The Issue The issue to determine in this matter is whether Petitioner James Jablon’s applications for a Personal Pet No Cost Permit (PPNC) and Class III Exhibition and/or Sale License (ESC) should be denied for the reason stated in Respondent Florida Fish and Wildlife Conservation Commission’s (FWC) Notice of Denial, dated May 24, 2019.
Findings Of Fact Mr. Jablon testified that he previously owned a male lion named Ed, and possessed the appropriate Class I Wildlife License. Ed then went to live at another wildlife facility near Gainesville. Mr. Jablon testified that in July 2015, Judith Watson, who owned a wildlife sanctuary near Spring Hill, Florida, contacted him and asked him to live in a guest house at her wildlife sanctuary and inquired whether he could relocate Ed to her wildlife sanctuary. Mr. Jablon stated that Ms. Watson had a female lion named Savannah, and it was his opinion that lions should live in a “group system” and not alone. Mr. Jablon testified that he then took steps to reacquire Ed from the Gainesville facility. On October 19, 2015, Mr. Jablon applied for a Class I and/or Class II Wildlife for Exhibition or Public Sale (ESA), in the name of Wildlife Rehabilitation of Hernando, in which he sought a license to possess, inter alia, a lion. The State of Florida classifies lions (panthera leo) as Class I wildlife. See Fla. Admin. Code R. 68A-6.002(1)(a)12. Among the numerous requirements for an ESA are requirements for the facilities for the housing of Class I wildlife, “[i]n order to assure public safety.” Fla. Admin. Code 68A-6.003(2). For example, Florida Administrative Code Rule 68A-6.003(2)(c)1. requires: Property ownership/lease: The facility shall be constructed on property owned or leased by the applicant. If leased[,] the lease shall be for a term of not less than one (1) year from date of application. Such lease shall be subject to initial and annual review and approval by the commission as a condition of said lease. If the property is leased, the lessee must have exclusive rights to occupy, possess and use the property with no restrictions that could prevent the lessee from adhering to the eligibility requirements for licensure with no other in holdings or easements. The existence of any such lease restrictions or termination of the lease shall result in the denial or revocation of the license or permit. As part of his ESA application materials, Mr. Jablon provided a “Residential Lease Agreement,” dated July 31, 2015, between Ms. Watson and “James Jablon/WROH,” that generally stated that Ms. Watson agreed to rent to Mr. Jablon (and Wildlife Rehabilitation of Hernando) real property in Spring Hill, Florida, for a term of almost three months. The Residential Lease Agreement contains the signatures of Mr. Jablon, and purportedly, Ms. Watson. Thereafter, Mr. Jablon submitted to FWC a “License renewal correction update,” dated November 16, 2015, in which he provided a “correction” to the lease term to show that it was for three years, and not almost three months. This “correction” contains the initials of Mr. Jablon, and purportedly, Ms. Watson. At the final hearing, Mr. Jablon admitted that the signatures of Ms. Watson on the Residential Lease Agreement and the initials on the “License renewal correction update” were not those of Ms. Watson, but his. Mr. Jablon testified that he signed Ms. Watson’s signature and initials to these documents with Ms. Watson’s permission. Mr. Jablon further testified: We weren’t really concerned about the legality of the lease, because neither one of us had any intention of enforcing the lease. I wasn’t technically a tenant there leasing the property. I was over there to help her run that facility and work with her. So if you look at the lease, there’s really nothing—it’s basically the way it came in the package. . . . So, I mean, we didn’t—we didn’t care about the lease. Ms. Watson testified that she never asked Mr. Jablon to create a lease for the Spring Hill property, never gave him permission to sign her name on a lease, and never gave him permission to sign a “License renewal correction update.” Ms. Watson, who testified that she was familiar with the requirements for an ESA for Class I wildlife, also testified, consistently with Mr. Jablon, that the two had discussed moving Ed to her property to live with Savannah. The undersigned does not find Ms. Watson’s testimony credible concerning the creation of a lease for the Spring Hill property. As an owner of a lion, who testified that she was familiar with the requirements for an ESA for Class I wildlife, Ms. Watson knew of rule 68A-6.003(2)(c)1.’s requirement that an ESA permittee must own or lease the property upon which the wildlife would reside. By asking Mr. Jablon to move Ed to her property to live with Savannah, the undersigned finds that Ms. Watson would have known of this requirement that Mr. Jablon either own or lease the property where Ed would live. As Mr. Jablon did not own Ms. Watson’s Spring Hill property, the undersigned finds that Ms. Watson would have known that Mr. Jablon would need to lease the Spring Hill property to legally possess an ESA and locate Ed on the Spring Hill property. However, the undersigned also finds, based on his own testimony, that Mr. Jablon falsified Ms. Watson’s signature on the lease, as well as her initials on the “License renewal correction update,” which he submitted to FWC as part of his ESA application. His explanation for doing so--that neither he nor Ms. Watson intended to enforce the lease and renewal documents-- further indicates to the undersigned that Mr. Jablon intended to submit materially false documents to FWC in the ESA application process. On February 19, 2019, FWC received Mr. Jablon’s application for a PPNC and ESC. In its May 24, 2019, Notice of Denial, FWC stated: On May 12, 2016, Ms. Watson provided a sworn statement to Investigator Chad Paul stating that the lease [submitted with the October 19, 2015, application for ESA] was a falsification. In comparing signatures from Ms. Watson over the years to the lease you submitted, FWC confirmed the signature did not belong to Ms. Watson. The Notice of Denial further states, “[b]ased on your prior submission of materially false information, your applications [for a PPNC and ESC] have been denied.” The undersigned finds that competent, substantial evidence supports FWC’s determination that Mr. Jablon submitted materially false information when he applied for an ESA in 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Fish and Wildlife Conservation Commission issue a final order denying Mr. Jablon’s PPNC and ESC applications. DONE AND ENTERED this 27th day of September, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2019. COPIES FURNISHED: James Jablon 15297 Highfield Road Brooksville, Florida 34604 Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The 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 is whether proposed amendments to the Collier County comprehensive plan are in compliance with the criteria of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Located in southwest Florida, south of the Caloosahatchee River and southeast of Lake Okeechobee, Collier County comprises about 2000 square miles or 1.28 million acres. The County borders the Gulf of Mexico on the west, Lee and Hendry counties on the north, Broward and Dade counties on the east, and Monroe County and the Gulf of Mexico on the south. Contiguous tracts of government-owned land occupy much of the County, especially the southeast portion of the County. These tracts include the Big Cypress National Preserve, Everglades National Park, Fakahatchee Strand State Preserve, Ten Thousand Islands Aquatic Preserve, Collier Seminole State Park, and, at the northwest corner of these public holdings, the Florida Panther National Wildlife Refuge. The area that is the subject of the present case is the Big Cypress Area of Critical State Concern (Big Cypress). The Big Cypress contains about 931,000 acres, of which about 778,000 are in Collier County. This represents about 60 percent of the County. Encompassing nearly all of the government-owned land identified in the preceding paragraph, as well as smaller areas of privately owned land, the Big Cypress will eventually extend to about 92 percent of the County. On July 23, 1996, the Collier County Board of County Commissioners adopted Ordinance No. 96-41. The ordinance would amend the future land use element (FLUE) of the comprehensive plan (as amended, the Plan) of Respondent Collier County (County). Petitioner Gary L. Beardsley (Beardsley) is an environmental consultant who has worked in Collier County since 1984. He appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Petitioner Environmental Confederation of Southwest Florida, Inc. (ECOSWF) is a confederation of about 50 organizations in Collier, Lee, Hendry, Charlotte, Sarasota, and DeSoto counties. Through its representative, Beardsley, ECOSWF appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Intervenors Barron Collier Partnership and Collier Enterprises are general partnerships. Intervenors Russell A. and Aliese Priddy; John E. Price, Jr.; and James E. Williams, Jr. are residents of, and maintain their primary places of business in, Collier County. Intervenors own over 56,000 acres in the Big Cypress. Their land is zoned agricultural, and they engage in active agricultural activities on much of this land. Barbara Cowley, as representative of Intervenors, submitted comments to the Collier County Board of County Commissioners while the Board was considering the plan amendments. Plan Provisions The challenged plan amendments would reinstate three agricultural exemptions from land-use restrictions otherwise imposed by the Plan upon agricultural activities in the Big Cypress. The land-use restrictions presently in effect limit site alterations, drainage, and structural installations in the Big Cypress with no exemption for agricultural activities. The Plan originally exempted agricultural activities from the prohibitions against site alterations, drainage, and structure installations in the Big Cypress. In 1991, when adopting its land development regulations, Collier County amended the Plan to eliminate these agricultural exemptions in the Big Cypress. Adopting a recommendation of a citizen advisory committee, Collier County reasoned that “agricultural uses are intensive uses which alter the land significantly and should be regulated with regard to the site alteration, drainage, and structure installation