The Issue Whether Respondent (1) allowed an unscreened employee to be alone with children, and (2) failed to have the proper background screening documentation in its employee files on two occasions; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat. All Aboard is a licensed child care facility (License ID number #C20LE6436) operating at 1918 South East Santa Barbara Place, Cape Coral, Florida. All Aboard has been operating for 25 years. Chemenda Sawyer was a family services counselor with the Department. In this position, Ms. Sawyer conducted inspections of licensed child care facilities, including All Aboard. On November 7, 2019, Ms. Sawyer conducted a routine inspection of the All Aboard facility. As part of the inspection, she reviewed All Aboard's employee files for proper documentation and background screening verification. At this time, Ms. Sawyer determined, All Aboard did not have 3 Exhibit R13 was not accepted into evidence. At the hearing, the parties were looking at different versions of the November 7 inspection report. Respondent was allowed to its version, Exhibit R13, after the hearing, but subject to a ruling on any objections. Respondent emailed Exhibit R13 to DOAH and the Department after the hearing. The Department objected on the grounds of authenticity and because the document had not been disclosed to it prior to the hearing. Due to the late disclosure of the exhibit, the unexplained hand- written comments on the document, and that the document seems to be incomplete (it is missing paragraph 41), the undersigned sustains the objection. appropriate background information for Isabella Escalona, one of its employees. Although Ms. Escalona had been cleared and found "eligible" on November 13, 2018, at another daycare, All Aboard was required to rescreen her upon hire because more than 90 days had elapsed between her last employment and employment with All Aboard in August 2019. Ms. Escalona's employment file did not contain a more recent background check. On the date of the inspection, Linda McClay was serving as the acting director because Anne Marie Walsh, the director, was not available. Ms. Sawyer spoke with Ms. McClay about Ms. Escalona's 90-day gap and the lack of a timely background screening report in her file. According to Ms. Sawyer, Ms. McClay did not know Ms. Escalona's screening status. Ms. Sawyer admitted at the hearing, however, that Ms. McClay was not the person at All Aboard who would have done the employee screenings. Ms. Escalona was not at All Aboard during the November 7 inspection. Therefore, Ms. McClay called Ms. Escalona to come into the daycare while Ms. Sawyer was present. Ms. Escalona gave All Aboard permission to run her fingerprints and conduct a background check. The resulting background screening report (dated November 13, 2019), indicated Ms. Escalona was eligible for providing child care services. In dispute is whether Ms. Escalona was alone with children at All Aboard prior to being re-screened and deemed eligible on November 13, 2019. The Department asserts Ms. Escalona was unscreened and alone with children in violation of the Department's rules based on Ms. Sawyer's investigation and a statement in the inspection report purportedly made by Ms. McClay. All Aboard denies Ms. Escalona was alone with any children prior to November 13, 2019, and specifically denies the statement attributed to Ms. McClay in the inspection report. Ms. Sawyer's conclusion that Ms. Escalona was alone with children was based on her understanding of the configuration of the daycare workers who were present during lunch.4 Based on this information she concluded Ms. Escalona had been alone with children. No one at All Aboard actually confirmed Ms. Escalona had been alone with children and nothing in Ms. Sawyer's testimony definitively establishes this fact. In fact, Ms. Sawyer never saw Ms. Escalona with children. Moreover, the statement Ms. Sawyer attributed to Ms. McClay does not establish Ms. Escalona was alone with children: We hired her [Ms. Escalona] from another school that she stated she was from. Based on the clearinghouse fingerprints, she was eligible for hire. So when we did the transfer, we did not realize she had a 90-day break in child care. So we were not aware she needed the rescreen feature. This statement does not mention staffing or children; rather, it only states that All Aboard was unaware that Ms. Escalona needed to be re- screened after being hired from another daycare. Even if true, this statement implies Ms. Escalona's fingerprints had been submitted for screening and she was deemed eligible – which was ultimately the case. Furthermore, Ms. McClay credibly denies making the statement in the unsigned inspection report.5 All Aboard's position is also consistent with the email dated November 14, 2019, between All Aboard and Ms. Sawyer following the inspection report which explains, "Isabel was not alone[.] 4 It is unclear whether Ms. Sawyer had a conversation with Ms. Walsh, Ms. McClay, or someone else at All Aboard about the staffing arrangements during lunchtime. It is also unclear whether Ms. Sawyer was testifying about the teacher's lunchtime or the children's lunchtime. 