The Issue The issues concern an Administrative Complaint drawn by Petitioner against Respondent calling for the revocation of his permit to display and sell captive animals. See Section 372.921, Florida Statutes, and Rule 39-5.004, Florida Administrative Code.
Findings Of Fact For a number of years, Respondent has been permitted in Florida to keep captive wild animals for public display and sale in accordance with Section 372.921, Florida Statutes. Those animals were Class I and II animals as defined in Section 372.922, Florida Statutes, as well as unclassified animals. By species this included cougars, lions, tigers, jaguars, leopards, baboons, macaque monkeys, sheep and goats. Now, based upon the Administrative Complaint of June 18, 1991, as amended, Petitioner would revoke the existing permit issued under Section 372.921, Florida Statutes, for the period July 1, 1991 through June 30, 1992. The basis for the Administrative Complaint pertains to alleged findings of guilt for 14 charges of the inappropriate confinement of animals without sufficient food dating from March 26, 1991 and four other instances of violation of captive wildlife laws which Petitioner says Respondent is answerable for beginning in February 1978. Under the circumstances and in accordance with review criteria set in Rule 39.5004, Florida Administrative Code, speaking to the propriety of revocation, Petitioner seeks revocation. In the case of State of Florida v. Bobby Franklin Steele, No. 77-288MM, Sumter County, Florida, Respondent entered a plea of nolo contendere to maintaining wildlife in an unsafe manner and was adjudicated guilty, fined in the amount of $50 and placed on probation for 45 days. This plea was made on February 7, 1978. On that same date in Case No. 77-287MM in the same court, Respondent pled nolo contendere to failure to meet minimum requirements for captive wildlife for which he was found guilty, fined $50 and placed on probation for 45 days. These were wildlife violations within the meaning of Chapter 372, Florida Statutes, and its attendant rules of the Game and Fresh Water Fish Commission. The facts involved with those convictions pertain to Respondent's maintaining wildlife in his son's automotive mechanic and maintenance shop in cages build at one end of the building. The animals in question were cougars, tigers and monkeys. One cougar was leashed to an attachment to the wall, pipe or board, and was sitting on top of a table out of its cage when the violation was noted. This cougar in its location was considered to be unsafe for housing it in a potentially public place. The cougar is a Classs II animal. When shown an abstract from the court files of Palm Beach County, Florida, pertaining to Case No. 79-1461MM A06, unlawful confinement in cage w/ failure to maintain minimum specification, violation date February 18, 1979, and Case No. 79-1459MM AO6, charge and disposition, same as the previous case, Respondent testified that he paid a $50 fine for these violations, and that testimony is credited. He identifies that the animals in question were trained animals that he worked with on a daily basis, including "Tom Tom", a cougar, a Giben ape and a zebra. These violations pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. In the case of State of Florida v. Bobby Franklin Steele, Sr., Case No. 78-325MM, Sumter County, Florida, on February 27, 1979, Respondent pled nolo contendere to maintaining wildlife in unsanitary and unsafe conditions and was adjudged guilty and paid a fine of $49. This violation pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. In the case of State of Florida v. Bobby Franklin Steele, Case No. 87- 000917-MMA, Seminole County, Florida, Respondent pled nolo contendere, on July 6, 1987, to violation of transportation requirements for wildlife and illegal possession of wildlife in captivity. He was adjudicated guilty, given a year of supervised probation and made to pay $75 in costs. These violations related to Chapter 372, Florida Statutes, and attendant rules of the Florida Game and Fresh Water Fish Commission. Factually, Respondent was stopped while transporting a male African lion in the passenger seat of an open convertible. The lion is a Class I animal. The lion was, according to Respondent, in the automobile because a photographer from an international magazine was doing an article to include a promotional photographic shoot. The lion had a harness with a leash which was entwined through the seatbelt of the car. Such an arrangement created a potential that the animal might escape and endanger the public if he chewed through the leash and seatbelt. In 1987 in a court proceeding in Marion County, Florida, a guilty verdict was rendered against Respondent for the illegal transfer of a lion to an unlicensed person. The violation in Marion County pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. On March 26, 1991, in the case of State of Florida v. Bobby F. Steele, Case No. 90-2292MMGF, Lake County, Florida, Respondent was convicted of 14 counts of maintaining animals without sufficient food, fined $500 and placed on one year probation. As it pertains to that series of violations in March 1991 in Lake County, Florida, the animals involved in the 14 count conviction were 9 cougars, 3 bobcats, 1 lion and 1 tiger. By observations of Captain Barry Cook, an employee for Petitioner who has wildlife experience, the animals in question were malnourished to the extent that their ribs and other bones were protruding. An inspection of Respondent's premises where the animals were being maintained revealed that there was not sufficient food for the animals to the extent of not having enough food for one animal for one day. At the time that these observations were made about the animals' condition, Respondent told Captain Cook that Respondent was doing the best he could and it was an economic management related problem that caused the lack of food. Respondent did not mention that he had food available in another location. This latter statement made by Respondent at hearing and his contention that the animals were not malnourished do not suffice. Whether food was available in another location or not fails to excuse the condition of the animals which Captain Cook, in his experience, which is credited, observed to be a condition in the animals that was only exceeded in its gravity by one other case in Captain Cook's experience. The animals in question were removed by the United States Department of Agriculture, Animal and Health Inspection Service, who were present while Captain Cook inspected the Respondent's facility in the Summer of 1990.
