or 1998 to 2005. Reynolds investigated Batchelor for a cougar bite around 1997 to 1998, and a lemur bite in 2004, both to the members of the public. Reynolds believes that Batchelor now uses a stage and barricades for his shows but conceded that Batchelor probably does not carry a stage to birthday parties. In 2005, Batchelor was cited for improperly securing a cage after a ringtail lemur escaped and bit a worker at his ranch. Although Reynolds testified that he once "camped out at the State Attorney's Office" trying to get Batchelor prosecuted criminally, the Commission has not taken any action to restrict, suspend or revoke any licenses held by Batchelor. Another competitor is Vanishing Species, operated by Jeffrey and Barbara Harrod, in Broward County. Lieutenant Reynolds initially testified that he has not investigated nor heard of incidents involving that company that resulted in injuries to the public. On cross-examination, Reynolds did remember investigating when a Siberian tiger bit Mr. Harrod himself. Captain West recalled investigating the biting and scratching of a three-year-old, during a photo shoot, by the Harrods' monkey, for which they received a warning in February 2000. Eight months later, a five-year-old child was bitten on the chest while petting a cougar owned by Vanishing Species. A recommendation for non-renewal of the Harrod's license was, according to Captain West, forwarded to the administrative staff in Tallahassee, but their license was, nevertheless, renewed. Otlz testified that Lieutenant Reynolds overlooked violations by the Metro Zoo. Reynolds testified that after a tiger killed a handler at the Zoo, the final finding was that it was "handler error." Metro Zoo has had incidents that Reynolds considers not unusual for large wildlife facilities, including a kangaroo bite, and elephant that threw a handler against a rock resulting in broken collar bones, ribs and bruised spleen, and an orangutan that broke a veterinarian's arm. Despite Oltz's allegations and Reynold's discrepancies and claim of lack of memory, the record supports that conclusion that Oltz has had more incidents than her competitors. Even excluding the handler's bite and the Parades' attack where she was not the handler and blames Kemmerer for selecting the wrong cougar, her situation is distinguishable from that of her competitors. First, the attacks on the Elgazzar, Tully and Moynahan children were serious and resulted from the same negligent failure to pay adequate attention to the surroundings, and to her failure to take reasonable safeguards, including the use of barricades or another person to observe what was happening behind her. Second, Oltz blatantly and deliberately violated the law by identifying a different cat in the most recent attack and by keeping a serval as a pet without the proper permit and precautions. It is also a matter of great concern, if not an aggravating circumstance, that Oltz blames others: (1) when she failed to, at least give her opinion, about the appropriate cat to use; (2) when she did not refuse to display animals in what she knew to be an improper venue with children, (3) when she had not obtained the proper permit or installed the required precautions for keeping a Class II animal in her home, (4) when she suggested that the injuries to a child occurred because her mother dropped her off at a birthday party and that a father was at fault for not keeping his child on his lap throughout her show. Her attitude and priorities, as well as her disregard for the law, will be troublesome for the Commission, especially if Reynolds in the investigator assigned to her area and if she continues to have a captive wildlife permit.
Recommendation Based upon the foregoing Findings of Facts found and Conclusions of Law reached, it is hereby RECOMMENDED that a final order be entered which revokes Class I and II captive wildlife permits and/or licenses issued to Corrine Oltz and/or to any related business entities. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 10th day of October, 2007. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Alan S. Ross, Esquire Robbins, Tunkey, Ross, Amsel, Raben Waxman & English, P.A. 2250 Southwest 3rd Avenue, 4th Floor Miami, Florida 33129 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050
The Issue The issue is whether the Florida Game and Fresh Water Fish Commission (Commission) should renew Respondent's permit to possess captive wildlife.
