The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Whether the Florida Fish and Wildlife Conservation Commission (FWC) should grant or deny the application for a license to Possess Class I and/or Class II Wildlife for Exhibition or Public Sale submitted to FWC by Melanie Boynes and Tarzan's Big Cat Sanctuary, Inc. (Ms. Boynes or, collectively, Petitioners).
Findings Of Fact FWC is the agency of the State of Florida that regulates the possession, sale, and display of captive wildlife in Florida. Petitioners applied for the subject license by filing Application ID No. 2038 with FWC on or about April 20, 2012.1/ Petitioners want to operate the proposed facility as a sanctuary for big cats. The operation of the proposed facility as a sanctuary would not require commercial activity, and it would not require a license from the United States Department of Agriculture (USDA). Ms. Boynes was licensed by FWC from September 25, 2006, to October 2, 2011, to possess Class I and Class II wildlife "for exhibition or public sale" at the prior facility. Ms. Boynes represented to FWC on the 2006 license application, and on the subsequent annual renewal applications (the prior FWC applications), that the intended commercial activity for the prior facility was a "permanent exhibition." That operation required commercial activity at the facility, and it required a license from the USDA. Ms. Boynes applied for the requisite USDA license, but she was denied that license by the USDA. On her USDA application, she represented that she intended to keep the big cats at the prior facility as pets. Ms. Boynes's representations to FWC that she intended to possess the big cats as a "permanent exhibit" on the prior FWC applications were misrepresentations of her intentions. As will be discussed below, there was no evidence that the big cats were being possessed at the prior facility as anything other than pets. Ms. Boynes applied for a renewal of her FWC license prior to its expiration on October 2, 2011. The FWC denied that application for renewal.2/ On March 1, 2012, Ms. Boynes incorporated Tarzan's Big Cat Sanctuary, Inc. (the corporate Petitioner) as a not-for- profit corporation for purposes that included submitting the subject application. Ms. Boynes is president of the corporate Petitioner. The premises consist of caging for big cats, an open- air area, and perimeter fencing on a five-acre tract. While the prior facility has been operated under the name of Tarzan's Big Cat Sanctuary for many years, the business was not incorporated until March 1, 2012. Mr. Sipek is a former actor who once starred in Tarzan movies. Mr. Sipek held a FWC license for the prior facility and possessed big cats there for many years before Ms. Boynes became involved with the prior facility. Mr. Sipek's FWC license authorized him to possess Class I and Class II wildlife for the same purposes as Ms. Boynes's license. His license also required commercial activity at the prior facility, and it required a license from USDA. Mr. Sipek has not held a FWC license since May 5, 2011. There was no evidence that he ever held a USDA license. Ms. Boynes first became associated with the prior facility as a volunteer in 2006. Ms. Boynes has been residing on the premises with Mr. Sipek since December 8, 2007. Mr. Sipek was listed as vice president of the corporation when it was first incorporated. Mr. Sipek has not been an officer or director of the corporate Petitioner since October 25, 2012. Until February 27, 2012, three big cats were housed at the prior facility. The prior facility had a four-and-a-half year-old tiger named Lepa, a seven-year-old tiger named Bo, and a 17 year-old leopard named Oko. On February 27, 2012, Mr. Sipek was arrested and FWC removed Lepa, Bo, and Oko from the facility. FWC delivered all three cats to Vernon Yates, who has provided them sanctuary. All three cats were healthy when Mr. Yates received them. Ms. Boynes intends to have all three of those animals returned to the proposed facility if the subject application is granted and Petitioners become licensed to operate the proposed facility as a sanctuary. Shannon Wiyda and Jon Garzaniti are investigators employed by FWC. As part of their duties, they conduct inspections of animals in caged security enclosures to ensure humane treatment and sanitary conditions for animals and to make sure the public is kept safe. Inv. Wiyda conducted an inspection of the prior facility in September 2007. Ms. Boynes was present during that inspection. Numerous violations were detected during that inspection. Those violations included gaps in caging, rust on caging, and vegetation on fencing. Gaps in caging can enable an animal to escape and can enable visitors to the facility to get too close to an animal. Rust on caging can cause the cage to lose its structural integrity and could cause parts of the cage to break off, leaving a sharp object that could injure an animal. Vegetation on the fences compromised the structural integrity of the fencing, and provided a means for the animals to climb the fencing. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes received verbal warnings of the violations and a copy of the written report generated by Inv. Wiyda. Inv. Wiyda conducted an inspection of the prior facility in October 2008. Ms. Boynes was present during that inspection. Some deficiencies present in the 2007 inspection had been corrected, but others had not. There were still caging and fencing deficiencies. Gaps in the caging and rust were still present. The wire used to connect fencing or caging was not of sufficient gauge (strength). Vegetation was overgrowing the perimeter fence. Structures had been placed too close to the perimeter fence. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes received verbal warnings of the violations and a copy of the written report generated by Inv. Wiyda. Inv. Wiyda conducted an inspection of the prior facility in March 2009. Ms. Boynes was present during that inspection. Numerous caging and fencing deficiencies were detected during that inspection. Wire less than the required nine-gauge was used to connect pieces of the cages and fencing. Surface rust was observed. One of the animal enclosures did not have a roof, which is required to prevent animals from escaping. Structures were placed too close to the perimeter fencing. Vegetation was growing over parts of the perimeter fence. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Inv. Wiyda conducted an inspection of the prior facility in May of 2010. Ms. Boynes was present during that inspection. The licenses held by Mr. Sipek and Ms. Boynes were to possess the animals for sale or exhibition. Neither activity was occurring at the prior facility. A USDA exhibitor's license was required for the facility. Neither Mr. Sipek nor Ms. Boynes had the required USDA license. Numerous caging and fencing deficiencies were detected. The deficiencies observed during the 2010 inspection were similar to the deficiencies observed in the previous three inspections. Rust was observed on many surfaces of the cages and fencing. Required roofing was non-existent. Structures were placed next to fencing and vegetation overgrowth was present on the fencing. Structurally unsound enclosures, including cages, were discovered. Improper strength wire was used to hold cages together. The condition of the facility was poor. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. On or about August 24, 2010, Mrs. Boynes and Mr. Sipek applied for the requisite USDA exhibitor's license. Megan Adams, an Animal Care Inspector employed by the USDA, inspected the prior facility on August 10, 2010. Her observations and findings were similar to those of the FWC investigators. Ms. Adams observed unsanitary conditions and caging and fencing deficiencies. Ms. Adams also noted that all three of the animals at the facility had been declawed. The USDA has prohibited declawing of big cats since before 2006 and the American Veterinary Medical Association condemns the practice. By letter dated September 16, 2010, the USDA denied the application submitted by Ms. Boynes and Mr. Sipek. FWC does not have a rule that prohibits the declawing of big cats. Mr. Sipek had had Oko and Bo declawed before Ms. Boynes became involved with the prior facility. In 2008, Lepa arrived at the prior facility. Lepa was considered to be Ms. Boynes's animal. When Inv. Wiyda inspected the prior facility in 2008, she told Ms. Boynes not to declaw Lepa, and gave her a copy of the USDA policy against declawing big cats. Ms. Boynes subsequently had Lepa declawed by a veterinarian. At the formal hearing, Ms. Boynes testified, credibly, that she would not declaw any other big cats should FWC grant the subject application. Inv. Garzaniti conducted an inspection of the prior facility in August 2011. Ms. Boynes was present during that inspection. Mr. Sipek was not licensed at the time of the inspection. Ms. Boynes's license was active at the time of the inspection. Numerous caging and fencing deficiencies were detected. There were gaps in the caging, which compromised the integrity of the enclosures. Caging and fencing was mended together and piecemealed with bailing wire of less gauge than required. Rust was observed on surfaces of cages. One area of a cage had several pieces of rebar extending down from the ceiling of the cage with no brace on the bottom to support the rebar. One of the pieces of rebar broke off when light pressure was applied. Vegetative overgrowth was present on perimeter fencing, which negatively impacted the integrity of the fencing. The perimeter fencing was structurally unsound. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes possessed no USDA license as required. There was no evidence that the animals were being possessed for any purpose other than as pets. Invs. Wiyda and Garzaniti conducted an inspection of the prior facility on February 27, 2012. Ms. Boynes was present during the inspection. Numerous caging and fencing deficiencies continued to exist. The cages and the perimeter fencing were not structurally sound. Structures were placed too close to the perimeter fencing. Vegetative overgrowth was observed on the perimeter fencing. Sanitation violations were also observed. Standing water was discovered in cages. Proper drainage for surface water runoff was not provided. Standing water is unsanitary and can contain bacteria and feces, which can make an animal sick. There were multiple piles of old feces throughout the enclosure. Fecal waste is required to be removed daily because it is unsanitary and contains bacteria that can make an animal sick. Unclean water dishes with yellow and brown slime were discovered. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. The unsanitary conditions constituted a potential danger to the animals. Ms. Boynes did not have the required USDA license. There was no evidence that the animals were being possessed for any purpose other than as pets. On February 27, 2012, FWC arrested Mr. Sipek and removed the animals from the prior facility. Ms. Boynes was emailed and sent a copy of the report that was generated by the investigators. As to each FWC inspection, Ms. Boynes received verbal warnings as to the violations during and following each inspection, but she was not issued a written citation by FWC or the USDA for any of the deficiencies set forth above. As a licensee, Ms. Boynes was required to assure that the caging complied with FWC's rules setting caging, fencing, and sanitation standards. As alleged in FWC's denial letter, Ms. Boynes violated those rules.3/ On July 9, 2012, Ms. Boynes became solely responsible for the operations and maintenance of the facility. Since that date, Ms. Boynes has built three new pens and new perimeter fence. Inv. Garzaniti inspected the re-built facility on July 9, 2012. The re-built facility met all applicable standards, and Inv. Garzaniti recommended that the subject application be granted and the license issued.4/ FWC's denial letter stated as a ground for denying the subject application the alleged fact that Paul Fisher had been bitten by Oko (the leopard) at the prior facility on December 30, 2010. While FWC received a report of that incident, there was insufficient proof to establish that the incident occurred. FWC's denial letter also states as a ground for denying the application alleged deficiencies in the diet provided the animals at the prior facility. There was insufficient evidence to establish that the diet provided for the animals was insufficient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny the subject application for licensure filed by Melanie Boynes and Tarzan's Big Cat Sanctuary, Inc. DONE AND ENTERED this 29th day of March, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 29th day of March, 2013.
The Issue Whether Resolution No. P64-96 of the Monroe County Planning Commission should be affirmed, reversed or modified?
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 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 The issues are whether Respondent is guilty of employment discrimination, based on age or marital status, in violation of the Florida Civil Rights Act of 1992 and, if so, what relief is appropriate.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner was born in 1940 or 1941. He has a high school education, and he has obtained some credits toward an associate’s degree in computer science/business management. Petitioner is married, but his children are grown and no longer living at home. Petitioner worked for 30 years with a large manufacturer, which reduced its workforce and terminated him. Shortly prior to moving to Florida in 1993, Petitioner worked for two and one-half years with the fish and game division of the Enfield, Connecticut, police department, enforcing fishing and hunting laws and dealing with animals. In April 1994, Petitioner applied with Respondent for the position of animal control officer. In May 1994, Keith Larson, Director of Animal Control, telephoned Petitioner and scheduled an interview for the following week. During this telephone call, Mr. Larson and Petitioner briefly discussed his animal control experience with the Enfield police department. Mr. Larson said that Petitioner sounded like a good candidate, and Petitioner felt that he had a good chance to get the job. During the interview, which took place on May 27, 1994, Mr. Larson asked Petitioner, “Do you really think you can get through the animal control course at this time of your life?” Petitioner replied in the affirmative. Mr. Larson also asked Respondent if he were married and if his wife would mind him working the “crazy hours” required of an animal control officer because wives sometimes caused problems. Petitioner assured him that his wife would present no problems. At the time, Petitioner