Recommendation Based upon the facts found and conclusions of law reached, it is hereby RECOMMENDED that a Final Order be entered which revokes the Respondent's permit to keep wild animals in captivity for purposes of display or sale. See Section 372.921, Florida Statutes. DONE and ENTERED this 12th day of November, 1991, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed facts of the parties. Petitioner's facts: 1-12, 13 except last sentence--subordinate to facts found. That sentence is rejected as hearsay, not for purposes of corroboration. 14--subordinate to facts found. 15--rejected in that no official action was taken in Pennsylvania such that a conclusion could be reached that a violation had occurred in another jurisdiction. 16--rejected as an aggravating circumstance. 17--rejected in its discussion of borderline compliance or bare compliance. Any form of compliance is acceptable. It is only the unacceptable conduct which is punishable. 18--rejected as it attempts to create some inference concerning Respondent's conduct. Respondent's facts: 1-4 and the first sentence of paragraph 5--are subordinate to facts found. The second sentence is rejected in its attempt to describe mitigation. 6--The discussion in the first sentence does not excuse Respondent's conduct. The latter discussion concerning the situation in Pennsylvania is not relevant for reasons described and discussed about proposed facts by the Petitioner. 7--The fact that an appeal is undertaken does not prohibit the use of that conviction in deciding the outcome here. 8--Revocation is a severe choice; however, it is warranted on this occasion. COPIES FURNISHED: James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600 Don Gleason, Esquire 307 Northwest 3rd Street Ocala, FL 32670 Colonel Robert M. Brantly Executive Director Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600 James Antista General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600
The Issue Whether Respondent violated Sections 231.2615(1)(c), 231.2615(1)(e), and 231.2615(2), Florida Statutes (2000), and, if so, what discipline should be imposed.
Findings Of Fact Grantham holds a Florida Educator's Certificate No. 651850, covering the area of biology, which was valid through June 30, 1999. Grantham applied for a renewal of that certificate, but the application expired on June 11, 2001. Grantham was employed as a teacher at Lake Placid High School in the Highlands County School District during the 1995-1996 school year. He is currently employed at Avon Park Correctional Institution as a correctional officer. On November 25, 1997, Grantham was stopped by William D. Scott, a wildlife officer, in connection with a complaint of trespassing. Officer Scott asked for Grantham's hunting license, and Grantham produced a hunting license that was no longer valid. Officer Scott charged Grantham with trespassing and issued him a citation for not having a valid hunting license. Grantham believed that he had bought a hunting license for the 1997 hunting season when he had gone to Wal-Mart to purchase some ammunition a few weeks before he was issued the citation. When he discovered that he had not purchased a hunting license, he returned to Wal-Mart. After discussing the matter with the Wal-Mart salesperson, the salesperson back-dated a hunting license for Grantham. Grantham took the back-dated license to the Clerk of the Court's Office and gave it to a clerk there. The clerk dropped the charge of not having a valid hunting license because Grantham produced a hunting license which was dated before the date that Officer Scott issued the citation. Learning that the charge had been dropped by the clerk, Officer Scott began to investigate whether Grantham's license had been issued prior to the date of the citation. Officer Scott visited the Wal-Mart where the hunting license had been sold and learned that the salesperson had back-dated the license. The salesperson was later dismissed for her actions. When Grantham signed the hunting license, he knew that it was back-dated and that the information concerning the date of issuance was incorrect. Grantham was charged with making a false statement to obtain a hunting license. On February 23, 1998, Grantham pled nolo contendre to the charge of making a false statement to obtain a hunting license. He was adjudicated guilty of the charge and ordered to pay a fine of $150 and court costs of $145.50, which he paid in full. On September 11, 2000, Grantham and his wife, Brandy Grantham, were at his mother-in-law's house with his two nephews, who were six and two years old at the time. Grantham was roughhousing with the oldest child in the living room, where his mother-in-law, Sarah Gilbreath, was present. At the final hearing Mrs. Gilbreath could not recall what happened between Grantham and the oldest child. However, she gave a sworn statement to Deputy Darren Hood on September 18, 2000, in which she described what occurred between Grantham and the child: [Grantham] grabbed [the child] up playfully to begin with ah . . . scooped him up ah . . . I guess around the waist and flipped him over his lap with his um . . . face . . . face up with his feet up . . . up in the air over [Grantham's] lap and his hangin' down toward the floor. And he started pullin' the hairs on [the child's] legs. And it was funny for a . . . for a little bit. Oh, probably a minute. It was . . . it was funny. [The child] was gigglin' but then [Grantham] started really yanking the hairs and I'm sittin' in the recliner tryin' to coax [the child] out of his lap, but [Grantham] wasn't letting him go and then it started hurting. Well, [Grantham] wasn't . . . wasn't laugin' or smilin', he . . . he was concentrating on pullin' them hairs on . . . [the child's] legs. And he was . . . he started pullin' 'em pretty hard, yankin' 'em pretty hard and [the child] started asking [Grantham] to stop, he was hurtin' him. And repeatedly asked him to stop and he didn't stop so [the child] started cryin'. And he told [the child], he says, I'll pull all the hairs out of your legs and see how that feels. . . .[T]hen so [the child] was, you know, about to panic, he was . . . he was cryin' for him to stop, he was hurtin' him. * * * He [Grantham] says it was funny. I mean he . . . he wasn't laughin' or . . . he was not havin' fun with the kid, he was intent on inflictin' some pain at that point. . . . And [Grantham], at one point, well he . . . he jumped up and grabbed [the child] by the shoulders and . . . on the outside of the shoulders, and walked . . . started across the room to the loveseat again and probably threw [the child] two or three feet to the . . . to the couch, to the loveseat, in the corner of it then he took a step forward and grabbed [the child] on the . . . by the face. * * * [The child] wasn't doin' anything to provoke him at that time, he . . . was gettin' upset, which [the child] knows enough to know to be afraid of [Grantham] most of the time. Um, we . . . we've discussed it that he needs to . . . stay away from [Grantham], we have discussed this, that he needs to stay away from him because [Grantham] gets too rough and he was not provoking anything at that time when [Grantham] grabbed him up and threw him on the other couch. At the final hearing, Mrs. Gilbreath did not deny that the statement she had given Deputy Hood was not true and accurate. Based on the demeanor of the witness, it is clear that the incident between Grantham and his six-year-old nephew took place as described by Mrs. Gilbreath in her sworn statement to Deputy Hood on September 18, 2000. The younger child, who had been taking a nap in the rear of the house, came into the living room and jumped on Grantham. About the same time, Mrs. Grantham came out of the bathroom with a towel on and started to shout at Grantham, who told her that it was none of her business and to stay out of it. Grantham came toward his wife and pushed her down the hall into the bathroom. Later the same day, Mrs. Grantham called the Sheriff's Office and made a complaint against her husband. A Deputy Sheriff came to her mother's house and took a voluntary written statement from Mrs. Grantham, in which she described what happened in the bathroom as follows: Richard slaped [sic] me on the [right] side of my head. Then he grabbed my hair and stached [sic] it trying to put me on the floor. My neck popped. Then he kept threating [sic] to shut up or he will punch me in the mouth. At the final hearing, Mrs. Grantham recanted her written statement and testified that Grantham "never laid a hand on me," but that she grabbed her husband by the hair of his head, slapped him, scratched him, and grabbed his hands. She stated that she lied to the Deputy Sheriff because she was angry at her husband for leaving the house while they were having the argument concerning the incident with her nephew. Given Mrs. Grantham's demeanor at the final hearing, more likely than not there was some grabbing and slapping by both Mr. and Mrs. Grantham. However, given that Mrs. Grantham recanted her written statement to the Deputy Sheriff, the Petitioner has not proved by clear and convincing evidence that Mr. Grantham committed a battery on his wife.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Richard C. Grantham, Jr., is guilty of violating Sections 231.2615(1)(c), 231.2615(1)(e), and 231.2615(2), Florida Statutes (2000), and permanently denying him a teaching certificate. DONE AND ENTERED this 26th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 26th day of September, 2002. COPIES FURNISHED: Richard C. Grantham, Jr. 3892 State Road 64, East Zolfo Springs, Florida 33890 Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Daniel Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
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 for determination in this case is whether Petitioner is entitled to a Captive Wildlife Game Farm License from the Florida Fish and Wildlife Conservation Commission (“FWC”).