requirements as other land uses are within the Critical Area.” Five years later, Collier County decided to readopt the original agricultural exemptions in the land development regulations and the Plan. A fourth plan amendment in the adoption ordinance affects land uses outside the Big Cypress; it is restated below, but Petitioners have challenged only the three amendments reinstating the original agricultural exemptions. The proposed plan amendments would change the FLUE. Following the FLUE goals, objectives, and policies, the FLUE provides detailed explanations of the FLUE designations. Although not in the form of goals, objectives, and policies, these explanations are operative provisions of the Plan. The proposed plan amendments would revise the explanatory section entitled, “Area of Critical State Concern Overlay” (Overlay). The Overlay applies to land uses in the Big Cypress. As originally adopted, the Plan required that all “development orders” comply with Chapter 27F-3, Florida Administrative Code, which regulated activities in the Big Cypress. (Chapter 28-25 has since superseded Chapter 27F-3.) As amended in 1993, the Plan now provides that development orders in the Big Cypress must comply with the rules of Chapter 27F-3 or the Overlay provisions, whichever are more restrictive. Overlay Section A addresses site alterations, Overlay Section B addresses drainage, and Overlay Section D addresses structure installations. Overlay Section A.1 provides: Site alterations shall be limited to ten percent of the total site size, and installation of nonpermeable surfaces shall not exceed 50 percent of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The original agricultural exemption for site alterations was contained in Overlay Section A.8, which provided: “This rule [i.e., the Overlay provisions governing site alterations] shall not apply to site alterations undertaken in connection with the agricultural use of land or for the conversion of land to agricultural uses.” The proposed plan amendments would readopt this original language. The plan amendment not challenged by Petitioners eliminates the percentage limitation for site alterations for conservation purposes. The unchallenged plan amendment states (new language underlined and repealed language stricken through): For land zoned agricultural Estates, outside of the Area of Critical State Concern, and identified as Southern Golden Gate Estates in Goal 2 of the Golden Gate Area Master Plan, that is engaged in or is proposing bona fide agricultural use(s), site alteration percentage limits may be adjusted for site alteration activities designed for conservation and/or environmental purposes as set forth in an environmental impact statement approved by the Board of County Commissions. Such site alteration activities include: (i) prescribed fires and associated firebreaks as approved by the Florida department of forestry; (ii) removal and control of listed exotic plant species; (iii) native habitat occurring plant species; (v) [sic] restoration of historical hydroperiods; and (vi) other activities designed for conservation and environmental purposes reviewed on a case by case basis. Overlay Section B addresses drainage in the Big Cypress. Section B.2 requires new drainage facilities to release water in a manner approximating the natural local surface flow regime . . . either on-site or to a natural retention or filtration and flow area. New drainage facilities shall also maintain a groundwater level sufficient to protect wetland vegetation through the use of weirs or performance equivalent structures or systems. Said facilities shall not retain, divert, or otherwise block or channel the naturally occurring flows in a strand, slough, or estuarine area. Originally, Section B.4 provided: “This rule shall not apply to drainage facilities modified or constructed in order to use land for agricultural purposes or to convert land to such use.” The proposed plan amendments would readopt this original language. Overlay Section D addresses the installation of structures in the Big Cypress. Section D.1 requires that the “[p]lacement of structures shall be accomplished in a manner that will not adversely affect surface water flow or tidal action.” Originally, Section D.3 provided: “This rule shall not apply to structures used or intended for use in connection with the agricultural use of the land.” The proposed plan amendments would readopt this original language. Goal 1 of the Conservation and Coastal Management Element (Conservation) states: “The County shall continue to plan for the protection, conservation, management and appropriate use of its natural resources.” Conservation Objective 1.1 states: By August 1, 1994, the County will complete the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. . . . The FLUE also contains an overlay for areas of environmental concern. However, the only significance of this overlay is that the County promises later to adopt land development regulations governing development in such areas. As a Plan provision, this overlay does not directly protect any natural resources. The Plan contains definitions to clarify terms used in the Collier County Comprehensive Plan and not to establish or limit regulatory authority of other agencies or programs. Some definitions have been changed from those found in Chapter 163, Florida Statutes to reflect local usage. Paragraph 64 of the definitions defines “development” as the “act, process, or result of placing buildings and/or structures on a lot or parcel of land or clearing and/or filling of land.” A “note” at the end of the explains the meaning of “properly,” “appropriate(ly),” and “effective(ly).” The note explains that these words are used to allow the Board of County Commissioners flexibility in its decision making process for the issuance of development orders . . .. Because several areas of this plan identify future studies and/or programs, flexibility was reserved by the Board of County Commissioners until these studies and programs have been completed and specific statements could be developed for inclusion in the Growth Management Plan through the amendment process. DCA Review of the Proposed Plan Amendments The County transmitted the proposed plan amendments to Respondent Department of Community Affairs (DCA) to determine whether they are in compliance, as required by Section 163.3184(1)(b). By Objections, Recommendations, and Comments (ORC) issued February 9, 1996, DCA announced objections that, if not addressed, could have provided the basis for a determination that the plan amendments were not in compliance. The ORC contends that the plan amendments are not supported by data and analysis. The ORC states that Collier County did not provide any data and analysis to “justify reinstatement of the agricultural exemptions.” The ORC recommends that the County describe the conditions that have “occurred or changed to warrant reinstatement of the agricultural exemptions” and “consider and assess the practicality of allowing less than 100 percent clearing in areas where significant natural resources occur or could be adversely affected.” The ORC notes that Collier County provided no analysis of the environmental impacts that could result from reinstating the agricultural exemptions. The ORC contends that the plan amendments are internally inconsistent. The ORC explains that reinstatement of the agricultural exemptions creates a “potential for loss (through clearing activities) of natural resources such as wetlands and listed species['] habitats.” The ORC questions the consistency of the reinstatement of the agricultural exemptions, with the attendant loss of natural resources, with Conservation Goal 1 and Objective 1.1. The ORC suggests that the County consider additional protection from agricultural uses for areas within the Big Cypress that contain “significant natural resource areas.” The ORC contends that the plan amendments are inconsistent with Goal 8 and Policy 8.10 and Goal 10 and Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan, as set forth at Section 187.201, Florida Statutes. The ORC contains the comments of various state and regional agencies, including the Southwest Regional Planning Council, Department of Environmental Protection (DEP), and South Florida Water Management District (SFWMD). The Southwest Regional Planning Council determined that the plan amendments were consistent with the Strategic Regional Policy Plan of the Southwest Regional Planning Council and recommended that Collier County, SFWMD, or another entity monitor the impacts in the Big Cypress of the agricultural activities that would be permitted by the amendments. DEP noted that Collier County had not analyzed the impact of the readoption of the agricultural exemptions on lands designated for agricultural use. DEP mentioned that agriculturally designated lands may include sensitive habitats used by threatened or endangered species and thus “deserve a special classification.” DEP also linked agricultural practices in the area to problems in water quality and quantity, as well as disturbed hydroperiods. For these reasons, DEP suggested that the County designate appropriate lands as Conservation and enlist DEP’s assistance in forming stewardship alliances with landowners in the Big Cypress to preserve these natural resources. SWFWMD commented that it does not exempt most agricultural activities from its Environmental Resource Permitting requirements. But SWFWMD added that the “site alteration and drainage regulations of the . . . Overlay represent a valuable addition.” The County did not revise the proposed plan amendments after receiving the ORC. Explaining the County’s position, a staff memorandum dated March 4, 1996, asserts that the proposed amendments are supported by data and analysis because the amendments achieve consistency with Chapter 28-25, do not prevent the County from adopting land development regulations to protect the affected natural resources, and affect a small amount of undeveloped land (14 of 81 square miles) as compared to the large amount of land owned or about to be owned by public entities. The March 4, 1996, memorandum disclaims any inconsistency between the proposed plan amendments and Conservation Goal 1 and Objective 1.1. In support of this claim the memorandum cites Policy 1.1.2, which calls for the adoption of land development regulations incorporating the Conservation goals, objectives, and policies; Policy 1.1.5, which is to avoid duplication of effort with