Findings Of Fact Operating under the name of South Florida Reptile Exchange, Respondent, Alvin Weinberg, has been permitted since 1978 by the Commission to possess captive wildlife. On September 2, 1992, the Commission issued an Administrative Complaint seeking to deny renewal of Respondent's permit for violations of minimum pen specifications and unsanitary and inhumane conditions at his facility. Under Rule 39-5.004, Florida Administrative Code, the Commission may revoke or deny renewal of any license or permit if the licensee or permittee is convicted or found guilty, regardless of adjudication, of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission. On June 16, 1992, Respondent's facility was inspected by Lt. Charles Dennis and Lt. John West. In the course of that inspection, they found a number of unsanitary and inhumane conditions. Specifically, most of the water bowls for the animals were empty. There were dead animals, maggots and an accumulation of fecal matter in many cages. Up to 150 turtles were kept in one pit that measured only 5' X 5'. Many reptiles had not been fed properly. For instance, one Monitor lizard was so emaciated that the inspectors were surprised it was still alive. The conditions found at Respondent's facility on June 16, 1992, were the worst seen in the 17 years experience of Lt. Dennis. Respondent was issued two criminal citations on the basis of these observations, for violations of a Commission rule relating to sanitation requirements and the humane treatment of captive wildlife, Rule 39-6.0023(5), Florida Administrative Code. These citations resulted in a criminal conviction of Respondent in St. Lucie County Court, Cases 92-1754MM and 92-1755MM. Respondent was previously issued a criminal citation in July of 1991 for violation of a Commission rule relating to sanitation requirements and humane treatment of wildlife at his facility. This citation also had resulted in a criminal conviction in St. Lucie County Court, Case 91-1345MM. Before these criminal proceedings, Respondent had received warning citations from inspectors for violations of Commission rules relating to sanitation and the humane treatment of animals. During the pendency of these proceedings, Respondent's facility was inspected again on January 6, 1993. Some conditions at the facility had improved, but there were still deficiencies related to sanitation and the humane treatment of the animals. Respondent has consistently been below the industry standard with respect to sanitary conditions and the humane treatment of wildlife kept at his facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's application to renew his permit to possess captive wildlife be DENIED by Final Order of the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1993. COPIES FURNISHED: James T. Knight III Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mr. Alvin H. Weinberg South Florida Reptile Exchange 20510 Glades Cutoff Road Port St. Lucie, Florida 34987 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
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 deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 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 32399-1600 (eServed)
Findings Of Fact Stipulation The parties have stipulated to the following: There was no necessity for taking of live testimony on the scheduled hearing date of January 13, 1987. The Petitioners are substantially affected by the pending rule and are proper parties to this proceeding. The Division of Administrative Hearings has no jurisdiction to determine either Florida or federal constitutional questions which may be pending in this matter. The constitutionality of the proposed or pending rule is a matter that may be raised in Court for the first time should either party appeal the decision made herein or institute a separate proceeding concerning the constitutionality of the proposed rule. The Commission currently issues permits to out-of-State individuals or businesses for the purpose of bringing jack rabbits or hares into the State. According to the records and best estimates of the Commission, there are five importers who import into the State approximately 50,000 jack rabbits or hares per year. These, in turn, are delivered to approximately 5,000 greyhound trainers, breeders and ranches. None are released into the wild. Prior to the passage of 86-179, Laws of Florida, which provides that it is an unlawful cruelty to animals, called "baiting," to train racing greyhounds with live animals, the majority of racing greyhounds were trained with live jack rabbits. This involves the chasing of the jack rabbit by the greyhound, which usually catches it and kills it. The Commission passed the rule described herein, but continues to issue importation permits pending a determination of the validity of the rule. If determined valid, issuance will cease. The Commission possesses, and there shale be entered into evidence, its biologist's report on jack rabbits in the State of Florida. Each party may fairly comment on the report. The Petitioners and all those similarly situated will suffer substantial economic impact if they are unable to utilize jack rabbits in the training of racing greyhounds. This is true whether the jack rabbit is living or dead at the time of training. It is the Commission's position that this impact is as a result of the enactment of 86-179, Laws of Florida, and not its rule. (End of Stipulation.) Effective October 1, 1986, Florida Statutes 828.122 was amended by 86- 179, Laws of Florida. That amendment changed the definitions of "animal" and "baiting" to prohibit the use of live animals in the training of racing greyhounds. On August 18, 1986, the Commission published its proposed Rule 39- 12.011 to "supplement legislative prohibitions enacted in 86-179, Laws of Florida." The proposed rule read as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.) to train racing greyhounds. The Executive Director may issue permits authorizing the importation, possession or use of such live hares or jack rabbits for scientific or educational purposes." After publication of the proposed rule and the filing of the subject petition, the Commission promulgated an amended version of the rule, duly noticed, which is now pending. That proposed rule reads as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.), except as authorized by permit issued in accordance with Rule 39-9.002, Florida Administrative Code." The proposed rules challenged in this proceeding were, as indicated by the publication in the Florida Administrative Weekly, proposed under specific authority of Article IV, Section 9 of the Florida Constitution, Sections 372.265 and 372.021, Florida Statutes. Thus, the Commission is apparently, at the outset at least, proposing the rule under both its Constitutional authority as well as the supposed legislative authority to enact the subject rule. The Constitutional provision cited above, as well as Section 372.265, Florida Statutes, and Chapter 86-179, Laws of Florida, is cited in the Notice of the Proposed Rule Enactment as being the "law implemented" by the proposed rule. The Commission has thus elected to promulgate rules in accordance with the procedures contained in Chapter 120, Florida Statutes, the Administrative Procedure Act. The jack rabbit, and more specifically the black-tailed jack rabbit, imported into Florida for the purposes of greyhound training in the past, is a species of wild animal life indigenous to arid or semi-arid areas lying west of the Mississippi River. It has historically been imported into Florida for the above-mentioned purpose and some small numbers have escaped captivity and there is a population of an unknown size existing in the wild in the south-central or southern portion of the State. There is no question that she jack rabbit, the subject of the proposed rule, is a species of "wild animal life."