Findings Of Fact The Parties Petitioner, Carla SantAngelo, is a natural person who resides at 5260 Bluff Hammock Road, Lorida, Highlands County, Florida. FWC was created pursuant to Article IV, section 9 of the Florida Constitution, to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” FWC has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. The Application Petitioner’s application lists the location of the proposed game farm as 5260 Bluff Hammock Road, Lorida, which is also her residential address. Petitioner proposed to rear, possess, exhibit, and sell fallow deer, sika deer, axis deer and blackbuck antelope, all of which are designated by the FWC as Class II Wildlife. Florida Administrative Code Rule 68A-6.0022(5) establishes the criteria for obtaining a permit to possess Class II wildlife. It provides in pertinent part: Age Requirement: Applicants to possess Class I or Class II wildlife shall be at least 18 years of age. Applicants shall not have been convicted of any violation of captive wildlife regulations or venomous reptile or reptile of concern regulations involving unsafe housing of wildlife or that could potentially endanger the public; any violation involving the illegal commercialization of wildlife; any violation involving cruelty to animals; or any violation involving importation of wildlife within three (3) years of the date of application. * * * (d) Experience and examination requirements for Class II permits: 1. Applicants may qualify for a permit for Class II wildlife by documenting one year of experience (to consist of no less than 1000 hours) as defined in subparagraphs 68A- 6.0022(5)(c)1.-4., F.A.C. It was stipulated by the parties that Petitioner satisfied the requirements in rule 68A-6.0022(5). In its letter of denial, the reason given by FWC for denying Petitioner’s application was “FWC has reason to believe you were operating the illegal game farm with your husband.” Petitioner’s husband, Daniel SantAngelo, is the president of Okeechobee Outfitters. He was charged and convicted of operating a game farm at 5260 Bluff Hammock Road without a license. The date of his conviction is not in the record, but is likely sometime in 2015. Okeechobee Outfitters was not charged or convicted of operating a game farm without a license. Petitioner was formerly the vice president, director, secretary, and treasurer of Okeechobee Outfitters. Her corporate functions included disbursing checks on behalf of the corporation, acting as secretary, cooking, answering phone calls, answering e-mails, cleaning, paying electric bills, and booking hunts. FWC asserted that Petitioner’s position and activities with the corporation were tantamount to her personal possession of Class II wildlife without a permit. Daniel SantAngelo owns the property located at 5260 Bluff Hammock Road. Okeechobee Outfitters owns property at 5229 Bluff Hammock Road, Highlands County, Florida, and a site located at Brighton Seminole Indian Reservation, Okeechobee County, Florida. Petitioner has no ownership interest in any property owned by Okeechobee Outfitters. Petitioner is not a shareholder of Okeechobee Outfitters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Fish and Wildlife Conservation Commission issue the Captive Wildlife Game Farm License to Petitioner. DONE AND ENTERED this 30th day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2016. COPIES FURNISHED: Raymond M. Masciarella II, Esquire Raymond Masciarella II, P.A. Summit Building, Suite 340 840 U.S. Highway 1 North Palm Beach, Florida 33408 (eServed) Tracey Scott Hartman, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eugene Nichols “Nick” Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Is an Agency that settles a challenge to its denial of a license by agreeing to issue the license a "non-prevailing adverse party," as defined by section 120.595(1)(e)3., Florida Statutes (2019)? 1
Findings Of Fact The Commission denied an application by Mr. Lightsey for issuance of a Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended Notice), signed by Major Rob Beaton, Division of Law Enforcement, advised Mr. Lightsey that the Commission intended to deny his application. The Amended Notice included this dispositive paragraph: "Due to the facts stated above, pursuant to 68-1.010, F.A.C, your application for a HPL has been denied. We are processing your application fee for a refund, and you should receive it within 21 days." The Amended Notice also advised Mr. Lightsey of his right to request a hearing to challenge the intended decision. Mr. Lightsey challenged the proposed denial and requested a formal administrative hearing. Mr. Lightsey brought his challenge under section 120.57(1), which creates a right to a formal hearing to dispute a proposed agency action. The Commission referred the matter to the Division for assignment of an Administrative Law Judge and conduct of the hearing. The parties settled the licensing dispute before the hearing. Their settlement agreement provided for the Commission issuing each of the denied licenses. The parties' agreement also provided for severing the attorney's fees and costs claim, leaving it pending for the Division to resolve if the parties could not agree. The order closing the file in this case severed the fees and costs claim and reserved jurisdiction over it. The parties could not agree. The division re-opened the fees case as DOAH Case No. 19-5210F. This proceeding followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that The Florida Fish and Wildlife Conservation Commission enter its Final Order denying Petitioner's Motion for Fees and Costs under section 120.595, Florida Statutes. DONE AND ENTERED this 31st day of March, 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 31st day of March, 2020. COPIES FURNISHED: Bert J. Harris, Esquire Swaine, Harris & Wohl, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Sharmin Royette Hibbert, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (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 The issue in this proceeding concerns whether Leonard Mattox, the Petitioner, or his business, Sasquatch Park, is qualified under the provisions of Rule 39-6.0022(5)(c)1, Florida Administrative Code, to engage in the husbandry of a cougar (felis concolor), in terms of the experience requirement of that rule.