private and public agencies; and Policy 1.1.6, which is to balance the benefits and costs of the County conservation program between the public and private sectors. On September 9, 1996, DCA published in the Naples Daily News its Notice of Intent to find the proposed plan amendments in compliance. On September 30, 1996, Petitioners filed their petition challenging the proposed plan amendments. Data and Analysis In its proposed recommended order, Collier County cites as supporting data and analysis the same items asserted in the March 4, 1996, memorandum. In isolation, these items offer little, if any, support for the readoption of the agricultural exemptions. In the context of the readily available data and analysis, the data and analysis on which the County relies provide no support for the blanket reinstatement of the agricultural exemptions proposed by the plan amendments. The County argues that the reinstatement of the agricultural exemptions is supported by the presence of an identical exemption in Chapter 28-25 for agricultural activities in the Big Cypress. This argument treats the rules protecting areas of critical state concern as a “safe harbor” so that, if incorporated into a local government’s comprehensive plan, they assure a finding of supporting data and analysis. The effect of this argument is that comprehensive plans would provide greater protection from agricultural activities to natural resources outside areas of critical state concern than they would provide the same natural resources in areas of critical state concern. The County implies that the proposed plan amendments would have little effect because relatively little land of the affected land remains undeveloped, most of the land is in public ownership, and much of the remainder of the land will be in public ownership. Although the percentage of such undeveloped, privately owned land may be low, the actual area remains significant. Also, proposed agricultural exemptions apply to land already in agricultural use, not just undeveloped land proposed for conversion to agricultural use. Each proposed exemption applies to activities “to use land for agricultural purposes or to convert land for such use.” Obviously, adding privately owned agricultural land to privately owned undeveloped land means that the proposed exemptions would affect even more land. Lastly, the County, in effect, argues for a relaxation of land-use restrictions on land just prior to its public acquisition. Such an action would jeopardize the purpose of what has been an ambitious land-acquisition program to protect the important natural resources of this area. The County argues that its land development regulations protect any natural resources left vulnerable by the reinstatement of the agricultural exemptions. As compared to plan provisions, land development regulations are easily repealed and do not generally, in the best of circumstances, supply much support, as data or analysis, for plan provisions. This case does not present the best of circumstances given the valuable and extensive natural resources and the reliance on land development’s regulations to the exclusion of the Plan provisions that the County effectively proposes to repeal with the reinstatement of the agricultural exemptions. The County argues that other permitting regimes govern agricultural uses in the Big Cypress. Most notably, the area of critical state concern program obviously does not. The vigorous participation of the Intervenors and the comments of the SFWMD suggest that the failure to reinstate the three agricultural exemptions in the Plan would meaningfully restrict agricultural activities. In any event, authority dictating avoidance of duplicative permitting regimes was not intended to prohibit the County from strengthening Plan protections for the natural resources found in the Big Cypress. For the reasons stated in the preceding paragraphs, the County’s data and analysis do not support the proposed plan amendments. In fact, the proposed plan amendments are repudiated by considerable data and analysis that the County has ignored. These data and analysis have emerged since the adoption of the Plan and 1993 plan amendments, but prior to the adoption of the proposed plan amendments. Two sources of these data and analysis are the Florida Panther: Habitat Preservation Plan—South Florida Population, which was issued in November 1993 by individuals employed by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Florida Department of Environmental Protection, and National Park Service for the Florida Panther Interagency Committee (Habitat Preservation Plan), and Closing the Gaps in Florida’s Wildlife Habitat Conservation System, which was issued in 1994 by individuals employed by the Florida Game and Fresh Water Fish Commission (Closing the Gaps). The Habitat Preservation Plan notes that the U.S. Fish and Wildlife Service designated the Florida panther as a federal endangered species 30 years ago. Fourteen years later, the U.S. Fish and Wildlife Service approved a recovery plan for the Florida panther. The Service revised the plan six years later in 1987. The purpose of the 1987 recovery plan is to develop three viable, self-sustaining populations within the historic range of the Florida panther. This range extended through the entire southeast, not just Florida. Recovery efforts focus on three elements: stabilizing the south Florida population, preserving and managing genetic resources, and reestablishing at least two more populations elsewhere. The Habitat Preservation Plan warns that these “three elements must proceed simultaneously if recovery of the Florida panther is to be successful.” Habitat Preservation Plan at page 1. Focusing on the first element, the Habitat Preservation Plan identifies “actions that will assure the long-term preservation of habitats considered essential for maintaining a self-sustaining population of panthers in south Florida” (emphasis deleted). Id. at page 2. The Habitat Preservation Plan reports that a self- sustaining population requires at least 50 adult panthers. Id. The Habitat Preservation Plan estimates that the south Florida panther population appears stable at 30-50 adult animals. Id. at page 1. However, the plan, at page 2, cautions: Important panther habitat is being lost daily. Urban Development and agricultural expansion in occupied panther range without consideration for habitat needs of the panther are expected to accelerate as Florida’s [human] population increases. Development activities could reduce the available habitat to a level below the minimum threshold essential for a self-sustaining panther population. The Habitat Preservation Plan states that Collier is one of only four counties with a documented reproducing panther population—the other counties are Lee, Dade, and Hendry. Adult males require 200 square miles with little overlap with other males. Adult females require 75 square miles with some overlap with other panthers. Florida panther prefer white-tailed deer and feral hogs, but will also eat raccoons, armadillos, rabbits, birds, and alligators. According to the Habitat Preservation Plan, an adult panther annually eats the equivalent of 30-50 deer. The Habitat Preservation Plan states that “[l]and management plays an important role in panther habitat preservation.” Id. at page 5. According to the plan, prescribed burning, which facilitates the use of livestock range, also benefits the white-tailed deer. The plan warns that panther habitat is threatened by the invasion of nuisance exotics, such as melaleuca, Brazilian pepper, and Australian pine. The Habitat Preservation Plan asserts that the preferred panther habitats are hardwood hammocks and pine flatwoods, which are upland habitats in south Florida. Private lands in Collier County typically feature improved and native rangeland, wet and dry prairies interspersed with cabbage palm, and pine and oak forests—habitat that the panther share with other endangered or threatened species, such as the Florida sandhill crane, Audubon’s crested caracara, Florida grasshopper sparrow, and the burrowing owl. The Habitat Preservation Plan suggests that South Florida may be near carrying capacity for panthers, so that further habitat loss means the loss of panthers. Nor are the existing publicly owned lands in south Florida sufficient; they can probably support only 9-22 of the estimated 30-50 panthers in the region. Id. at page 9. The threat to panther habitat posed by agricultural uses depends entirely on the type of agricultural use for which development is proposed. The Habitat Preservation Plan acknowledges that native range and sustained yield forestry retain native habitat and “can be compatible with panther use.” Id. at page 16. Other uses, such as citrus groves, vegetable farms, and improved pasture, eliminate native habitat. However, the plan describes an ongoing evaluation of the possibility that fertilization of livestock range may boost the nutrition of deer, which would also assist the panther. Also, the plan acknowledges the importance of the configuration and scale of agricultural development. Panthers may persist in a mosaic of native and nonnative habitats where the size and configuration of an improved pasture, vegetable field or citrus grove and the composition of adjoining landscapes determine whether or not the mosaic provides suitable panther habitat. Agricultural lands interspersed with native habitats may benefit the panther’s primary prey, deer and feral hogs. Id. at page 16. The Habitat Preservation Plan warns that citrus development in particular may displace panther habitat in southwest Florida at a fast rate as grove owners, using new technologies, expand citrus into the pine flatwoods of southwest Florida. But the plan suggests that small citrus groves dispersed carefully among preserved panther habitat might provide corridors and cover for the panther. The Habitat Preservation Plan suggests that south Florida livestock range is divided equally between native range and improved pasture. Suggesting that even improved, overseeded pasture may assist the panther by providing additional food for the white-tailed deer, the plan focuses on the “size and configuration of the pasture and the interspersion and connectivity of native cover adjacent to the pasture.” Id. at page 20. Among methods of habitat preservation, the Habitat Preservation Plan lists numerous approaches that do not require acquisition of the fee simple. These approaches include incentives in landowner