5 Although the inspection report was entered into evidence, its finality seems questionable because it is unsigned, unlike the follow-up re-inspection report dated January 28, 2020. No testimony was offered by Ms. Sawyer or any other Department witness regarding how the inspection reports were kept or deemed complete. Ms. Leticia was in the classroom with her. Isabel did have a screening[,but] it was incorrect because it was a transfer and not a re-screen." All Aboard's evidence establishes Ms. Escalona was assigned and scheduled to work with two other teachers in the 2-year-old and 3-year-old room. Ms. Walsh testified Ms. Escalona was always with another teacher in the room. Ms. Walsh also established there were two teachers in the room even during the teacher's lunchtime (the children's naptime). The undersigned finds the Department has not produced sufficient credible evidence to establish Ms. Escalona was alone with children. During the November 7 inspection, Ms. Sawyer also found that All Aboard did not have the proper documentation relating to background checks for two other staff members, Kimberly Harris and Laticia Gonzalez. All Aboard had previously been found to have insufficient documentation relating to the background check and clearance for a staff member, Karen Delgado, during a July 5, 2019, inspection. All three of these staff members were ultimately deemed eligible. All Aboard has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. As noted below, this designation must be terminated upon the final assessment of a Class I violation.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of two Class II violations for failing to have the Level 2 screening information for personnel, and imposing a $50.00 fine. DONE AND ENTERED this 23rd day of October, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 23rd day of October, 2020. COPIES FURNISHED: George Gardner, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Ann Marie Walsh All Aboard Day Care, Inc. 1918 Santa Barbara Place Cape Coral, Florida 33990 (eServed) Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary The Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue presented in this case is whether the Respondents’ family foster home license should be revoked for the reasons set forth in the Department of Children and Family Services' (Department) revocation letter.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for licensing and regulating family foster homes in Florida. Section 409.175, Florida Statutes. At all times relevant hereto, the home of Respondents, Wanda and Howard Barker (Respondents), was licensed by the Department as a family foster home, having been initially licensed in July 1997. Prior to receiving the family foster home license, Respondents were required to and did attend the Department's Model Approach to Partnership in Parenting (MAPP) training. Upon completion of the training course Respondents were required to sign a discipline policy agreement in which they acknowledged that they had been informed of the Department's policy against "hitting a child with any object . . ., spanking a child and any other form of physical discipline." Respondents signed a copy of this agreement. In August 1997, the Department placed D. G. and his brother, J. G., in Respondents' home. D. G. was born on October 21, 1993, and J. G.'s was born on January 7, 1995. At all times relevant to the proceeding, D. G. was four years old and J. G. was three years old. Respondent Wanda Barker, is a registered nurse at Suncoast Child Protection Team, Inc. (Suncoast). A majority of the clients served by Suncoast are children with behavioral problems. As a nurse at Suncoast, Respondent Wanda Barker comes in contact with such children on a regular basis. On August 10, 1998, Respondent Wanda Barker called the Department and reported to D. G.'s assigned children service counselor that she had slapped D. G. the previous day. Respondent Wanda Barker further advised the counselor that as a result of the slap, a mark had appeared on D. G.’s face. Immediately after receiving the call, the counselor notified the appropriate Department personnel and made a report of abuse to the proper authorities. On that same day, August 10, 1998, the Department assigned a child protective investigator to conduct an investigation of the reported incident. On August 10, 1998, both the Department's child protective investigator and an officer with the Pinellas County Police Department interviewed Respondent Wanda Barker at her home. In each of these interviews, Mrs. Barker stated that on the preceding day, August 9, 1998, she slapped D. G. in the face. According to Respondent Wanda Barker, on the day of the incident, D. G. was in a bad mood. At some point that afternoon D. G. began yelling at Respondents' daughter. In an effort to discipline D. G. for yelling, Respondent Wanda Barker told D. G. to go to his room. When he refused, Respondent Wanda Barker took D. G. by the arm and attempted to direct him to the room. While Respondent was holding D. G.'s arm and escorting him to his room, D. G. continued to yell and he also spit in Respondent Wanda Barker's face. Immediately after D. G. spit on Respondent Wanda Barker, she slapped D. G. in the face with an open hand hard enough to leave a mark on his face. The slap was so forceful that it caused a 2-3 inch long bruise that was visible the day after the incident. In the past, Respondent Wanda Barker had sought the assistance of Department staff in addressing discipline problems involving D. G. The Department staff had suggested that Respondents implement various disciplinary methods, including the use of time-out and positive reinforcement. However, at no time did the Department personnel ever recommend that Respondents hit any foster child within their care. On the contrary, the Department's disciplinary guidelines expressly prohibit hitting a child or using any form of corporal punishment. As noted in paragraph 3, Respondents were aware of the Department's policy regarding corporal punishment and had signed a statement acknowledging that they would abide by the policy. On August 10, 1998, after the child protective investigator interviewed Respondent Wanda Barker, he took