has been working as a Wells Fargo security officer at the courthouse. A few days after his interview, he learned from a deputy that Mr. Larson had hired someone else for the animal control position. Shortly after learning that Mr. Larson had not chosen him for the job, Petitioner complained to Ms. Linda Skelton, presently Respondent’s Human Resources Manager and then one of Respondent’s Employee Relations Supervisors. Petitioner complained about the questions that Mr. Larson had asked during the interview. Ms. Skelton conducted an investigation, which consisted entirely of talking to Mr. Larson, who denied making any of the statements. Ms. Skelton then informed Petitioner that she had found no evidence of discrimination, but referred him to the Florida Commission on Human Relations and Equal Employment Opportunity Commission, if he wished to pursue the matter further. She encouraged Petitioner to reapply for an animal control position and promised a fair interview if he did. Choosing not to pursue legal relief, Petitioner reapplied for an animal control position four more times in the year following the unsuccessful initial application. On the first three reapplications, Mr. Larson declined to offer Petitioner an interview. On the fourth reapplication, Mr. Larson granted Petitioner another interview. On Petitioner’s fourth reapplication, Mr. Larson, in consultation with Ms. Skelton, arranged for a panel of County employees to interview candidates. The panel consisted of two firefighters, who were not familiar with the duties of animal control officers, and an animal control officer. Mr. Larson did not speak to any of the three panelists about their deliberations, so as to isolate himself from the selection process. However, the panelists knew Mr. Larson had formed the panel due to Petitioner’s earlier complaint about age and marital discrimination. The panel conducted its interviews in May 1995. The panelists were not particularly well-prepared to conduct interviews. The most prominent shortcoming emerged when one of the firefighters asked Petitioner’s brother, who was also interviewing for the animal control position, who was older-- Petitioner or his brother. The panelists did not take notes during the interviews. They administered a short written test to each applicant; during Petitioner’s test, one panelist continued to talk to him. Petitioner took offense at this distraction, as well as the waste of time spent on a discussion of Petitioner’s martial arts background. Given the simplicity of the test, the distraction was harmless, as was the discussion of martial arts. The deficiencies of the panel are attributable to the unsuitability of the panelists for their task; this was the first time that the panelists had interviewed applicants for an animal control position. After considering all of the applicants, the panelists recommended that Mr. Larson not hire any of the applicants, but instead try to obtain new applicants for the opening. Mr. Larson accepted this recommendation and readvertised the position. Petitioner did not apply for this or any subsequent animal control opening. After conducting another round of interviews, the panelists recommended that Mr. Larson hire Catherine Katzman. Mr. Larson did so. This was the last time that Mr. Larson used the panel to interview applicants for an animal control position. Petitioner’s career and education have had almost nothing to do with animal control. Although the record is not particularly well-developed on these points, it does not appear that much of the animal control officer’s duties in Charlotte County involve undomesticated animals, and it does not appear that much of Petitioner’s duties in the fish and game division of the Enfield police department involved domesticated animals. The job description for the animal control position calls for someone to apprehend animals and enforce the County’s animal control ordinances. The educational and physical demands are modest: graduation from a high school or vocational school with “some animal contact work experience” and “moderate physical activity.” The job description notes that the position requires knowledge of animal control procedures, relevant local law, and the geography of Charlotte County, as well as an ability to work with the public. Petitioner is qualified for each animal control position that Mr. Larson sought to fill. However, Petitioner’s qualifications are minimal and easily bettered by other applicants. Following the May 1994 interview, Mr. Larson hired William Pahl, who was in his 20s, married, and the father of at least two young children. Mr. Pahl had already earned his animal control certificate and had worked for two years as an animal control officer in Lee County. Mr. Pahl was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was Charles Owensby, who had a high school degree and was in his 40s. Mr. Owensby had already earned his animal control certificate