agreements and conservation easements to encourage the perpetuation of native range and sustained-yield forestry as opposed to other, more habitat-disruptive agricultural uses. The Habitat Preservation Plan describes a number of laws that assist in the preservation of panther habitat. Although not mentioning the state laws governing development in areas of critical state concern, such as Big Cypress, the plan discusses Chapter 163, Part II, Florida Statutes, and the role of the comprehensive plans of local governments, such as Collier County, whose jurisdictions encompass prime panther habitat. Using available data, the Habitat Preservation Plan identifies habitats suitable for preservation as priority one or priority two. Priority one habitats, which include much of the still-forested area affected by the proposed plan amendments, comprise the “lands most frequently used by the panther and/or lands of high quality native habitat suitable for the panther . . ..” Id. at page 34. The first of several recommendations contained in the Habitat Preservation Plan is to: Develop site-specific habitat preservation strategies for [priority one] lands considered essential to maintaining the Florida panther population south of the Caloosahatchee River at its present level. Strategies should emphasize preservation of suitable panther habitat on private lands by methods that retain private ownership of those lands to the extent possible, and implement management practices on public lands that, based on existing data, would be expected to result in improved habitat conditions for the panther. Id. at page 37. Quantitatively, priority one lands south of the Caloosahatchee River that are not designated for federal or state acquisition constitute 203,500 acres. Id. If implemented, the first recommendation would preserve the land where 43 panthers were found 98 percent of the time during the period of study. Id. Again ignoring the laws governing development in areas of critical state concern, the ninth recommendation is for DCA, the regional planning councils, and local governments to review their efforts in protecting panther habitat in the context of the provisions of the Habitat Preservation Plan. Closing the Gaps addresses the habitat needs of a variety of species, not only the Florida panther. The findings and conclusions of Closing the Gaps agree with those of the Habitat Preservation Plan as to the panther. Closing the Gaps finds that nearly all of the Big Cypress not publicly owned is good habitat for the Florida panther, as well as the Florida black bear and American swallow- tailed kite. Closing the Gaps reports that nearly all of the Big Cypress already hosts a stable black bear population. Closing the Gaps rates much of the privately owned portion of the Big Cypress as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps also finds that isolated County locales, including some in the affected area, present good potential habitat for the Florida sandhill crane, although much more extensive potential habitat is found north and east of Collier County. Closing the Gaps includes Collier County in the Southwest Florida Region, which does not include any of Monroe or Dade counties. Closing the Gaps calls this region, which extends north to Sarasota County, “the most important region in Florida” in terms of “maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . ..” Id. at page 173. As to the area northwest of the Big Cypress National Preserve, Closing the Gaps asserts that the “mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida.” Id. at page 174. Closing the Gaps cautions: “The threats facing Florida panthers require quick and aggressive action if panthers are to be saved from extinction. . . . [B]ut the situation is far from hopeless if quick actions are taken.” Closing the Gaps, page 68. Repeating the warning of the Habitat Preservation Plan, Closing the Gaps cautions that “[o]ne of the greatest threats to the continued existence of panther habitat in south Florida is conversion of large areas of rangeland and native land cover to agriculture.” Id. In particular, citrus development threatens to subdivide existing, contiguous panther habitat, including that land covered by the proposed plan amendments. Closing the Gaps concludes with suggestions for how to protect valuable natural resources. Acknowledging that acquisition is the most effective and least controversial of methods, Closing the Gaps suggests the purchase of lesser rights, such as conservation easements or development rights. Omitting mention of the state program designating areas of critical state concern, Closing the Gaps advises that local governments protect valuable habitat through their comprehensive plans. The Plan currently prohibits various agricultural activities in the Big Cypress. The prohibited activities are the alteration of more than 10 percent of the site; installation of structures that would alter surface water flow; and implementation of drainage systems that fail to approximate the natural local surface flow regime, maintain sufficient groundwater levels to protect wetland vegetation, or retain, divert, or impede the naturally occurring flows in a slough or strand. The proposed amendments would permit these activities, if done for agricultural purposes. The data and analysis do not support the blanket reinstatement of the proposed agricultural exemptions. The data and analysis support the present Plan provisions. The data and analysis might support a more sophisticated approach to agricultural activities, with due regard to the extent and configuration of various types of agriculture in terms of the impact on endangered species and their habitat. However, the County has not attempted such an approach with the proposed plan amendments, and it is premature to consider further what such an approach might involve. To the exclusion of fair debate, the proposed amendments are unsupported by the data and analysis. Internal Consistency Conservation Objective 1.1 required the County, by August 1, 1994, to adopt and implement a “comprehensive environmental management and conservation program” to “ensure that the natural resources, including species of special status,” are “properly, appropriately, and effectively identified, managed, and protected.” The covered species are those listed as endangered and those listed by the Florida Game and Fresh Water Fish Commission as endangered and potentially endangered. Conservation Objective 1.1 promised future action. By mid-1994, the County was required to adopt a program to “properly, appropriately, and effectively . . . protect. . .” listed species. Absent a Plan requirement that such protection be expressed in the Plan, the County arguably could have discharged this requirement by adopting land development regulations. And perhaps that was the intent of the 1993 changes to the land development regulations and Plan. The words of flexibility—“properly,” “appropriately,” and “effectively”—reveal the promissory nature of this objective. According to the Plan, these words were designed to leave the County flexibility until it later completed the necessary work so “specific statements could be developed for inclusion” in the Plan. By the language of Conservation Objective 1.1, the promise came due in 1994. Perhaps part of the County’s response was the elimination of the agricultural exemptions that it is now trying to reinstate. In any event, the Plan does not now allow the County to repudiate its undertaking to “protect” the Florida panther “properly, appropriately, and effectively.” Regardless of the flexibility accorded these three adverbs, Conservation Objective 1.1 does not permit the County to amend the Plan so as to facilitate further loss of panther habitat, which the data and analysis disclose would be the inevitable result of the reinstatement of the agricultural exemptions. To the exclusion of fair debate, the proposed plan amendments are inconsistent with Conservation Objective 1.1. Consistency with the State Comprehensive Plan As set forth in Section 187.201(8)(a), Florida Statutes, Goal 8 of the State Comprehensive Plan states that Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. As set forth in Section 187.201(b)10, Policy 8.10 of the State Comprehensive Plan is to “[p]rotect surface and groundwater quality and quantity in this state.” Notwithstanding DEP’s comments, as reflected in the ORC, the record is not sufficiently developed as to water-quality issues to permit a finding that, to the exclusion of fair debate, the proposed amendments would conflict with these water-quality provisions of the State Comprehensive Plan. As set forth in Section 187.201(8)(a), Goal 10 of the State Comprehensive Plan states that Florida shall protect and acquire unique habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. As set forth in Section 187.201(b)10, Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan are to Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational value. * * * 3. Prohibit the destruction of endangered species and protect their habitats. * * * 5. Promote the use of agricultural practices which are compatible with the protection of wildlife and natural systems. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. To the exclusion of fair debate, the proposed plan amendments are inconsistent with the provisions of the State Comprehensive Plan providing for the conservation of forests and the wildlife using the forests from intense agricultural uses, such as for citrus groves, vegetable farming, and improved pasture; the protection of the endangered Florida panther and other species through the protection of their critical and essential habitats; and the promotion of agricultural practices that are compatible with the protection wildlife and natural systems. Notwithstanding general depictions of wetlands in various sources of data and analysis, the record is not sufficiently developed as to the treatment by the proposed amendments of wetlands in the Big Cypress to permit a finding that, to the exclusion of fair debate, the proposed amendments conflict with these wetland provisions of the State Comprehensive Plan.