The Issue The issue is whether Petitioner's applications to renew her Licenses to Possess Class II and III Wildlife for Exhibition or Public Sale should be approved.
Findings Of Fact The Commission is the state agency that has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. Before moving to her current residence in Kissimmee, Petitioner resided in Tampa, where she possessed a bobcat kitten and a kinkajou, a small rain forest creature. In May 2012, she advised the Commission by email that she intended to move to Central Florida. She requested that the Commission provide her with copies of rules that would apply if she kept a bobcat inside her new residence. In response to that request, the Commission provided her with copies of all applicable rules. She was also told that, in order to secure the bobcat, she would have to install chain link on her windows and a secondary safety entrance to the home. These features are necessary in order to ensure public safety. On an undisclosed date, Petitioner moved to a 2,000 square-foot home located at 8520 Sioux Trail, Kissimmee, where she established a captive wildlife facility. Later, she acquired two more bobcats, which she intended to use for presentations and educational shows in the Central Florida area. For that purpose, she formed Florida's C.L.A.W.S., an unincorporated organization that exhibits and sells wildlife at local events in Central Florida to educate the public about, and raise money for, the care of her animals. Her full-time vocation, however, is a tattoo artist, which requires that she work around 60 hours per week, often late into the night and during the early morning hours. "Captive wildlife" species are listed in Florida Administrative Code Rule 68A-6.002. The rule establishes three classes of captive wildlife: I, II, and III. Each requires a license issued by the Commission. Until it expired on March 5, 2015, Petitioner possessed a Class II license, issued on March 14, 2014, which allowed the exhibition and sale of Felidae (the family of cats). Until it expired on June 10, 2015, she also possessed a Class III license, first issued on June 3, 2011, which allowed the exhibition and sale of mammals, birds, reptiles, amphibians, and conditional species. By holding these licenses, she was responsible for the care of the captive wildlife at her facility. The instant case involves her applications to renew the two licenses. After her licenses expired and the two applications for renewal denied, on July 1, 2015, a Notice to Relinquish Wildlife was issued by the Commission. In response to that order, Petitioner moved her Class II and III captive wildlife to a friend's facility, where they remain pending the outcome of this proceeding. Currently, she keeps only dogs and cats at her home. When the Kissimmee facility was fully operational, Petitioner had more than 30 animals/reptiles, including foxes, bobcats, skunks, snakes (non-venomous), tegu lizards, and a kinkajou. All of these species are listed as captive wildlife in rule 68A-6.002. On February 25, 2014, an announced, routine inspection of Petitioner's facility was conducted by Captive Wildlife Investigator Damon Saunders. This type of inspection is required when a new facility is established. During the inspection, Investigator Saunders observed seven rule infractions, which are noted in his report and depicted in photographs taken that day. See Resp. Ex. C and D. Overall, he found the condition of the facility to be "substandard." The documented violations on February 25, 2014, are as follows: There was no safety entrance for the bobcat enclosure, as required by rule 68A- 6.003(1)(a); There was rusting that affected the structural integrity of the bobcat enclosure, in violation of rule 68A-6.0023(5)(e); Weld spots on the east side of the bobcat enclosure were coming undone due to corrosion in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The kinkajou was housed in a bird cage, in violation of rule 68A-6.004, which requires a cage size of six feet by eight feet, and six feet high; There was no record for the source of acquisition for her reticulated python, which is required by rule 68A-6.0023(6); A microchip passive integrated transponder (PIT) tag was not detected for the reticulated python; a PIT tag is required by rule 68-5.001(3)(e)2.; and The fox and various reptile enclosures had dirty water bowls, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean. At the end of the inspection, Investigator Saunders met with Petitioner and identified each infraction he observed; he explained how each should be corrected; and he told her that she had 30 days, or until March 27, 2014, to correct the violations. She was also given a copy of the Commission's captive wildlife rules, with the violated rules highlighted. Although Investigator Saunders observed several other violations that day, they were not noted on his inspection report because he knew the facility had just been