Findings Of Fact The Petitioner, Leonard M. Mattox, doing business as Sasquatch Park, operates a captive wildlife facility, open to the public, in Okaloosa County, Florida, near the City of Crestview. The facility is open to the public between the hours of 9:30 a.m. and 4:00 p.m., and the Petitioner holds a Class II permit authorizing possession of macaques, a primate. Class II wildlife species are animals which have the potential of posing some degree of danger to human beings. The permits for possession of such animals are issued by the Commission. The Petitioner's Class II permit authorizing the possession of a macaque was issued on August 19, 1988. On April 19, 1989, the Petitioner applied to the Commission to upgrade that permit to include cougars (felis concolor), also an animal on the Class II wildlife species list, delineated in Rule 39-6.002, Florida Administrative Code. Rule 39-6.0011, Florida Administrative Code, then required that an applicant for a Class II permit must possess three-years minimum experience in the husbandry of the species for which the permit was sought. Subsequent to that application, the Commission changed the experience requirement by enacting Rule 39- 6.0022(5)(c)1 on July 1, 1990. That provision defines experience requirement as being no less than one year of substantial, practical experience and consisting of not less than 1,000 hours in the care, feeding, and handling of the species for which the permit is sought. Petitioner concedes that he does not possess the required 12 months or 1,000 hours of experience. In fact, he testified that although he has extensive experience in the care and husbandry of numerous exotic wildlife species, including macaques, a Class II species, he has no formal experience in the husbandry of cougars. Rather, the Petitioner is relying on the experience of Mr. Bobby Spencer and Ms. Pauline Redding, both of whom have owned and possessed and cared for cougars for approximately five years. The cougar that the Petitioner seeks to own and exhibit in his zoo is "Micah", presently owned by Mr. Spencer. Mr. Spencer wishes to donate Micah to the Petitioner's zoo in order to give the cougar a safe, comfortable, appropriate home because he can longer keep the cougar. His grandson is allergic to the cougar's fur and exhibits a violent reaction to being in the proximity of the cougar. The Petitioner seeks to establish that his facility is appropriately qualified to maintain and care for the cougar within the requirements of the above rule by retaining both Mr. Spencer and Ms. Redding as "curators". It is undisputed that both of those individuals have more than the required experience in the husbandry of cougars. The Petitioner has proposed, with the agreement of both Mr. Spencer and Ms. Redding, that they will make routine, frequent and unannounced visits to the cougar's enclosure to ensure that the cougar is being appropriately cared for and that the public viewing the cougar will not be at risk. Both Mr. Spencer and Ms. Redding will be available on an "on-call" basis at any hour of the day or night, in addition to making routine unannounced visits to the enclosure. Both Mr. Spencer and Ms. Redding possess Class II permits from the Commission to possess cougars as personal pets. They keep their animals at Commission- approved facilities at their residences, although they do not exhibit them to the general public. Mr. Spencer resides approximately 27 miles from the Petitioner's facility, and Ms. Redding resides approximately five miles away and can be at the Petitioner's facility within approximately five minutes. Both are employed full-time, however. Mr. Spencer is a real estate salesman, and Ms. Redding is a full-time receptionist and veterinarian's assistant employed with a veterinarian in Ft. Walton Beach, some 27 miles from the Petitioner's facility, during normal working hours. In addition to being experienced in the husbandry of a cougar, Ms. Redding is experienced in the care of many types of animals in her duties as a veterinarian's assistant, which include functioning as an anesthesiologist. The testimony of Captain Jerry Thomas of the Game and Fresh Water Fish Commission established that the Commission's two primary concerns are the safety of the public and the humane treatment of the animal in situations where a permit is sought for the possession and exhibition of a Class II wildlife species, such as a cougar. There is no dispute that the Sasquatch Facility exceeds the Commission's requirements for housing, possessing and exhibiting the cougar. In fact, the enclosure built specifically for this cougar exceeds the more stringent provisions in the Commission's rules for housing African lions. The facility was designed to comport with the rule requirements for housing a breeding pair of African lions. There is a personnel "stand off fence" to protect the public so that no member of the public can approach the cage. The cougar's enclosure itself is an eight-foot high, nine-gauge, chain-link wire enclosure with nine-gauge chain-link wire covering the top of it to prevent the cougar from scaling his enclosure. There are also drop gates installed in the facility to manage a cougar and isolate him, as needed, from one side or other of his enclosure and to prevent involuntary release. In the extremely