and had worked for three years as an animal control officer in Lee County, ten months as a veterinary technician, and 15 years as a dog trainer. Mr. Owensby was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was James Wilcox. Mr. Wilcox had no prior experience in animal control. He was in his mid 20s. Mr. Larson based his decision to hire Mr. Wilcox on his ability to mold him into an ideal animal control officer. The record does not reveal if a factor other than youth contributed to Mr. Larson’s determination that Mr. Wilcox could be molded into the ideal animal control officer. Mr. Wilcox had only a high school education and his work experience was unimpressive, consisting of grocery store clerk (five months), outdoor furniture assembler (11 months), short-order cook and handyman at restaurant (five months), lawn maintenance (seven months), and--most recently--handyman at a resort (10 months). Again, the record is not particularly well- developed, but Mr. Larson promoted Mr. Wilcox to Animal Control Supervisor at some point, presumably due to Mr. Wilcox’s good work. Mr. Wilcox left the Animal Control Department after two or three years to join the Charlotte County Fire Department. Mr. Wilcox was not as qualified as Petitioner for the animal control position. Petitioner had some tangentially relevant experience; Mr. Wilcox had none. Petitioner had an impressive employment history; Mr. Wilcox did not. The next person whom Mr. Larson hired, rather than Petitioner, was Cheryl Vanande. She had earned a college degree, but had no relevant experience. Ms. Vanande had worked as an energy conservation specialist for a power company (four and one- half years), yellow pages salesperson (nearly two years), and automobile sales and leasing representative (one and one-half years). While serving in the naval reserves, Ms. Vanande had supervised up to 68 persons. Also, her annual earnings had consistently been about $24,000. Ms. Vanande was married and in her 30s. Despite the lack of direct animal control experience, Ms. Vanande was probably more qualified than Petitioner. The last person whom Mr. Larson hired, instead of Petitioner, was Catherine Katzman, whom he hired after the second round of interviews in June 1995. Ms. Katzman had worked for two years at an animal shelter in Charlotte County, where her responsibilities included care for fractious animals. She had also worked for a couple of months as a veterinary technician. Ms. Katzman had earned an associate arts degree and credits in a veterinary medicine major. Ms. Katzman was in her mid 20s and married. She was considerably more qualified than Petitioner. Except for the hiring of Mr. Wilcox, the decisions to employ persons other than Petitioner were entirely justified, based upon qualifications. Ms. Vanande is a closer case, but her college degree and supervisory experience probably rendered her a superior applicant over Petitioner. In each of these cases, then, Mr. Larson’s testimony that his employment decisions were not motivated by unlawful discriminatory intent is supported by the fact that he hired persons more qualified than Petitioner. The decision to employ Mr. Wilcox, rather than Petitioner, cannot be justified based on superior qualifications. On paper, Petitioner was more qualified than Mr. Wilcox for the animal control position. If Mr. Larson had reasons, besides relative youth, to hire Mr. Wilcox, he did not articulate them at the hearing. Mr. Larson’s initial interview with Petitioner is crucial in this case. Displaying an interest in Petitioner’s age and marital status, Mr. Larson revealed the role of these criteria in his hiring decisions. This does not mean that his preferences concerning age and marital status necessarily influenced subsequent decisions. In fact, the record does not establish that any of Mr. Larson’s employment decisions in this case were influenced by marital status. As for age, the superior qualifications of all the other applicants, besides Mr. Wilcox, signifies that it was unnecessary for Mr. Larson, in hiring these four applicants, to reach the issue of age. Each of these four applicants was better qualified than Petitioner to fill the animal control position, so Mr. Larson presumably ended his considerations at this point. But Mr. Wilcox was not as qualified as Petitioner to fill the animal control position. The reasonable inference is that, in hiring Mr. Wilcox over Petitioner, Mr. Larson gave effect to the discriminatory concerns, earlier expressed during the initial interview, concerning Petitioner’s age. Specifically, solely on the basis of age, Mr. Larson doubted that Petitioner was sufficiently adaptable to acquire the skills needed for the animal control position; solely on the basis of age, Mr. Larson expected that Mr. Wilcox was sufficiently adaptable--moldable--to acquire the skills for the animal control position. Mr. Wilcox’s application bears a date of receipt of February 16, 