Recommendation It is RECOMMENDED that the Department of Community Affairs submit this recommended order to the Administration Commission for entry of a final order determining that that proposed plan amendments are not in compliance. DONE AND ENTERED this 26th day of September, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: Attorney Thomas W. Reese 2951 61st Avenue South St. Petersburg, Florida 33712 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Ramiro Manalich Chief Assistant County Attorney Marjorie M. Student Assistant County Attorney Collier County Attorney Office 8th Floor, Administration Building 3301 Tamiami Trail East Naples, Florida 34112-4902 C. Laurence Keesey Young, van Assenderp & Varnadoe, P.A. SunTrust Building 801 Laurel Oak Drive, Suite 300 Naples, Florida 34018 Stephanie Gehres Kruer General Counsel 2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 James F. Murley, Secretary 2555 Shummard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue is whether Petitioner's applications to renew her Licenses to Possess Class II and III Wildlife for Exhibition or Public Sale should be approved.
Findings Of Fact The Commission is the state agency that has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. Before moving to her current residence in Kissimmee, Petitioner resided in Tampa, where she possessed a bobcat kitten and a kinkajou, a small rain forest creature. In May 2012, she advised the Commission by email that she intended to move to Central Florida. She requested that the Commission provide her with copies of rules that would apply if she kept a bobcat inside her new residence. In response to that request, the Commission provided her with copies of all applicable rules. She was also told that, in order to secure the bobcat, she would have to install chain link on her windows and a secondary safety entrance to the home. These features are necessary in order to ensure public safety. On an undisclosed date, Petitioner moved to a 2,000 square-foot home located at 8520 Sioux Trail, Kissimmee, where she established a captive wildlife facility. Later, she acquired two more bobcats, which she intended to use for presentations and educational shows in the Central Florida area. For that purpose, she formed Florida's C.L.A.W.S., an unincorporated organization that exhibits and sells wildlife at local events in Central Florida to educate the public about, and raise money for, the care of her animals. Her full-time vocation, however, is a tattoo artist, which requires that she work around 60 hours per week, often late into the night and during the early morning hours. "Captive wildlife" species are listed in Florida Administrative Code Rule 68A-6.002. The rule establishes three classes of captive wildlife: I, II, and III. Each requires a license issued by the Commission. Until it expired on March 5, 2015, Petitioner possessed a Class II license, issued on March 14, 2014, which allowed the exhibition and sale of Felidae (the family of cats). Until it expired on June 10, 2015, she also possessed a Class III license, first issued on June 3, 2011, which allowed the exhibition and sale of mammals, birds, reptiles, amphibians, and conditional species. By holding these licenses, she was responsible for the care of the captive wildlife at her facility. The instant case involves her applications to renew the two licenses. After her licenses expired and the two applications for renewal denied, on July 1, 2015, a Notice to Relinquish Wildlife was issued by the Commission. In response to that order, Petitioner moved her Class II and III captive wildlife to a friend's facility, where they remain pending the outcome of this proceeding. Currently, she keeps only dogs and cats at her home. When the Kissimmee facility was fully operational, Petitioner had more than 30 animals/reptiles, including foxes, bobcats, skunks, snakes (non-venomous), tegu lizards, and a kinkajou. All of these species are listed as captive wildlife in rule 68A-6.002. On February 25, 2014, an announced, routine inspection of Petitioner's facility was conducted by Captive Wildlife Investigator Damon Saunders. This type of inspection is required when a new facility is established. During the inspection, Investigator Saunders observed seven rule infractions, which are noted in his report and depicted in photographs taken that day. See Resp. Ex. C and D. Overall, he found the condition of the facility to be "substandard." The documented violations on February 25, 2014, are as follows: There was no safety entrance for the bobcat enclosure, as required by rule 68A- 6.003(1)(a); There was rusting that affected the structural integrity of the bobcat enclosure, in violation of rule 68A-6.0023(5)(e); Weld spots on the east side of the bobcat enclosure were coming undone due to corrosion in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The kinkajou was housed in a bird cage, in violation of rule 68A-6.004, which requires a cage size of six feet by eight feet, and six feet high; There was no record for the source of acquisition for her reticulated python, which is required by rule 68A-6.0023(6); A microchip passive integrated transponder (PIT) tag was not detected for the reticulated python; a PIT tag is required by rule 68-5.001(3)(e)2.; and The fox and various reptile enclosures had dirty water bowls, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean. At the end of the inspection, Investigator Saunders met with Petitioner and identified each infraction he observed; he explained how each should be corrected; and he told her that she had 30 days, or until March 27, 2014, to correct the violations. She was also given a copy of the Commission's captive wildlife rules, with the violated rules highlighted. Although Investigator Saunders observed several other violations that day, they were not noted on his inspection report because he knew the facility had just been established, and he wished to give Petitioner additional time in which to get her facility operating in accordance with all rules. On July 28, 2014, or approximately five months later, an unannounced, follow-up inspection was conducted by Captive Wildlife Investigators Steven McDaniel and Rick Brown. The purpose of the inspection was to determine if the violations observed on February 25, 2014, had been corrected. The inspection was purposely delayed until July, rather than 30 days after the first inspection, so that Petitioner would have adequate time to take corrective action. Petitioner complained that the inspection occurred when she just awoke around 10:20 a.m., after a long night at work and before she had time to clean the facility. For obvious reasons, however, the Commission does not give licensees advance warning of follow-up inspections. During the inspection, the investigators noted that Petitioner had six foxes, three bobcats, two skunks, a kinkajou, a reticulated python, and several nonvenomous snakes. With the exception of the safety entrance for the exterior bobcat cage, Petitioner acknowledged that none of the violations observed during the first inspection had been corrected. The investigators found some wildlife living in outdoor cages or other enclosures, while others, including two skunks, a bobcat, a kinkajou, a reticulated python, and several reptiles, were living in her home. Investigator McDaniel testified that "it looked as if very little had been done" and characterized the condition of the wildlife as "mediocre to poor." Investigator Brown noted that there was an "extreme" lack of care of the wildlife, the violations were "serious," and they were having an adverse impact on the health and well-being of the wildlife. The investigators observed a number of rule violations, which are listed in their Inspection Report and depicted in photographs taken that day. See Resp. Ex. E and F. The rule violations are summarized below: The outer safety door for the cage containing two bobcats was unsecured, in violation of rule 68A-6.0023(2)(b), which requires the cage to be sufficiently strong to prevent escape; There was standing, stagnant water in the bobcat shelter, in violation of rule 68A-6.0023(1), which requires wildlife to be maintained in sanitary conditions; Both the bobcats' water container and water in the container were dirty, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean and requires clean drinking water to be provided daily; There were large amounts of old and fresh fecal matter throughout the bobcat cage, in violation of rule 68A-6.0023(5)(d), which requires fecal waste to be removed daily from inside, under, and around cages and stored or disposed of in a manner which prevents noxious odors or pests; and carrion flies were evident on the fecal matter; The bobcat cage floor had not been raked every three days, as required by rule 68A- 6.0023(5)(e); The rust in the bobcat cage that was observed during the February 25 inspection was still evident and excessive, in violation of rule 68A-6.0023(5)(e), which requires any surface of a cage or enclosure that may come into contact with animals to be free of excessive rust that prevents the required cleaning or that affects the structural strength; The broken welds on parts of the cage panel walls on the bobcat cage observed during the February 25 inspection had not been repaired, in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The cage for the two foxes measured ten feet by five feet, two inches by six feet, and did not meet the caging requirements of eight feet by six feet by six feet specified in rule 68A-6.004(4)(h)2.a.; A fox was found in a small kennel cage inside Petitioner's home under veterinary care for an injured foot in violation of rule 68A-6.0041(2), which requires animals being temporarily housed in smaller cages for veterinary care to be in cages no smaller than that required for the caged animal to stand up, lie down, and turn around without touching the sides of the enclosure or another animal; Digging was observed between outdoor fox cages exposing the bottom apron in violation of rule 68A-6.003(1)(b)1., which requires the bottom apron to be buried to prevent injury to the captive wildlife in the enclosure; Two snakes in the bull/gopher snake family were observed in their own cages without water and a ball python was observed in a glass cage without water in violation of rule 68A-6.0023(5)(b), which requires that clean drinking water be provided daily; The ball python was in a glass cage with shed skin and old fecal matter; there were two Machlot's pythons in a large cage that was littered with excessive old fecal matter and old shed skins; a boa constrictor cage had old fecal matter in it; the reticulated python cage had old fecal matter and shed skins throughout the cage; the tegu lizard cage had old feces; all in violation of rule 68A-6.0023(5)(d), which requires fecal material to be