unlikely event of involuntary release of the cougar, there is an eight-foot perimeter fence around the zoo's facility. This particular cougar, who is substantially overweight, would likely be unable to scale it. If for some reason he was able to scale that enclosure, the rural, wooded character of the area of the Sasquatch facility, which is sparsely populated, would minimize the likelihood of any risk to humans before the zoo personnel could tranquilize the cougar, apprehend him, and return him to the facility. The Petitioner is equipped with the proper equipment and trained personnel, who are capable of tranquilizing the cougar and returning him to the facility. Tranquilizer guns with the appropriate chemical dosage, as prescribed by a veterinarian for an animal such as a cougar, are maintained in readiness at the facility at all times. Thus, the Commission's interest in the safety of the public is well-served by the facility and the personnel it maintains to possess, exhibit and care for animals such as cougars. Concerning the issue of the humane treatment of the animal, the facility is equipped with an automatic watering device and a staff veterinarian, Dr. Hill, whose office and residence is in nearby Crestview, is on call on a 24-hour basis. In addition to Mr. Mattox and his wife, who live on the premises and are present every day, the Sasquatch facility has two other full-time employees during each regular working day. Additionally, there are volunteers assisting almost daily. Mr. Mattox himself has a Class I wildlife possession license and previously has been approved for a Class II permit authorizing the possession and exhibition of macaques at the facility. Although the individual care requirements for the two animals are different, macaques are also Class II wildlife species considered to pose a potential threat to humans. There is no question that with the experienced personnel maintained by the Sasquatch facility, the advice and oversight of Mr. Spencer and Ms. Redding, both of whom have years of experience in the husbandry of cougars, the required feeding, medical attention, watering, and general care of the cougar will be well-accomplished. In carrying out the intent of the rule, as it perceives it, to insure the safety of the public and the humane treatment of the animal involved, the Commission has interpreted the experience provision of the subject rule to mean that where the applicant for the permit represents an entity or business, as is involved herein, which will house the animal in question, the applicant himself or herself need not possess the required experience, so long as personnel employed by the entity housing the animal will have the requisite experience provided for in the rule. Since Mr. Mattox himself does not have the requisite experience, it must be determined whether personnel he proposes to have care for the cougar will have adequate experience in cougar husbandry to ensure that the Commission's two concerns, public safety and humane treatment of the cougar, are appropriately served. In this connection, the Commission in its testimony at hearing through its agency representative, espoused the policy view or interpretation of the experience rule to the effect that persons with requisite experience should be on duty at the subject facility on a "full-time basis" or at least four hours per day. The language of the rule, however, does not provide that such personnel should be on duty on a full-time basis nor does it define what "full-time" means in any event. It does not provide a time-period standard delineating when experienced personnel should be on hand. Thus, starting from the premise that, as the Commission concedes, the applicant himself need not have the requisite experience, so long as personnel are available to a facility who do have the requisite experience, an examination must be made of the evidence and findings accordingly made concerning how much care on a typical day is required for a cougar kept in such a facility as Sasquatch Park, in order to satisfy the Commission's espoused concern regarding the animal's welfare. That examination will, in turn, demonstrate whether the Commission's espoused policy interpretation of the above rule experience requirement, in terms of a minimum of four hours per day presence by experienced personnel on the premises, is a reasonable interpretation and application of that rule, since the plain language of the rule itself does not require full-time presence of experienced personnel nor any other such time standard. The applicant has established an employment relationship with Mr. Spencer, the present owner of the cougar, whereby he will be the curator for the cougar when it is moved to Sasquatch Park. Mr. Spencer is licensed by the Commission to possess and own the cougar as a pet. He has been the owner and curator of this particular cougar for approximately five years. Mr. Spencer has agreed to provide his services on a 24-hour, on- call basis. For the first month or two, he would be present at the facility on almost a daily basis in order to make sure that the cougar becomes accustomed to his new owner and surroundings and does not become distressed at the absence of Mr. Spencer, to whom he has become emotionally attached. Mr. Spencer established, through his unrefuted