D. G. to Suncoast for a physical examination. The examination revealed the D. G. had several bruises and abrasions typical of an active child. However, in addition to these bruises and abrasions, D. G. also had a "red/purple" linear bruise about 2 inches long and 1 3/8 inches wide on his face. The impression of the advanced nurse practitioner who examined D. G. was that the bruise on D. G.'s face was the result of a non-accidental injury. Moreover, the bruise on D. G.’s face was consistent with one that could be caused by a slap. It is likely that striking a four-year-old child in the face with an open hand will cause serious injury to the child, particularly to the child's head. In fact, an injury to the head of a child has the potential of causing more serious damage than an injury to any other part of the body. Accordingly, Respondent Wanda Barker's willful and intentional act of forcefully slapping D. G.'s face was one that was likely to result in physical injury to the child. This intentional act materially affected the health or safety of D. G. During the course of the investigation, the Department removed D. G., his brother, and another foster child in Respondents' care from their home. At the conclusion of his investigation, the child protective investigator entered a final report which concluded that "verified bruises/welts abuse" were found and that some indicators of "excess[ive] corporal punishment/abuse" were also found. This Florida Protective Services System Abuse Report was forwarded to the Department's licensing unit. After a review and consideration of the facts contained in the abuse report, the Department revoked the Respondents' family foster home license.
Recommendation Based of all of the foregoing, it is recommended that the final order be issued revoking the Respondents' foster home license. DONE AND ENTERED this 19th day of July, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 19th day of July, 1999. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 R. Michael Robinson, Esquire 701 49th Street, North Saint Petersburg, Florida 33710 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Did Respondent, Florida Fish and Wildlife Conservation Commission (Commission) correctly deny the application of Petitioner, James Hammonds, to renew his Game Farm License (Case No. 19-6307)? Did the Commission correctly deny Mr. Hammonds' application to renew his License to Possess Class III Wildlife for Exhibition or Public Sale (Case No. 19-6326)?
Findings Of Fact The Parties Article IV, Section 9 of the Florida Constitution creates the Commission. It charges the Commission to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and … exercise regulatory and executive powers of the state with respect to marine life, … ." Chapter 379, Florida Statutes (2019), implements the constitutional provision and did so in 2017. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish, Florida. He breeds and sells exotic animals. Mr. Hammonds holds five separate licenses authorizing him to own, breed, sell, and transport wild life. They are a Class III license5 (with a Capuchin Monkey and Spider Monkey endorsement) that authorizes him to exhibit and sell wildlife, a game farm license, a deer herd management license, a United States Department of Agriculture (USDA) transport license, and a USDA license to trade in wildlife animals. The renewal of his Game Farm License and License for Exhibition and Public Sale of Wildlife are the subject of this matter. The Commission refused to renew both. Mr. Hammonds has held these two licenses since 2012. Since obtaining his licenses, Mr. Hammonds has passed all Commission inspections. In addition, the Commission has issued him a game farm license. The 2012 Conviction In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully selling wildlife to an unpermitted entity. The offense was sale of a marmoset at a flea market to an unlicensed purchaser. The record does not provide a citation to the statute violated. Mr. Hammonds was new to the exotic animal trade. He relied upon statements by the purchaser and a Commission representative that the Commission had issued the purchaser a license and that it was en route. The court adjudicated Mr. Hammonds guilty and ordered him to pay a fine and costs totaling $450.00. It also required Mr. Hammonds to pay an additional $50.00 for costs of prosecution. Mr. Hammonds paid the fine and 5 Section 379.3762(2), Florida Statutes (2019), creates three classifications of wildlife types. Class I is wildlife that because of its nature, habit, or status may not be possessed as a pet. Class II is wildlife presenting a real or potential threat to human safety. Class III is all wildlife not included in Classes I and II. costs. Aware of this conviction, the Commission nonetheless routinely approved Mr. Hammonds' license renewal applications and approved his application for a game farm license over the next six years. There is no evidence of or charge of any other violations by Mr. Hammonds until the charges involved in these cases. The Capuchin Monkey In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina Brown. He verified her identity and Nevada residency by looking at her Nevada driver's license. Nevada does not require a license to own exotic animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wildlife.6 Mr. Hammonds had a few conversations with Ms. Brown and her assistant Manny Ortiz about the sale. On October 12, 2017, Mr. Hammonds completed the required USDA form, "Record of Acquisition, Disposition or Transport of Animals," for the Capuchin sale.7 Mr. Hammonds was advised that Jennifer and Michael Brister would pick up the monkey to transport it to Nevada. The Bristers are located in 6 Lack of proof is the hallmark of this case. The Commission relied solely upon the testimony of one witness. The testimony was almost entirely hearsay or descriptions of document contents. This is despite the Commission, according to its witness, having recordings, sworn statements, telephone records, and financial records to support its allegations. The Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla. Stat. (2019). Document descriptions are subject to memory failings, incompleteness, inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat.; See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980). 