1995. It is safe to assume that Respondent received Mr. Wilcox’s application prior to the date on which Mr. Larson hired Mr. Wilcox. Petitioner filed his Charge of Discrimination on November 21, 1995. Clearly, then, Petitioner filed his Charge of Discrimination within one year of the sole act of discrimination proved in this case. Although Petitioner relies upon evidence dating from earlier than November 21, 1994, to establish an act of age discrimination, the act of age discrimination did not take place until early 1995. Petitioner’s proof of emotional suffering is too vague and uncertain to permit an award. This claim is rejected. Petitioner’s proof of lost earnings and associated benefits is more definite, but somewhat unclear. Petitioner would have initially earned $8.12 hourly as an animal control officer, which required 40 hours weekly. Six years have elapsed since the approximate date of hire of Mr. Wilcox. The record suggests that Petitioner would have retired in 2002. It is not entirely clear when Petitioner has held various jobs since March 1, 1995. At one point, Petitioner worked for Wells Fargo at $5.15 hourly. Then, he worked at the Charlotte County courthouse at $5.75 hourly and later earned $7.00 hourly. At some point, Petitioner worked at the clerk’s office at the courthouse and earned $6.50 hourly, but was employed only 30 hours weekly. The parties should try to settle upon a specific amount representing the value of lost earnings and associated benefits, when comparing the animal control job to Petitioner’s actual employment, from March 1, 1995 (or, if available, the date of hire of Mr. Wilcox) through his age of retirement, as noted in Petitioner’s proposed recommended order, in 2002. Likewise, the parties should try to settle upon attorneys’ fees and costs. If unable to reach a settlement, the parties should request the Florida Commission on Human Relations to remand the case again to the Division of Administrative Hearings for the purpose of conducting an evidentiary hearing on the issue of the precise relief to which Petitioner is entitled.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations: Enter a final order dismissing Petitioner’s Petition for Relief on the ground that it is time-barred. If the Commission elects not to dismiss the Petition for Relief, enter a final order determining that Petitioner has proved that Respondent committed a single act of age discrimination in the decision to hire Mr. Wilcox on or about March 1, 1995, as an animal control officer. If the Commission enters a final order determining that Respondent has committed the act of discrimination described in the preceding paragraph, enter a final order giving the parties a reasonable period of time to settle Petitioner’s claims, other than emotional suffering, and, if they fail to do so, enter an order remanding the case to the Division of Administrative Hearings to conduct an evidentiary hearing solely on the issue of the relief to which Petitioner is entitled. DONE AND ENTERED this 13th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 13th day of March, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy L. Sergent Lancaster & Eure, P.A. 711 North Washington Boulevard Sarasota, Florida 34236 Brendan Bradley Deputy County Attorney Charlotte County Administration Center 18500 Murdock Circle Port Charlotte, Florida 33948-1094
The Issue The issue to be determined in this case is whether the Petitioner, Kimberly Wysong, is entitled to approval of her application to add authorization for the family giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale.
Findings Of Fact The Parties The Petitioner currently holds a license to handle certain Class I and/or Class II animals, e.g., Class I baboons and Class II primates. She is currently employed by Jerry Holly, and along with other full-time and part-time employees, takes care of a number of exotic animals. The Agency is responsible for determining if applicants meet the criteria for issuance of a license, permit or other authorization to possess giraffidae under Florida Administrative Code Rules 68A-6.002(3), 68A-6.0011 and 68A-6.022. The Application On January 25, 2017, the Petitioner wrote to the Agency requesting to add giraffidae to her license. The application included two letters of recommendation and a spreadsheet detailing 1,003 hours spent working with a giraffe owned by Rhudy Holly. The information that the Petitioner sent to the Agency is the type of information she and others in her industry typically submit when requesting authorization to handle other animals. In response to a request for additional information, the Petitioner provided clarification of her hours and a copy of her current license. The spreadsheet documented hours spent with the giraffe between October 19, 2015, and January 23, 2017. The documented time averaged six hours per day and showed that the time was spent doing a combination of