testimony, that the actual time needed to be spent with the cougar is a maximum of 30 minutes per day, with an average of 15 minutes per day being appropriate. Any more time spent with the cougar, in direct contact, does not benefit the cougar; and it, indeed, might be detrimental to his emotional health. Mr. Spencer has agreed to be present at the facility on an almost daily basis in order to minister to the needs of the cougar for food, water, companionship, and to insure that Mr. Mattox becomes skilled at caring for the cougar. Mr. Spencer cares very much for the cougar and is keenly concerned in seeing that the cougar has a new home which is most beneficial to his welfare. He has investigated several possibilities and determined that Sasquatch Park is the best place for his cougar. As curator for the cougar, he wants the cougar close enough to his residence so that he can help care for him; and he has testified that he will continue to do so until he feels comfortable in gradually turning over the cougar's care to Mr. Mattox. There is no dispute that Mr. Spencer has more than ample experience to comply with the mandate of the above-referenced rule. Pauline Redding is also licensed to engage in the husbandry of a cougar as a personal pet. She is the owner and curator of the brother of the cougar in question. She houses her cougar in an enclosure in the yard of her home. She typically leaves home during the day to go to her job, and the cougar is left unattended for that entire period of time every working day. That arrangement comports with the requirements of the rule under which Ms. Redding is licensed to maintain the cougar as a personal pet. There is not a licensed person on the premises with her cougar "full-time" nor any other required time period. Ms. Redding, too, is well qualified and experienced in terms of the requirements of the rule, and in a practical sense, to adequately care for the cougar. She only lives five minutes away from the Sasquatch facility and is able and committed to assist Sasquatch at all times in insuring proper care for the cougar. Her employment experience also provides additional qualifications for her to engage in the husbandry of a cougar. She is employed as a veterinarian's assistant, technician and anesthesiologist. There is no dispute that both these persons are well qualified in terms of experience in directly caring for cougars to render them "qualified curators" of the cougar in question if he is placed at the Sasquatch Park facility. The testimony of Mr. Spencer, as well as that of Ms. Redding and to some extent that of Captain Thomas, establishes that cougars do not require the full-time presence of personnel experienced in their care or even four hours per day. In fact, the unrefuted testimony indicates that 15 to 30 minutes per day is adequate and that cougars only feed once or, at most, twice a day and get along very well if fed once per day, such as in the evening. Predators, such as cougars, typically feed, by nature, in the early morning or in the late afternoon and are lethargic during the warmer parts of the day. It is critical that an adequate supply of water be maintained at all times, and Sasquatch Park has an automatic watering device available for the cougar. Although its present personnel do not have direct experience in caring for cougars, they are well able to recognize when an animal is in need of medical attention and a veterinarian, Dr. Hill, is on 24-hour call, as the staff veterinarian for the facility. In summary, the unrefuted evidence establishes that cougars, such as Micah, do not need experienced personnel on the premises in their presence for even four hours per day or substantially less than that. It has been established that in order to meet the Commission's concern regarding the animal's welfare, experienced personnel need only be readily available on an on-call basis to insure that the cougar is properly cared for and that during the initial few days or weeks of the cougar's tenure at the Sasquatch Park facility, experienced personnel, such as Ms. Redding or Mr. Spencer, have daily contact with the cougar to insure that he is adequately cared for and that the facility, its owner and employees are being adequately trained in the care of the animal. In fact, it has been demonstrated that any additional contact with the cougar is not necessary to its welfare and, indeed, might be detrimental to it. Both Mr. Spencer and Ms. Redding have agreed to this arrangement, and it is practically capable of being fulfilled, especially with regard to Ms. Redding, because she only lives five minutes away from the facility and can visit the cougar and oversee its welfare on almost a daily basis. It has been demonstrated that, with the curatorship arrangements made by the applicant with Ms. Redding and Mr. Spencer, coupled with the applicant's own experience in maintaining and possessing many types of exotic and potentially dangerous animals, the Commission's interest in insuring the health and welfare of the cougar in question will be served by placing it at Sasquatch Park and that these arrangements most closely correlate with the evidence of record which establishes the manner and type of care a cougar needs on a daily basis when confined in such a facility. In this regard, somewhat parenthetically, it