7 The form does not have a field calling for the buyer's telephone number, or any telephone number for that matter. This is noted because the Commission's witness and Notices emphasize, as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone number on the form where the buyer's telephone number went. The unsupported testimony and insistence on its significance is one of the reasons that the witness' testimony is given little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address for Ms. Brown. It shows a Nevada address. Tennessee. The Bristers held a USDA Class T Carrier permit issued under the federal Animal Welfare Act. Mr. Hammonds obtained proof that the Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to provide this service. Mr. Hammonds was also aware that the Bristers frequently did business in Florida. Other breeders recommended them highly. The Commission did not prove that the Bristers did not hold a Florida permit to own wildlife. The Bristers picked up the monkey, on behalf of Ms. Brown, from Mr. Hammonds in Florida. Other than to receive a telephone call reporting that the monkey had been delivered, Mr. Hammonds had no further contact with or communications about the monkey or Ms. Brown until the Commission's investigator contacted him. There is no admissible, credible, persuasive evidence about what happened to the monkey from this point forward. The Commission offered only uncorroborated hearsay testimony from Mr. O'Horo on this subject. The Rhesus Macaque Monkey Mr. Hammonds also assists people in rescues of exotic animals whose owners have realized they cannot care for them. In 2017, Mr. Hammonds facilitated the transfer of a Rhesus Macaque monkey from one individual to another. A Macaque monkey is a Class II animal. The monkey owner came to Mr. Hammonds' business seeking assistance because he could not handle the monkey. The monkey was in a pet carrier. Mr. Hammonds recalled a woman in Orlando who had contacted him in the past seeking a Macaque. He put the two individuals in touch with each other. The two individuals agreed to the exchange of the monkey. The woman came the same day, met the Macaque owner, and accepted the monkey from him. The owner kept the monkey with him in the carrier until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange. There is no competent, persuasive evidence that Mr. Hammonds ever had ownership, physical possession, control, or custody of the Macaque monkey in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Fish and Wildlife Conservation Commission, issue a final order renewing the Game Farm License and the License to Possess Class III Wildlife for Exhibition or Public Sale of Petitioner, James Hammonds. DONE AND ENTERED this 23rd day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 23rd day of June, 2020. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) David A. Fernandez, Esquire Florida Trial Counsel 4705 26th Street West, Suite A Bradenton, Florida 34207 (eServed) Sean P. Flynn, Esquire Flynn Law, P.A. 2200 Manatee Avenue West Bradenton, Florida 34025 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Whether Respondent employed an individual who was ineligible to work in a child care facility due to his disqualifying criminal history and, if so, what penalty Petitioner should impose.
Findings Of Fact The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. Respondent is a licensed child care facility (License ID number C18SE0109) operating at 295 Oxford Road, Fern Park, Florida. It has been operated by the same owner for 25 years. As a Family Service Counselor, Mr. Ross’s duties include conducting inspections of licensed child care facilities, including Royal. On October 15, 2018, in the afternoon around 2:00 p.m., Mr. Ross arrived at Royal to conduct a renewal inspection. Although his appearance for the inspection was unannounced, Royal had applied to renew its license, which would require an inspection. Mr. Ross’s inspection lasted for approximately three hours. During this time, there were approximately 56 children and ten staff members at the Royal facility. As part of his inspection, Mr. Ross checked Royal’s personnel files for proper employment background screening documentation on all the employees. Because he had inspected Royal previously, he was familiar with some of the staff. While Mr. Ross was in Royal’s administrative office, he saw an unfamiliar adult male outside in the front yard of the campus. Later, the same man walked into the building and past the office. At this point, Mr. Ross asked Royal’s director, Ms. Henein, about the identity of the man. Ms. Henein informed Mr. Ross that the man, Miguel Lespier, was an employee; he was not a parent or visitor. Royal had hired Mr. Lespier to perform maintenance on the facility. Mr. Ross then asked for Mr. Lespier’s employment documentation. Ms. Henein did not provide Mr. Ross with any hiring documentation such as a personnel file, resume, application, tax form, or job description. Instead, Ms. Henein claimed Mr. Lespier had just recently been hired and it was his first day. She