established, and he wished to give Petitioner additional time in which to get her facility operating in accordance with all rules. On July 28, 2014, or approximately five months later, an unannounced, follow-up inspection was conducted by Captive Wildlife Investigators Steven McDaniel and Rick Brown. The purpose of the inspection was to determine if the violations observed on February 25, 2014, had been corrected. The inspection was purposely delayed until July, rather than 30 days after the first inspection, so that Petitioner would have adequate time to take corrective action. Petitioner complained that the inspection occurred when she just awoke around 10:20 a.m., after a long night at work and before she had time to clean the facility. For obvious reasons, however, the Commission does not give licensees advance warning of follow-up inspections. During the inspection, the investigators noted that Petitioner had six foxes, three bobcats, two skunks, a kinkajou, a reticulated python, and several nonvenomous snakes. With the exception of the safety entrance for the exterior bobcat cage, Petitioner acknowledged that none of the violations observed during the first inspection had been corrected. The investigators found some wildlife living in outdoor cages or other enclosures, while others, including two skunks, a bobcat, a kinkajou, a reticulated python, and several reptiles, were living in her home. Investigator McDaniel testified that "it looked as if very little had been done" and characterized the condition of the wildlife as "mediocre to poor." Investigator Brown noted that there was an "extreme" lack of care of the wildlife, the violations were "serious," and they were having an adverse impact on the health and well-being of the wildlife. The investigators observed a number of rule violations, which are listed in their Inspection Report and depicted in photographs taken that day. See Resp. Ex. E and F. The rule violations are summarized below: The outer safety door for the cage containing two bobcats was unsecured, in violation of rule 68A-6.0023(2)(b), which requires the cage to be sufficiently strong to prevent escape; There was standing, stagnant water in the bobcat shelter, in violation of rule 68A-6.0023(1), which requires wildlife to be maintained in sanitary conditions; Both the bobcats' water container and water in the container were dirty, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean and requires clean drinking water to be provided daily; There were large amounts of old and fresh fecal matter throughout the bobcat cage, in violation of rule 68A-6.0023(5)(d), which requires fecal waste to be removed daily from inside, under, and around cages and stored or disposed of in a manner which prevents noxious odors or pests; and carrion flies were evident on the fecal matter; The bobcat cage floor had not been raked every three days, as required by rule 68A- 6.0023(5)(e); The rust in the bobcat cage that was observed during the February 25 inspection was still evident and excessive, in violation of rule 68A-6.0023(5)(e), which requires any surface of a cage or enclosure that may come into contact with animals to be free of excessive rust that prevents the required cleaning or that affects the structural strength; The broken welds on parts of the cage panel walls on the bobcat cage observed during the February 25 inspection had not been repaired, in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The cage for the two foxes measured ten feet by five feet, two inches by six feet, and did not meet the caging requirements of eight feet by six feet by six feet specified in rule 68A-6.004(4)(h)2.a.; A fox was found in a small kennel cage inside Petitioner's home under veterinary care for an injured foot in violation of rule 68A-6.0041(2), which requires animals being temporarily housed in smaller cages for veterinary care to be in cages no smaller than that required for the caged animal to stand up, lie down, and turn around without touching the sides of the enclosure or another animal; Digging was observed between outdoor fox cages exposing the bottom apron in violation of rule 68A-6.003(1)(b)1., which requires the bottom apron to be buried to prevent injury to the captive wildlife in the enclosure; Two snakes in the bull/gopher snake family were observed in their own cages without water and a ball python was observed in a glass cage without water in violation of rule 68A-6.0023(5)(b), which requires that clean drinking water be provided daily; The ball python was in a glass cage with shed skin and old fecal matter; there were two Machlot's pythons in a large cage that was littered with excessive old fecal matter and old shed skins; a boa constrictor cage had old fecal matter in it; the reticulated python cage had old fecal matter and shed skins throughout the cage; the tegu lizard cage had old feces; all in violation of rule 68A-6.0023(5)(d), which requires fecal material