removed daily, and rule 68A-6.0023(5)(e), which requires hard floors within cages or enclosures to be cleaned a minimum of once weekly; The kinkajou was still housed in the bird cage, which was too small; there was no water or food present; the floor of the cage was covered in old fecal matter; and Petitioner admitted that the cage had not been cleaned in four days. These conditions violated rule 68A-6.0023(5)(b) and (c), which requires the animals to be provided clean drinking water and food; The third bobcat was being housed inside Petitioner's house in a spare bedroom lacking a safety entrance as required by rule 68A-6.003(1)(a); the two doors leading into the room were hollow-core doors and not of sufficient strength, and there was no required wire or grating covering the windows, in violation of rule 68A- 6.003(3)(e), which requires potential escape routes to be equipped with wire or grating of not less than 11.5-gauge chain link or equivalent; Two skunks were housed in a spare bedroom that adjoined the bobcat cage room; the floor was covered in mainly old, but some new, smeared fecal matter; there were no water bowls; the bathroom window was open and only covered by the typical bug screen associated with household windows; all in violation of rule 68A-6.0023(5)(d), which requires cages and enclosures to be ventilated to prevent noxious odors, and rule 68A-6.003(3)(h), which requires the room to be constructed of materials of not less than 14-gauge wire or strength equivalent and the escape routes to be secured; Petitioner was unable to provide records of acquisition of any animals in her possession, as required by rules 68A-6.0023(6) and 68-5.001(3)(e).6.; and Petitioner's Critical Incident Disaster Plan was only partially completed, in violation of rules 68A-6.0022(7) and 68-5.001(3)(e)5. Each of these violations is substantiated by clear and convincing evidence. At the conclusion of the inspection, Petitioner was given another copy of the Commission's rules, with the violated rules highlighted; she was told how each infraction should be corrected; she was asked if she had any questions regarding the violations; and she was given another copy of the first inspection report. A new 30-day deadline was established for correcting all violations except the source of acquisition and critical incident plan, for which she was given 60 days to take corrective action. However, no follow-up inspections were made. Petitioner contends that if the follow-up inspection on July 28, 2014, was made later than 10:30 a.m., she would have had time to feed and water the wildlife and clean their cages. However, the amount and appearance of the feces, the presence of snake skins, and the appearance of dirty water bowls in the enclosures indicates that the enclosures had not been cleaned for an extended period of time. During the first inspection, Petitioner identified the source of acquisition of all wildlife, except the reticulated python. After the first inspection, Petitioner acquired a boa constrictor, two Macklot's pythons, four tegus, two carpet pythons, one gopher snake, one bull snake, four sulcatta tortoises, one blue tongue skink (lizard), and one Central American wood turtle. However, she was unable to produce acquisition paperwork for any captive wildlife. She blamed this on the fact that many of her wildlife were donated to her or purchased at exhibitions, apparently meaning that the names of the donors or sellers were unknown. Acquisition information is essential, as the Commission uses these records to combat the illegal trafficking of wildlife. Petitioner blamed many of the facility violations on a lack of financial resources and personal issues in her life that arose in 2014, leaving her with little time or resources to comply with Commission rules. She pointed out that an injury to one of the foxes required an expenditure of almost $2,000.00 in one month alone, which drained her resources; her father was diagnosed with a terminal illness and passed away a short time later; and her fiancée required two surgeries, which prevented him from assisting her in caring for the wildlife. She also testified that she was working 60-hour weeks as a tattoo artist to support herself, which left very little time to care for the wildlife. Given these time constraints, it is surprising that she continued to acquire even more wildlife after the first inspection was made. While Petitioner maintains that the exhibition and sale of animals is intended to support her facility, it is apparent that whatever money was generated by that activity is insufficient to adequately care for the wildlife. In sum, Petitioner contends that many of the violations are unwarranted or simply technical violations of the rules, or other circumstances prevented her from taking corrective action and maintaining the facility in accordance with Commission rules. The evidence belies this contention. Although the Commission presented evidence of alleged violations of United States Department of Agriculture rules observed during an inspection by that agency on June 30, 2015, for which warnings were issued, these violations were not cited in the Notice of Denial as a basis for denying the applications and have been disregarded by the undersigned. See, e.g., Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31, 34 (Fla. DCA 1993)(matters not charged in an administrative action cannot be considered as violations). Likewise, Petitioner's contention that the Commission failed to act on her applications within 90 days, raised for the first time during her testimony, has been disregarded as being untimely. See also § 120.60(1), Fla. Stat. Although each infraction noted during the second inspection constituted a violation of state law, a criminal citation for only three violations was issued and reported to the local State Attorney's Office. These included a failure to correct the violations noted during the February inspection; maintaining captive wildlife in unsanitary conditions; and improper caging for Class II wildlife. However, the State Attorney decided to prosecute Petitioner for all violations. On July 28, 2014, criminal charges were filed in County Court. On advice of her counsel, on April 24, 2015, Petitioner pled guilty to all charges and was adjudicated guilty of maintaining captive wildlife in unsanitary conditions in violation of section 379.401(7). Besides having a fine imposed, Petitioner was placed on probation for six months and required to perform community service. Under the terms of her probation, she was ineligible to possess Class I or II wildlife for the duration of her six-month probation period. Just before her criminal case was concluded, Petitioner filed applications to renew her licenses. A major impediment to approving them is a Commission rule that requires denial of an application if the applicant has been adjudicated guilty of a violation of any provision of chapter 379. See Fla. Admin. Code R. 68-1.010(2). The same rule provides, however, that denial is not automatic, as the Commission is required to consider nine factors when determining whether to approve or deny an application. See Fla. Admin. Code R. 68-1.010(5)(a)- (i). After considering each relevant factor, the Commission issued its Notice of Denial on June 11, 2015. Petitioner then requested a hearing. Petitioner unquestionably cares for wildlife and would never intentionally harm them through inattention or lack of care. However, due to personal and financial issues, and full- time employment outside her home that consumes much of her time, she is unable to comply with Commission rules for operating a captive wildlife facility. There is clear and convincing evidence to support the Commission's denial of the applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife and Conservation Commission enter a final order denying Petitioner's applications for Class II and III Wildlife licenses. DONE AND ENTERED this 26th day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2016. COPIES FURNISHED: Eugene Nichols "Nick" Wiley, II, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Rachel Arnott 8520 Sioux Trail Kissimmee, Florida 34747-1531 (eServed) Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Whether Petitioner’s application for renewal of his license to possess class III wildlife for exhibition or public sale (class III license) should be granted.
Findings Of Fact Respondent is a state agency authorized to exercise the executive and regulatory powers of the state of Florida with respect to wild animal life and fresh water aquatic life. See Fla. Const. Art. IV, § 9. 1 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. Petitioner holds a class III license which authorizes him to possess class III wildlife for exhibition or sale.2 Petitioner is the owner and license holder authorized to maintain a facility called Iguanaland, located in Punta Gorda, Florida. Iguanaland is a reptile facility that has as its goal the preservation of certain species and the conservation of endangered species. Petitioner is a respected member of a community of individuals who keep, and make serious efforts to breed, reptiles in captivity. He is widely known for holding one of the largest collection of reptiles in the United States. Petitioner’s facility has been successful with reproducing reptile species, adding to the diversity within the captive reptile population. Petitioner partakes in cooperative trading with zoological institutions. He helps to facilitate research on hard-to-come-by reptilians. His facility greatly contributes to the preservation of endangered reptile species. It is the only facility in the United States that has the capacity to successfully breed reptilians on a large scale. Petitioner maintains temporary living quarters on the facility’s grounds to host graduate students conducting research. Petitioner has never been disciplined by Respondent; he has not received a written or verbal warning. Respondent’s witness, Investigator O’Horo, testified that, “anything that’s still caged [at Petitioner’s facility] is being taken care of” and that he has been “impressed with the husbandry[3] aspect.” Petitioner maintains several species of reptilians at Iguanaland, including lizards, snakes, and chelonians. 