then went to a computer and printed out a report on Mr. Lespier from the Department’s Level II background clearinghouse. The Department established that employees of a child care facility when children are present must go through a Level II background screening by the Department’s clearinghouse, pursuant to section 435.04, Florida Statutes. As explained by Mr. Ross, the screening consists of a security background investigation to ensure an applicant or employee does not have a pending charge against him or her, or has not been found guilty of the offenses listed in section 435.04 or similar types of offenses in other jurisdictions. The Department clearinghouse screens for both federal and state offenses in order to determine whether the person is eligible for employment in a child care facility. The content of the printout is disputed. Ms. Henein claimed the printout included a document titled “Public Rap Sheet.” Mr. Ross did not believe he saw the “Public Rap Sheet,” but testified he relied solely on the document titled “CLH BGS – Person Profile.” Ms. Henein’s claim that she provided the “Public Rap Sheet” to Mr. Ross is suspect given that it is dated October 16, 2018, a day after the inspection. Even if Ms. Henein’s testimony is to be believed, the “Public Rap Sheet” does not indicate whether Mr. Lespier is eligible for employment as a child care provider, nor does it state whether he has cleared a Level II background screening. Rather, the “Public Rap Sheet” indicates Mr. Lespier had “no Florida criminal history.” It made no findings as to whether he had a criminal history in other jurisdictions. The “CLH BGS – Person Profile” has Mr. Lespier’s photograph and states: “A criminal record may exist for this applicant.” It also indicates a screening request was made by Royal on October 2, 2018; and that the Department found Mr. Lespier “Not Eligible” in the categories of “DCF General,” “DCF Child Care,” and “DCF Substance Abuse-Adult Only” on October 5, 2018. The “CLH BGS - Person Profile” indicates it was printed on October 15, 2018. Regardless, Ms. Henein admitted Mr. Lespier was not eligible for employment based on the results from the Department clearinghouse. “I pulled it up and the first page it’s the rap page – when I saw, it says eligible on it on the first page. And this was okay. And then when I printed out the other pages it says he was not eligible.” Based on the printout, Mr. Ross asked Ms. Henein to tell Mr. Lespier to leave the facility, which she did. Mr. Ross later learned Royal had terminated Mr. Lespier from employment. Royal never disputed Mr. Lespier was deemed “not eligible,” nor does it deny he was an employee. Rather, it claims, the day of the inspection was Mr. Lespier’s first time at the facility, and that he was not supposed to be at Royal until after operating hours. Moreover, it claims it should not be found guilty of a violation because it terminated him as soon as it was made aware that he was “not eligible.” Ms. Henein’s demeanor at the hearing and the lack of consistency in her testimony make Royal’s version of events unreliable. For example, she was unsure of Mr. Lespier’s name (she thought it was Miguel Lopez). She also claimed Mr. Lespier had never been at the facility prior to October 15, 2018, but later testified that on the date of the inspection, Mr. Lespier walked into the building, walked directly to a locked maintenance closet, and knew where the key was located. The testimony as to whether Mr. Lespier was hired to perform work during operating hours was inconsistent. For example, although Ms. Henein insisted he was not supposed to be at the facility until after hours on the date of the inspection, if Ms. Henein thought Mr. Lespier was eligible to work during operating hours based on the “Public Rap Sheet,” as she testified, she would have had no reason to have him come only after hours. Ms. Henein later admitted Royal had conducted the Level II background screening on Mr. Lespier because it anticipated he would be working during operating hours, just not on the date of the inspection. When asked about Mr. Lespier’s work schedule, at one point in her testimony, Ms. Henein stated that on the date he was hired, she told Mr. Lespier to come to the facility on October 15, 2018, and to arrive after hours. She later testified that she called him the morning of the inspection to report to work that day. Notwithstanding these inconsistencies, the evidence establishes the Level II background results deemed Mr. Lespier “not eligible” to work during operating hours on October 5, 2019; he remained an employee until after the inspection on October 15, 2019; and he was working while children were at the facility. As a result of his inspection, Mr. Ross prepared an inspection report and informed the Department he believed Royal had committed a violation of the background screening requirements by employing a person who was deemed “not eligible” to work during hours when children are present at the facility. The Department then filed the Complaint against Royal. Royal has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. Royal’s witnesses established that if this designation is revoked, it would lose this funding, and it may be forced to close its facility. As noted below, this designation is terminated upon the final assessment of a Class I violation, which is why Respondent seeks to avoid this determination.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of a Class I violation by allowing an employee who was ineligible due to his background screening results to be present at the facility during operating hours when children were present, imposing a $250.00 fine, and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 8th day of April, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 8th day of April, 2019.