to be removed daily, and rule 68A-6.0023(5)(e), which requires hard floors within cages or enclosures to be cleaned a minimum of once weekly; The kinkajou was still housed in the bird cage, which was too small; there was no water or food present; the floor of the cage was covered in old fecal matter; and Petitioner admitted that the cage had not been cleaned in four days. These conditions violated rule 68A-6.0023(5)(b) and (c), which requires the animals to be provided clean drinking water and food; The third bobcat was being housed inside Petitioner's house in a spare bedroom lacking a safety entrance as required by rule 68A-6.003(1)(a); the two doors leading into the room were hollow-core doors and not of sufficient strength, and there was no required wire or grating covering the windows, in violation of rule 68A- 6.003(3)(e), which requires potential escape routes to be equipped with wire or grating of not less than 11.5-gauge chain link or equivalent; Two skunks were housed in a spare bedroom that adjoined the bobcat cage room; the floor was covered in mainly old, but some new, smeared fecal matter; there were no water bowls; the bathroom window was open and only covered by the typical bug screen associated with household windows; all in violation of rule 68A-6.0023(5)(d), which requires cages and enclosures to be ventilated to prevent noxious odors, and rule 68A-6.003(3)(h), which requires the room to be constructed of materials of not less than 14-gauge wire or strength equivalent and the escape routes to be secured; Petitioner was unable to provide records of acquisition of any animals in her possession, as required by rules 68A-6.0023(6) and 68-5.001(3)(e).6.; and Petitioner's Critical Incident Disaster Plan was only partially completed, in violation of rules 68A-6.0022(7) and 68-5.001(3)(e)5. Each of these violations is substantiated by clear and convincing evidence. At the conclusion of the inspection, Petitioner was given another copy of the Commission's rules, with the violated rules highlighted; she was told how each infraction should be corrected; she was asked if she had any questions regarding the violations; and she was given another copy of the first inspection report. A new 30-day deadline was established for correcting all violations except the source of acquisition and critical incident plan, for which she was given 60 days to take corrective action. However, no follow-up inspections were made. Petitioner contends that if the follow-up inspection on July 28, 2014, was made later than 10:30 a.m., she would have had time to feed and water the wildlife and clean their cages. However, the amount and appearance of the feces, the presence of snake skins, and the appearance of dirty water bowls in the enclosures indicates that the enclosures had not been cleaned for an extended period of time. During the first inspection, Petitioner identified the source of acquisition of all wildlife, except the reticulated python. After the first inspection, Petitioner acquired a boa constrictor, two Macklot's pythons, four tegus, two carpet pythons, one gopher snake, one bull snake, four sulcatta tortoises, one blue tongue skink (lizard), and one Central American wood turtle. However, she was unable to produce acquisition paperwork for any captive wildlife. She blamed this on the fact that many of her wildlife were donated to her or purchased at exhibitions, apparently meaning that the names of the donors or sellers were unknown. Acquisition information is essential, as the Commission uses these records to combat the illegal trafficking of wildlife. Petitioner blamed many of the facility violations on a lack of financial resources and personal issues in her life that arose in 2014, leaving her with little time or resources to comply with Commission rules. She pointed out that an injury to one of the foxes required an expenditure of almost $2,000.00 in one month alone, which drained her resources; her father was diagnosed with a terminal illness and passed away a short time later; and her fiancée required two surgeries, which prevented him from assisting her in caring for the wildlife. She also testified that she was working 60-hour weeks as a tattoo artist to support herself, which left very little time to care for the wildlife. Given these time constraints, it is surprising that she continued to acquire even more wildlife after the first inspection was made. While Petitioner maintains that the exhibition and sale of animals is intended to support her facility, it is apparent that whatever money was generated by that activity is insufficient to adequately care for the wildlife. In sum, Petitioner contends that many of the violations are unwarranted or simply technical violations of the rules, or other circumstances prevented her from taking corrective action and maintaining the facility in accordance with Commission rules. The evidence belies this contention. Although the Commission presented