is noteworthy that the Commission's representative, in testifying in support of a four-hour-per-day standard for having experienced cougar husbandry personnel on the premises, also testified that that four hours per day for one year really equated to what was required, in his view, to train Mr. Mattox and establish him as the possessor of 1,000 hours minimum experience in cougar husbandry at the end of a year. Thus, that espoused "standard" actually is not really functionally related to the cougar's welfare or the interest of public safety. Finally, in assessing the Commission's stated concerns, it should be considered whether the cougar's present situation is preferable to that offered by Sasquatch Park. In Mr. Spencer's home, the cougar lives in a residence in the middle of a city, with many other people residing around it. Sasquatch, on the other hand, offers a rural, wooded setting which is sparsely populated, which equates to greater public safety in the unlikely event the cougar should escape. In Mr. Spencer's home, no one has been present for at least 9-1/2 hours per day, during the years he has kept the cougar. At Sasquatch, Mr. and Ms. Mattox live on the premises and are present with their employees everyday. Although Mr. Spencer and Ms. Redding were licensed under a different rule which concerns the keeping of Class II animals as personal pets, in assessing the level of care supposed to be provided the cougar, it is noteworthy that they obtained their licenses with absolutely no experience or training in the care of cougars. Mr. Mattox, on the other hand, has a Class I license; and the Commission has previously approved him for a Class II permit to keep a macaque, also an animal posing a potential threat to humans. Mr. Mattox has had years of experience in the husbandry of many exotic species. His practical qualifications, versus those of Mr. Spencer and Ms. Redding, are certainly substantial. Further, Sasquatch Park is a modern facility; and all cages and animal areas meet or exceed Commission requirements in terms of the animals' welfare and the safety of the viewing public. There is a staff veterinarian, who is on call on a 24- hour-a-day basis. With the arrangement with Ms. Redding, there will also be a curator available for the cougar, who has training in the veterinary care of animals, in addition to Dr. Hill. It has clearly been demonstrated that the Commission's interest in terms of public safety and the welfare of the animal in question will be well-served by placing the cougar at Sasquatch Park. It is, thus, found that the Commission's interpretation of the rule and the manner it seeks to apply that interpretation to the instant factual situation, established by the unrefuted evidence, is not reasonably related to the public safety or to the type, level and manner of care which is required for the cougar's well being, which two considerations are, as shown by the Commission's own witness, the primary intent of the subject experience rule. That being the case, the espoused interpretation by the Commission's witness of what is meant by the experience requirement in the rule is not reasonably related to the proven intent and purpose of the rule.
Recommendation Having considered the foregoing findings of fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is therefore RECOMMENDED: That a Final Order be entered by the Respondent granting the application of the Petitioner, Leonard M. Mattox, for a Class II wildlife permit authorizing the possession and display of cougars at his Sasquatch Park facility. DONE and ENTERED this 13th day of November, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1990. APPENDIX Petitioner's Proposed Findings of Fact The Petitioner filed no separately stated findings of fact but rather, filed a memorandum containing factual and legal argument inseparably intertwined. Thus, no separately stated discreet findings of fact are available to be specifically ruled upon, although the subject matter raised in each of the paragraphs of the Petitioner's memorandum have been dealt with and addressed in this recommended order. Respondent's Proposed Findings of Fact Accepted Accepted Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as immaterial, inasmuch as the subject rule was amended during the pendency of this proceeding. See Turro v. DHRS, et al., 458 So.2d 345 (Fla. 1st DA 1984). Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter and in fact immaterial in light of the Commission's own interpretation of the meaning of the experience requirement of the subject rule. Accepted, but the first sentence is immaterial. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted, but the first sentence is immaterial and the proposed finding of fact is subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted only insofar as it demonstrates what the agency's interpretation of the subject experience requirement in the rule consists of, but otherwise subordinate to the Hearing Officer's findings of fact on the subject matter. COPIES FURNISHED: Colonel Robert H. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James Antista, Esq. General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 John C. Harrison, Esquire 12 Old Ferry Road Shalimar, FL 32579 James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600