The Issue The issues to be determined in this case are whether Petitioner, Sherrie Wentworth (Petitioner), is entitled to approval of her applications to renew her Wildlife Rehabilitation Permit, and her License to Possess Class III Wildlife for Exhibition or Public Sale.
Findings Of Fact The following Findings of Fact are taken from the parties' joint pre-hearing stipulation, and the direct evidence adduced at the hearing. Stipulated Facts Petitioner pled no contest and had adjudication withheld on the following seven captive wildlife violations on April 28, 2015: Possession of Class I Wildlife (a tiger) without a required permit (a violation of section 379.3761, Florida Statutes). Failure to have a required permit for the importation of non-native species of wildlife (a tiger) (a violation of section 379.231(1)). Failure to possess the required financial responsibility for Class I Wildlife (a tiger) (a violation of Florida Administrative Code Rule 68A-6.0024(3)). Maintaining Class I Wildlife (a tiger) on less than five acres (a violation of rule 68A-6.003(2)(c)2.a.). Personal possession of Class II Wildlife (a coyote) without a required permit (a violation of section 379.3762). Unsafe housing of Class II Wildlife (a coyote) (a violation of rule 68A-6.0023(2)). Not having caging of proper size for Class II Wildlife (a coyote) (a violation of rule 68A-6.003(2)(c)4.b.). Two warnings were issued by Respondent to Petitioner on September 20, 2017, for the following two captive wildlife violations: Failure to keep complete accurate records of squirrels entering the facility (a violation of Florida Administrative Code Rule 68A-9.006(4)(b)). Failure to maintain a daily log of animals entering the rehabilitation facility (specifically to log a hawk taken in on September 14, 2017) (a violation of rule 68A-9.006(5)(e)). No additional adjudications or violations were entered against Petitioner between April 29, 2015, and September 19, 2017, that served as a basis for the denial at issue. There were no errors or omissions in the renewal applications at issue and there have been no previous errors or omissions in previous applications submitted by Petitioner that serve as a basis for the denial at issue. There have been no material changes to the criteria used to evaluate the issuance of the two licenses at issue since 2015. Petitioner admits that squirrels were not properly logged into Petitioner's records at the time of the September 20, 2017, warning violations. March 2015 In March 2015, then Captive Wildlife Investigator Steven Grigg responded to an anonymous complaint about a tiger at East Coast. See Resp. Ex. 4. Investigator Grigg testified that prior to that time Petitioner had expressed interest in getting a tiger, and he advised her regarding the necessary steps to obtain a Class I Wildlife permit that would allow her to possess a tiger. He was aware that the Class I Wildlife permit was denied in July 2014. Petitioner acquired the tiger while the Class I Wildlife permit application was pending, and she continued to possess the tiger for several months after being denied. At first, Petitioner denied having a tiger on the premises. The tiger was an approximately 200-pound female for which, in March 2015, Petitioner neither had the Class I Wildlife permit, nor did she have financial responsibility coverage and five acres for exclusive use. In addition, the non-native tiger was imported from outside the state without the necessary importation permit. Investigator Grigg issued Petitioner four separate citations related to unlawful possession of the tiger. See Stipulated Fact No. 1. Possession of a tiger without the necessary license and financial responsibility is a serious safety concern, both for the safety of the public and the person in possession of the animal. Possession of a tiger without having five acres of land on which no other use is taking place is necessary to ensure a buffer between the tiger and the public. East Coast sits on 2.5 acres, and Petitioner leased an adjacent 2.5 acres. See Pet. Ex. 2. Petitioner testified that she thought she had the necessary five acres for possession of the tiger. However, an examination of the lease for the adjacent property shows that there was a home with a couple residing there. Possession of a non-native tiger without the necessary import permit is a potential danger to native species of wildlife. Species outside of Florida may carry diseases not present in Florida wildlife. Bringing these species into the state without the necessary precautions associated with proper permits places native wildlife at risk. In addition, Petitioner kept the tiger at East Coast where injured and sick wildlife were also present. During the investigation of Petitioner's facility in March 2015, Investigator Grigg also discovered that she was keeping a coyote as a pet without a proper permit. Investigator Grigg cited Petitioner for keeping a Class II animal without the proper permit, and for housing the coyote in a cage that was neither the correct size nor the minimum necessary strength. See Stipulated Fact No. 1. A coyote is a Class II animal——the second most dangerous type of animal in Florida. Possession of a coyote without the necessary permit is a serious safety concern for the public. Petitioner's housing of the coyote in caging that was not as strong as the law requires also posed a danger to the public. Also during the March 2015 visit, Investigator Grigg discovered that Petitioner was keeping a red fox——a Class III animal——as a pet without a permit. Investigator Grigg issued a warning to Petitioner although