2 Class I wildlife is wildlife which, because of its nature, habits, or status, shall not be possessed as a personal pet; class II wildlife is wildlife considered to present a real or potential threat to human safety; class III wildlife is all other wildlife not included in Class I or Class II. See § 379.3762(2), Fla. Stat. 3 “Husbandry” generally refers to the care, food, and shelter that is provided to the reptilians. Monitor lizards include a wide class of lizard species. Monitor lizards, in general, are primarily carnivores, eating mostly animal matter. They are typically between one and nine feet long. In July 2020, Petitioner had possession of three crocodile monitor lizards. Crocodile monitor lizards are an uncommon type of monitor lizard. They are known for having extremely long tails relative to their body length and uniquely shaped heads. Petitioner commissioned a construction worker to build an enclosure for the crocodile monitor lizards, in accordance with FWC requirements. This included a request to fortify the bottom of the crocodile monitor lizards’ wired enclosure with cement. Unfortunately, the construction worker failed to cement a space of approximately one foot along the barrier of the enclosure. Petitioner testified that he inspected the enclosure several times, and failed to notice the gap. Investigator O’Horo also inspected the enclosure and did not notice the gap. In August 2020, two of Petitioner’s three crocodile monitor lizards escaped from Iguanaland, through the opening in the enclosure. One of the two escaped crocodile monitor lizards injured two pet dogs at a neighboring property. The crocodile monitor lizard was euthanized to prevent further issue. For the period of June 2016 through November 2020, FWC staff members received reports of sightings of over 100 non-native tegus and other reptilians within a half-mile radius of Petitioner’s facility. Although Respondent proved that non-native tegus and other reptilians were spotted and captured in the vicinity surrounding Iguanaland, it offered no competent, substantial evidence that the large population of tegus and other reptilians in the area surrounding Petitioner’s facility was caused by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order approving Petitioner’s renewal application, subject to such reasonable terms and conditions as FWC deems appropriate. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Michael P. Haymans, Esquire Michael P. Haymans Attorney at Law, P.A. 215 West Olympia Avenue Punta Gorda, Florida 33950 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether Charles River Laboratories, Inc.'s (CRL) applications for permits for its primate facilities on Raccoon Key, Key Lois, and Summerland Key should be granted and, the conditions, if any, that should be attached to the permits.
Findings Of Fact THE PARTIES Charles River Laboratories (CRL) is a corporation that breeds rhesus monkeys on two offshore islands in the Florida Keys (Key Lois and Raccoon Key) and has a land base on Summerland Key.1 The Florida Game and Fresh Water Fish Commission is the agency of the State of Florida authorized to exercise the executive and regulatory powers of the State with respect to wildlife and fresh water aquatic species. Article IV, Section 9 of the Florida Constitution provides that authority as follows: There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission's exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life. Curtis Kruer resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer lives within a thirty minute boat ride of Raccoon Key and Key Lois. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer considers his ability to use the waters in the vicinity of Raccoon Key and Key Lois to have been diminished as a result of what he perceives to be a threat to his safety and the safety of his clients posed by the free ranging monkeys on these two islands. Mr. Kruer has standing to challenge whether the subject permits protect the public safety. CRL’S POSSESSION OF WILDLIFE CRL established its monkey colony on Key Lois in 1973. It thereafter established its colony on Raccoon Key in 1976. CRL obtained its first license to possess wildlife from the Florida Game and Fresh Water Fish Commission (Commission) in 1973, and has received annual licenses ever since. These annual permits have been issued pursuant to the provisions of Section 372.921, Florida Statutes. Raccoon Key, Key Lois, and Summerland Key are within the Florida Keys Area of Critical State Concern. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk’s Channel, which is in the Atlantic Ocean. Raccoon Key is located in the Great White Heron National Wildlife Refuge approximately three miles north of Cudjoe Key in the Gulf of Mexico. The waters surrounding Raccoon Key and Key Lois are relatively shallow. There is a great deal of boating activity in the vicinity of both islands. CRL does not have an accurate count of the number of monkeys on either Key Lois or Raccoon Key and it does not maintain an accurate inventory of its monkeys. CRL’s best estimate at the time of the formal hearing was that there were approximately 200 free ranging monkeys on Key Lois and approximately 1,000 free ranging monkeys on Raccoon Key. The facility on Summerland Key is utilized for shipping and receiving, and no monkeys are permanently housed at that facility. CRL tattoos its adult monkeys, but it does not tattoo or otherwise mark its subadult monkeys. It is difficult to establish ownership of a monkey that has escaped and has been recaptured if the monkey has not been tattooed or otherwise marked. The Commission has reasonably determined that CRL should be required to keep an accurate inventory of the monkeys it possesses and that it should be required to mark for identification by tattoo, computer chip, or otherwise its monkeys that are one year old or older. An accurate inventory will assist CRL in knowing when a monkey is missing. Marking its monkeys will enable CRL to identify an escaped monkey after it has been caught. The free range monkeys on Raccoon Key and Key Lois are primarily used for breeding and are generally older monkeys that have lived in a free range society all of their lives. These free range monkeys have formed active social groups. CRL sells monkeys for use in medical research for numerous diseases and conditions affecting humans, such as osteoporosis, diabetes, Alzheimer’s disease, and AIDS. CRL’s monkeys have been isolated from human contact and are free from disease, including the Herpes B Virus. CRL’s monkeys are a valuable resource for medical research. CRL located its monkey colonies on Key Lois and Raccoon Key with the expectation that the location of the monkeys on these offshore islands would help keep the monkeys free from disease. CRL is licensed by the United States Department of Agriculture (USDA)as a dealer under the Animal Welfare Act, 7 U.S.C. 2131, et seq. CRL is prohibited by its registration under the Animal Welfare Act to sell its animals as pets or to any entity that has not been licensed either as a dealer or as a research facility pursuant to the Animal Welfare Act by the USDA.2 PRIOR CONSENT AGREEMENTS To settle a dispute with the Florida Department of Environmental Protection’s predecessor agency (the Florida Department of Environmental Regulation) CRL committed to eliminate free-ranging animals from Key Lois by the year 2003 and from Raccoon Key by the year 2008. CRL has begun to eliminate free range animals from both islands pursuant to that agreement. To settle a dispute with the Trustees of the Internal Improvement Fund filed in the Circuit Court of the Sixteenth Judicial Circuit in and For Monroe County (Case 86-190-CA-13), CRL agreed to cease its operations on Key Lois and convey title to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key no later than December 31, 2024, to the United States for inclusion in the National Wildlife System. THE APPLICATION CRL is the applicant for the permit that is the subject of these proceedings. Paul Schilling, D.V.M., has been the director of CRL’s monkey breeding activities in the Florida Keys since 1983. The permit that immediately preceded the permits at issue in this proceeding was issued by the Commission with an effective date of issuance as June 29, 1994. The date of expiration was July 4, 1995. On June 8, 1995, the Commission mailed to CRL a written renewal notice. The Commission’s policy is to accept as timely renewal applications for up to thirty days following the stated expiration date of the former permit. Under that policy, CRL timely filed the applications for the subject permits (one for Key Lois, one for Raccoon Key, and one for Summerland Key). The initial renewal application was filed after July 4, 1995, but within the thirty day grace period. Because the applications were submitted without the signature of a representative of CRL, the applications were returned to CRL for Dr. Schilling’s signature. Consistent with its practice, the Commission accepted the applications after they were signed and resubmitted as applications for renewal of the existing permits even though the completed applications were not received until July 24, 1995. The Commission’s action in treating the applications as renewals is not explicitly authorized by rule, but it is consistent with the Commission’s established policy. Under Commission policy, while a license renewal is being processed, the facility is still under license and the renewed permit is issued retroactive to the expiration date of the previous permit so that there is no gap in licensure. Under Commission policy, CRL remains a licensed facility pending the outcome of this administrative proceeding. CRL’s application states on its face that the “Company breeds Rhesus monkeys, Macaca mullata for sale to commercial laboratories.” This activity is described as being “COMMERCIAL ACTIVITY.” CRL captures most of the younger animals for sale or placement in captive breeding facilities. The application for Raccoon Key required the applicant to provide the “exact number by species” of wildlife to be possessed”. In response thereto, CRL provided the following: “Approximately 2,000 Rhesus Monkeys (Macaca mullata) animals are free range and group housed on an island off the Florida Keys (Raccoon Key).” The amount of the application fee was $25.00, the amount charged for eleven or more animals. The application for Key Lois also required the applicant to provide the “exact number by species” of wildlife to be possessed.” In response thereto, CRL provided the following: “Approximately 1,500 Rhesus Monkeys (Macaca mullata) animals are free range and group housed on an island off the Florida Keys (Key Lois).” The amount of the application fee was also $25.00, the amount