enrichment, cleaning, husbandry/handling, and feeding. The Petitioner testified that she noted her hours on a daily basis and then entered the hours into an Excel spreadsheet at the end of each week. For the first two weeks, the Petitioner started working with the giraffe under the supervision of its owner, Rhudy Holly. Mr. Holly has had his license to handle giraffes for at least five years and started working with them around 2007. Mr. Holly taught the Petitioner how to take care of the giraffe. He went over the basics until he was comfortable that she understood the giraffe’s behavior and mannerisms and she could safely handle the giraffe. He checked on her progress periodically. He also has an employee who works with the giraffe who was also available to the Petitioner for any questions or help with the giraffe. The Petitioner described a typical day working with the giraffe. In the mornings, she spent about two and a half hours cleaning the feed area, then gathering and loading fresh feed. Cleaning the feed area requires shifting the giraffe out of the barn to his outdoor enclosure. Coaxing the giraffe to leave the barn and go outside can take up to 45 minutes because the giraffe is a shy and skittish animal and cannot be rushed. Once the giraffe is outside, the Petitioner cleans the feed area including his troth and buckets and then refills them. She then coaxes the giraffe to come back into the barn using cut branches (“browses”), romaine lettuce or various fruits. Mr. Holly testified that two and a half hours was typical for these activities when you are learning how to handle and take care of the giraffe. At midday, the Petitioner returned for about two hours to clean the feed area of the barn again and also to pressure wash the barn. Mr. Holly testified that the barn is large and two hours was not an unusual amount of time to spend on these activities. In the afternoon, the Petitioner returned for about one and a half hours to clean and shift the giraffe back into the barn. Each visit included enrichment. Enrichment consisted of spending time interacting with the giraffe, which can include stimulation and entertainment using branches, treats, and even spoons hung on the fence for play. The Petitioner was able to devote an average of six hours per day to taking care of the giraffe because she has a full-time employee who helps take care of the primates and a part-time employee who helps with cage repairs and maintenance. The Denial On May 26, 2017, the Agency issued its Notice of Denial. It stated that because the Petitioner’s current job is full-time, “it does not appear that [she] had time to obtain the required experience hours for giraffidae.” The denial went on to state that the Agency “has reason to believe that six hours per day is an unreasonable amount of time to spend caring for one giraffe and therefore, that these hours have been falsified.” Furthermore, the denial stated that the Petitioner “in a conversation with FWC Investigator Steven McDaniel . . . stated [she] spent about half of the documented experience hours sitting and observing the giraffe.” The denial states that “observation time” cannot be claimed to meet the experience requirements of the rule. The Petitioner and Mr. Holly testified that there were no chairs at the giraffe’s barn and enclosure for “sitting.” In addition, Mr. Holly testified that references to observation was time spent using branches and other treats for enrichment, to learn and understand the giraffe’s “body language and behavior,” and “was also a way for them to sort of build a bond.” In his opinion these activities were part of husbandry, i.e., “everything that goes into taking care of that giraffe.” The Agency did not offer any contrary factual or expert testimony regarding husbandry of giraffes. The Petitioner testified persuasively that she expended the time required to obtain her experience hours, that she did not falsify the hours submitted in her application, and that she did not spend half of her hours just sitting and observing the giraffe. Investigator McDaniels’ testimony showed that the Agency only made a cursory attempt to verify the Petitioner’s hours. The Agency did not contact Mr. Holly, although he wrote a letter of recommendation as part of the Petitioner’s application; and Investigator McDaniel did not actually observe the Petitioner’s interactions with the giraffe.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that FWC enter a final order granting the Petitioner’s request to add giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale. DONE AND ENTERED this 13th day of February, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February 2018. COPIES FURNISHED: William John Cook, Esquire Barker and Cook, P.A. Suite 1040 501 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Tyler N. Parks, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eugene Nichols "Nick" Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