he could have issued her a citation. He also issued Petitioner a warning for housing the fox in caging that was less than the minimum size required. Petitioner testified that she applied to Respondent and was granted a variance for the size of the cage for the red fox. September 2017 On September 20, 2017, Captive Wildlife Investigator J. Scott Wilkenson conducted an unannounced compliance inspection of Petitioner's facility. See Resp. Ex. 7. Petitioner had not entered approximately 60 squirrels into the facility logs as required by her Wildlife Rehabilitation Permit. That permit stated "[c]omplete, accurate written records shall be kept by the permittee . . . ." and "[a]ll permittees shall keep a log on each animal entering the facility for treatment . . . ." Petitioner testified that she entered the squirrels into a daily log, but she did not show proof of such a log to Investigator Wilkenson at the time of the inspection. Volunteer Donna Bloom testified that neither written nor electronic logs were provided to Investigator Wilkenson at the time of the inspection. Investigator Wilkenson issued a warning to Petitioner for the failure to enter the 60 squirrels into her facility logs as required by the law and her permit. At the September 2017 inspection, Investigator Wilkenson also noted that Petitioner did not enter record of a hawk into a daily log as required by Petitioner's Wildlife Rehabilitation Permit in effect at the time. The Wildlife Rehabilitation Permit stated that "[a]ll permittees shall keep a log on each animal entering the facility for treatment. The log shall include a record of the animals' treatment, condition, and disposition." Petitioner offered into evidence a record that purported to be the daily log reflecting the intake of the hawk. See Pet. Ex. 12. Investigator Wilkenson testified that he initially requested these documents but that they were not immediately available at the facility during his on-site inspection. Investigator Wilkenson issued Petitioner a warning for the failure to enter the hawk into a daily log as required by her permit. Petitioner and her recordkeeper, Ms. Bloom, admitted that the manual daily logs were not on-site during the September 20, 2017, inspection because Ms. Bloom took them home to enter into the computer. She testified that Hurricane Irma had impacted electricity at the facility and delayed entry of the manual daily logs into the computer. The Wildlife Rehabilitation Permit recordkeeping requirements are necessary to ensure permittee accountability. Records quickly show investigators what animals are on the permittee's property and their condition. Accurate records ensure that Respondent is able to carry out its constitutional responsibility regarding the care of wildlife for protection of both the public and the animals. Other Aggravating Evidence Investigator Grigg testified that over the years he repeatedly advised and warned Petitioner that it was necessary to follow the captive wildlife laws, including maintaining complete and accurate records. Investigator Grigg's interactions with Petitioner showed him that she would intentionally and with knowledge violate the captive wildlife laws for as long as she could before getting caught. Her actions left him concerned that she is not willing to comply with the captive wildlife laws. In addition, Petitioner has expressed to him that she does not have time to follow the rules and that Respondent's legal requirements impede her ability to care for the animals. Both Investigators Grigg and Wilkenson testified that Petitioner should reduce the number of species she intakes at the facility. Mitigating Evidence Petitioner testified that she opened East Coast in approximately January 2012, giving up her prior profession as a licensed pilot and investing approximately $100,000. Petitioner testified that her facility is the only rehabilitation center open 24 hours a day, seven days a week and year-round for injured animal intake. She testified that she takes animals that other centers will not and will travel from the center in Volusia County to Flagler County to pick up injured animals. She believes her operations provide a needed benefit to the community in Volusia and Flagler Counties. Ms. Lundell testified that the Chase Academy has 52 autistic children. The Academy partners with East Coast in an educational program for the students. Petitioner brings in the animals and educates the students about caring for and handling injured wildlife and wildlife in general. Petitioner testified that in September 2017, there was power loss and damage at East Coast caused by Hurricane Irma. Despite the situation, she testified that East Coast was the only rehabilitation center open and taking calls to pick up injured animals. She testified that she logged animals manually using paper forms, but on the date of Respondent's inspection, the paper forms were in the possession of Ms. Bloom, who was transferring the forms to Petitioner's electronic records system at home where there was power. However, Petitioner was unable to produce the paper forms at the time of Investigator Wilkenson's inspection or at any time thereafter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's applications for renewal of her Wildlife Rehabilitation Permit and License to Possess Class III Wildlife for Exhibition or Public Sale. DONE AND ENTERED this 13th day of June, 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 June, 2018. COPIES FURNISHED: Christopher Block, Esquire Block Law Firm, PLLC Post Office Box 560618 Rockledge, Florida 32956 (eServed) Sherrie Wentworth 2090 Halifax Drive Port Orange, Florida 32128 Tracey Scott Hartman, Esquire Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Brandy Elaine Elliott, Esquire Florida Fish and Wildlife Conservation Commission Farris Bryant Building 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 Whether Petitioner’s application for a license to possess Class II Wildlife for exhibition or public sale should be approved.