evidence of alleged violations of United States Department of Agriculture rules observed during an inspection by that agency on June 30, 2015, for which warnings were issued, these violations were not cited in the Notice of Denial as a basis for denying the applications and have been disregarded by the undersigned. See, e.g., Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31, 34 (Fla. DCA 1993)(matters not charged in an administrative action cannot be considered as violations). Likewise, Petitioner's contention that the Commission failed to act on her applications within 90 days, raised for the first time during her testimony, has been disregarded as being untimely. See also § 120.60(1), Fla. Stat. Although each infraction noted during the second inspection constituted a violation of state law, a criminal citation for only three violations was issued and reported to the local State Attorney's Office. These included a failure to correct the violations noted during the February inspection; maintaining captive wildlife in unsanitary conditions; and improper caging for Class II wildlife. However, the State Attorney decided to prosecute Petitioner for all violations. On July 28, 2014, criminal charges were filed in County Court. On advice of her counsel, on April 24, 2015, Petitioner pled guilty to all charges and was adjudicated guilty of maintaining captive wildlife in unsanitary conditions in violation of section 379.401(7). Besides having a fine imposed, Petitioner was placed on probation for six months and required to perform community service. Under the terms of her probation, she was ineligible to possess Class I or II wildlife for the duration of her six-month probation period. Just before her criminal case was concluded, Petitioner filed applications to renew her licenses. A major impediment to approving them is a Commission rule that requires denial of an application if the applicant has been adjudicated guilty of a violation of any provision of chapter 379. See Fla. Admin. Code R. 68-1.010(2). The same rule provides, however, that denial is not automatic, as the Commission is required to consider nine factors when determining whether to approve or deny an application. See Fla. Admin. Code R. 68-1.010(5)(a)- (i). After considering each relevant factor, the Commission issued its Notice of Denial on June 11, 2015. Petitioner then requested a hearing. Petitioner unquestionably cares for wildlife and would never intentionally harm them through inattention or lack of care. However, due to personal and financial issues, and full- time employment outside her home that consumes much of her time, she is unable to comply with Commission rules for operating a captive wildlife facility. There is clear and convincing evidence to support the Commission's denial of the applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife and Conservation Commission enter a final order denying Petitioner's applications for Class II and III Wildlife licenses. DONE AND ENTERED this 26th day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2016. COPIES FURNISHED: Eugene Nichols "Nick" Wiley, II, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Rachel Arnott 8520 Sioux Trail Kissimmee, Florida 34747-1531 (eServed) Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Whether Petitioner is entitled to an award of attorney's fees as a prevailing small business party in an adjudicatory proceeding initiated by a state agency as provided under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, A.S., is the primary custodial parent of the child, A.S., who is now ten years old. At the time of the original incident, A.S. was a full time state wildlife law enforcement officer. On May 18, 1991, Respondent initiated a child protective services investigation in which resulted in the creation of FPSS Report 91-052785, wherein the Respondent proposed to confirm Petitioner as the perpetrator of abuse or neglect of his child. Petitioner requested and obtained a formal hearing before the Division of Administrative Hearings. This resulted in the issuance of a Recommended Order, dated February 28, 1992, wherein this Hearing Officer recommended that Petitioner's name be expunged from the Abuse Registry. The Respondent rejected the recommendation and issued a Final Order denying Petitioner's request for expungement. The Final Order was appealed to the Second District Court of Appeal and subsequently to the Supreme Court of Florida which reversed the Final Order of the Department. On remand from the Court, the Department issued a Final Order on Remand, dated January 20, 1995, which expunged Petitioner's name from the Abuse Registry. Petitioner is clearly the prevailing party in this matter.
The Issue The issue to be determined in this case is whether the Petitioner, Kimberly Wysong, is entitled to approval of her application to add authorization for the family giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale.