Findings Of Fact FWC is the state agency with exclusive jurisdiction to regulate all wild animal life in Florida. See Art. IV, § 9, Fla. Const.1 1 All references to the Florida Constitution, Florida Statutes, and Florida Administrative Code are to current versions that have not substantively changed as applied to the facts in this case. All persons who possess captive wildlife for the purposes of public display or public sale must have a license from FWC. See § 379.3761(1), Fla. Stat. By rule promulgated by FWC, categories of wildlife for which a license is required are broken down into three classes. See Fla. Admin. Code R. 68A- 6.002. Generally, a person cannot possess Class I animals for personal pets unless they came into their possession prior to 1988. Class I animals include 24 different species generally considered extremely dangerous, and include wildlife such as chimpanzees, gorillas, orangutans, baboons, leopards, jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and Komodo dragons. See Fla. Admin. Code R. 68A-6.002(1)(a). Class II animals include 38 different species that may, with a proper license, be possessed as personal pets or for commercial purposes. Class II animals have the potential to cause harm but not to the extent of Class I animals and include wildlife such as Howler monkeys, Patas monkeys, Vervet monkeys, Macaques, bobcats, wolves, wolverines, honey badgers, and alligators. See Fla. Admin Code R. 68A-6.002(1)(b). Class III animals include wildlife not listed as Class I or II. See Fla. Admin. Code R. 68A-6.002(1)(c). The application at issue in this case is Petitioner’s application, ID 75226, to possess, exhibit, or sell Class II wildlife. Petitioner’s application, dated September 9, 2019, identifies Macaques, Patas, Vervet, Grivet, and Green monkeys as species that he does not currently possess, put plans to possess. By letter to Petitioner dated February 5, 2020 (Denial Letter), FWC advised Petitioner that his application was being denied because of prior violations of law and FWC rules regulating wildlife. In particular, the Denial Letter states that on June 19, 2017, FWC investigator Rick Brown found Petitioner in possession of a Vervet monkey without a license. The Denial Letter explains that, on that same date, Petitioner told investigator Brown that Petitioner had sold a lemur, two squirrel monkeys, and an artic fox earlier in that year, but was unable to provide documents for those sales as required by FWC rule. According to the Denial Letter, Petitioner was issued misdemeanor citations for those violations and, on July 21, 2017, Petitioner received adjudication other than acquittal or dismissal for those violations. The Denial Letter also states that, during an investigation of Petitioner at a new location on February 13, 2018, conducted by FWC investigator Steve McDaniel, it was discovered that Petitioner had sold two ring-tail lemurs to an unlicensed individual on December 15, 2017, and that at the time of the sale Petitioner’s license was expired and was not otherwise valid for sales from Petitioner’s new location. The Denial Letter further states that as a result, Petitioner was issued a citation for selling the lemurs without a valid license and a written warning for selling to an unlicensed individual. According to the Denial Letter, on May 22, 2018, Petitioner received adjudication other than acquittal or dismissal for the citation. The Denial Letter concludes: Pursuant to Rule 68-1.010 [Florida Administrative Code], and due to facts stated above, your application has been denied. We are processing your application fee for a refund, and you should receive it within 21 days. During the hearing for this case, the factual basis set forth in the Denial Letter was demonstrated by a preponderance of the evidence provided by the testimony of FWC investigators Brown and McDaniel, the documentary evidence, and Petitioner’s own testimony. Indeed, the evidence showed that during an investigation conducted by investigator Brown on June 19, 2017, Petitioner was found to be in possession of a Class II Vervet monkey without a proper license. Petitioner has never had a Class II license. It was also demonstrated that, at the time of that investigation, Petitioner was unable to produce sales records for a lemur, two squirrel monkeys, and an arctic fox that he had sold earlier that year. While Petitioner provided some documents at the hearing purporting to be records related to those sales, they were insufficient to overcome the preponderance of the evidence in this case. At the hearing, Petitioner admitted that he paid the fine from the citation issued against him for possession of the Vervet and lack of sales records. In addition, it was shown by a preponderance of the evidence that on December 15, 2017, Petitioner sold two ringtail lemurs to an unlicensed individual under a Class III license that was expired and that, prior to its expiration, had only been valid at his previous location, instead of the new location where the sale had taken place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order denying Petitioner Gregory Nelson’s application for a license to possess Class II wildlife for exhibition or public sale. DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2020. COPIES FURNISHED: Gregory Nelson 23033 Brouwerton Road Howey-in-the-Hills, Florida 34737 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