Findings Of Fact The Parties The Petitioner currently holds a license to handle certain Class I and/or Class II animals, e.g., Class I baboons and Class II primates. She is currently employed by Jerry Holly, and along with other full-time and part-time employees, takes care of a number of exotic animals. The Agency is responsible for determining if applicants meet the criteria for issuance of a license, permit or other authorization to possess giraffidae under Florida Administrative Code Rules 68A-6.002(3), 68A-6.0011 and 68A-6.022. The Application On January 25, 2017, the Petitioner wrote to the Agency requesting to add giraffidae to her license. The application included two letters of recommendation and a spreadsheet detailing 1,003 hours spent working with a giraffe owned by Rhudy Holly. The information that the Petitioner sent to the Agency is the type of information she and others in her industry typically submit when requesting authorization to handle other animals. In response to a request for additional information, the Petitioner provided clarification of her hours and a copy of her current license. The spreadsheet documented hours spent with the giraffe between October 19, 2015, and January 23, 2017. The documented time averaged six hours per day and showed that the time was spent doing a combination of enrichment, cleaning, husbandry/handling, and feeding. The Petitioner testified that she noted her hours on a daily basis and then entered the hours into an Excel spreadsheet at the end of each week. For the first two weeks, the Petitioner started working with the giraffe under the supervision of its owner, Rhudy Holly. Mr. Holly has had his license to handle giraffes for at least five years and started working with them around 2007. Mr. Holly taught the Petitioner how to take care of the giraffe. He went over the basics until he was comfortable that she understood the giraffe’s behavior and mannerisms and she could safely handle the giraffe. He checked on her progress periodically. He also has an employee who works with the giraffe who was also available to the Petitioner for any questions or help with the giraffe. The Petitioner described a typical day working with the giraffe. In the mornings, she spent about two and a half hours cleaning the feed area, then gathering and loading fresh feed. Cleaning the feed area requires shifting the giraffe out of the barn to his outdoor enclosure. Coaxing the giraffe to leave the barn and go outside can take up to 45 minutes because the giraffe is a shy and skittish animal and cannot be rushed. Once the giraffe is outside, the Petitioner cleans the feed area including his troth and buckets and then refills them. She then coaxes the giraffe to come back into the barn using cut branches (“browses”), romaine lettuce or various fruits. Mr. Holly testified that two and a half hours was typical for these activities when you are learning how to handle and take care of the giraffe. At midday, the Petitioner returned for about two hours to clean the feed area of the barn again and also to pressure wash the barn. Mr. Holly testified that the barn is large and two hours was not an unusual amount of time to spend on these activities. In the afternoon, the Petitioner returned for about one and a half hours to clean and shift the giraffe back into the barn. Each visit included enrichment. Enrichment consisted of spending time interacting with the giraffe, which can include stimulation and entertainment using branches, treats, and even spoons hung on the fence for play. The Petitioner was able to devote an average of six hours per day to taking care of the giraffe because she has a full-time employee who helps take care of the primates and a part-time employee who helps with cage repairs and maintenance. The Denial On May 26, 2017, the Agency issued its Notice of Denial. It stated that because the Petitioner’s current job is full-time, “it does not appear that [she] had time to obtain the required experience hours for giraffidae.” The denial went on to state that the Agency “has reason to believe that six hours per day is an unreasonable amount of time to spend caring for one giraffe and therefore, that these hours have been falsified.” Furthermore, the denial stated that the Petitioner “in a conversation with FWC Investigator Steven McDaniel . . . stated [she] spent about half of the documented experience hours sitting and observing the giraffe.” The denial states that “observation time” cannot be claimed to meet the experience requirements of the rule. The Petitioner and Mr. Holly testified that there were no chairs at the giraffe’s barn and enclosure for “sitting.” In addition, Mr. Holly testified that references to observation was time spent using branches and other treats for enrichment, to learn and understand the giraffe’s “body language and behavior,” and “was also a way for them to sort of build a bond.” In his opinion these activities were part of husbandry, i.e., “everything that goes into taking care of that giraffe.” The Agency did not offer any contrary factual or expert testimony regarding husbandry of giraffes. The Petitioner testified persuasively that she expended the time required to obtain her experience hours, that she did not falsify the hours submitted in her application, and that she did not spend half of her hours just sitting and observing the giraffe. Investigator McDaniels’ testimony showed that the Agency only made a cursory attempt to verify the Petitioner’s hours. The Agency did not contact Mr. Holly, although he wrote a letter of recommendation as part of the Petitioner’s application; and Investigator McDaniel did not actually observe the Petitioner’s interactions with the giraffe.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that FWC enter a final order granting the Petitioner’s request to add giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale. DONE AND ENTERED this 13th day of February, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 13th day of February 2018. COPIES FURNISHED: William John Cook, Esquire Barker and Cook, P.A. Suite 1040 501 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Tyler N. Parks, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Bridget Kelly McDonnell, 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 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 32399-1050 (eServed)