charged for eleven or more animals. The application for Summerland Key was for “Holding of 0 - 8 Rhesus under clinical care." The Commission accepted and processed CRL’s application consistent with its established policies. THE APPLICABLE STATUTES Section 372.021, Florida Statutes, provides as follows: The Game and Fresh Water Fish Commission may exercise the powers, duties and authority granted by s. 9, Art. IV of the Constitution of Florida by the adoption of rules, regulations, and orders in accordance with chapter 120. Section 372.921, Florida Statutes, provides, in pertinent part, as follows: In order to provide humane treatment and sanitary surroundings for wild animals kept in captivity, no person, firm, corporation, or association shall have or be in possession or, in captivity for the purpose of public display with or without charge of for public sale any wildlife, specifically birds, mammals, and reptiles, whether indigenous to Florida or not, without having first secured a permit from the Game and Fresh Water Fish Commission authorizing such person, firm, or corporation to have in its possession in captivity the species and number of wildlife specified within such permit; however, this section does not apply to any wildlife not protected by law and the regulations of the Game and Fresh Water Fish Commission. Section 372.922, Florida Statutes, provides, in pertinent part, as follows: It is unlawful for any person or persons to possess any wildlife as defined in this act, whether indigenous to Florida or not, until she or he has obtained a permit as provided by this section from the Game and Fresh Water Fish Commission. * * * (4) Any person, firm, corporation or association exhibiting or selling wildlife and being duly permitted as provided by s. 372.921 shall be exempt from the requirement to obtain a permit under the provisions of this section. CRL’s sale of monkeys to commercial laboratories is a “public sale” within the meaning of Section 372.921, Florida Statutes. CRL’s monkey breeding operation in the Florida Keys requires a permit from the Commission pursuant to Section 372.921, Florida Statutes. THE APPLICABLE RULES Chapter 39-6, Florida Administrative Code, has been duly adopted by the Commission and is intended to implement Sections 372.921 and 372.922, Florida Statutes. The title to this chapter, “Wildlife as Personal Pets.” While this title is misleading, CRL knew that its operations were regulated by these rules of the Commission. Rule 39.6.0011, Florida Administrative Code, pertains to the possession of wildlife in captivity and provides, in pertinent part, as follows: Except as otherwise provided by this Title, no person shall possess any native or non-native wildlife in captivity except as authorized by permit issued in accordance with ss. 372.921 or 372.922, F.S., and as provided in this chapter. The provisions of this chapter shall not apply to entities operating solely as research facilities which are registered and regulated as such in accordance with Animal Welfare Act (7 U.S.C. 2131 et seq.) and regulations promulgated thereunder. Rule 39-6.002(1)(b)9, Florida Administrative Code, classifies macaques (genus Macaca) as Class II wildlife, which are wildlife “considered to present a real or potential threat to human safety." See, Section 372.922(2)(b), Florida Statutes. Under Rule 39-6.0023, Florida Administrative Code, Class II wildlife are required to be caged or, if unconfined, are required to be maintained under rigid supervision and control, so as to prevent injuries to members of the public. Rule 39-5.004(5), Florida Administrative Code, provides the following criteria pertinent to this proceeding:: The severity of the conduct; The danger to the public created or occasioned by the conduct; The existence of prior violations of ch. 372, F.S., or the rules of the commission; The length of time a licensee or permittee has been licensed or permitted; The effect of denial, suspension, revocation or non-renewal upon the applicant, licensee, or permittee’s existing livelihood; Attempts by the applicant, licensee or permittee to correct or prevent violations, or the refusal or failure of the applicant, licensee, or permittee to take reasonable measures to correct or prevent violations; Related violations by an applicant, licensee or permittee in another jurisdiction; The deterrent effect of denial, suspension, revocation or non-renewal; Any other mitigating or aggravating factors. The provisions of Rule 39-5.004(5), Florida Administrative, are the duly adopted rules of the Commission providing permitting criteria and those provisions were applied by the Commission in processing the subject permits. THE CHALLENGED PERMITS AND ADDENDUM On March 29, 1996, the Commission issued its “Notice of Intent to Issue Renewal of a Permit to Possess Wildlife for Exhibition or Public Sale with Addendum” that provided, in pertinent part, as follows: This is a notice of intent to renew the permit to authorize Charles River Laboratories, Inc. (CRL), to possess for breeding and sale, sub-human primates on Key Lois and Raccoon Key in Monroe County, Florida, in accordance with Section 372.921, Florida Statutes, and Rule 39-6, Florida Administrative Code, consistent with the following Addendum to enhance public security and prevent escapes of primates: GENERAL FINDINGS The water surrounding Key Lois and Key Raccoon (sic) and the remote location of the islands were once believed to constitute an adequate barrier to prevent escape of primates from the islands and to prevent interference with the primate population by unauthorized persons. However, primates have escaped (or have been removed without CRL’s authorization) from the islands, and the islands are not secure from those who may seek to trespass or enter upon them. Accordingly, the Commission finds that water alone is no longer an adequate barrier to prevent escape of the resident primates and to prevent entrance upon the islands by unauthorized persons. Therefore, affirmative security measures are required for public safety. CRL is subject to a Petition for Appeal of Development Order in the case of The Department of Community Affairs v. Charles River Laboratories, Inc., et al., Case No. 96-1405DRI, FLAWAC APP-96-003 (Florida Land and Water Adjudicatory Authority Commission), which asserts that the continued use of Raccoon Key and Key Lois as a primate facility will adversely impact the quality of nearshore waters, mangroves, seagrass beds and other marine resources; and therefore, the facility is inconsistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern. The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida has filed a Motion to Enforce a Consent Final Judgment in the case of Charles River Laboratories, Inc. v. Trustees for the Internal Improvement Trust Fund. Case No. 86-190-CA-13. The Commission shall fully coordinate and cooperate with the Department of Community Affairs and the Department of Environmental Protection in their efforts to resolve the above-cited actions. ADDENDUM Special Permit Conditions as to Key Lois only: CRL shall eliminate all free-ranging primates from Key Lois no later than December 31, 1996. Special Permit Conditions as to Raccoon Key only: CRL shall eliminate not less than thirty-three percent (33%) of free-ranging primates from Raccoon Key by December 31, 1996, shall eliminate not less than sixty-six percent (66%) of the total free-ranging primates from Raccoon Key by December 31, 1997, and eliminate all remaining free- ranging primates from Raccoon Key by December 31, 1998. Special Permit conditions as to security on Key Lois and Raccoon Key: CRL shall institute random water security patrols of the islands during non- work hours; CRL shall provide cellular telephones to all personnel working the islands to insure more rapid reporting and responses to escapes or thefts; CRL shall install chains and locks to all temporary and permanent caging; CRL shall provide remote sensing alarms, or in the alternative, provide day- time security personnel on site on both Keys during periods when CRL personnel are not present; CRL shall immediately tattoo or permanently mark all adult and subadult primates as they are captured and caged, so that ownership can be positively identified in the case of escape or theft. CRL shall comply with all sanitation, water disposal and waste disposal requirements provided by local, state or federal law. CRL shall reimburse the Commission in the amount of $1000 per primate, payable to the Florida Game and Fresh Water Fish Commission, as reimbursement for the Commission’s costs associated with the investigation or recapture of primates which have escaped or which have been removed without CRL’s authorization from the CRL facility. All primate escapes or thefts from the CRL facility must be reported to the Tallahassee Office, (904)488-6253, of the Commission immediately. CRL shall at all times maintain a complete and accurate inventory of all primates on Key Lois and Raccoon Key and shall submit such inventory records to the Commission (a) within thirty (30) days of the date of issuance of this permit, (b) at the Commission’s request, upon an escape or unauthorized removal of a primate from the facility, and (c) no later than thirty (30) days prior to the expiration of this permit. The inventory shall include the total number of primates held in field cages on each island, the total number of free-ranging primates on each island and numbers of primates brought to the CRL facility as of January 1, 1996. This permit may be subject to revocation, suspension, or non-renewal in accordance with Rule 39-5.004, F.A.C. Nothing herein shall authorize CRL to construct or maintain any structure or facility that would be in violation of the Monroe County Comprehensive Land Use Plan, the Monroe County Code and the Principles for Guiding Development in the Florida Keys Area of Critical State Concern or in violation of any final order, judgment, or settlement agreement thereto in the case of Department of Community Affairs vs. Charles River Laboratories, et al., DOAH Case No. 96- 1405DRI, FLAWAC APP-96-003 (Florida Land and Water Adjudicatory Commission). This permit will be effective twenty- one (21) days from the date of receipt of this notice by the applicant or within twenty-one (21) days from the date of publication of this notice, whichever is later. This addendum to permit will expire concurrent with the expiration of the Permit to Possess Wildlife for Exhibition or Public Sale, unless otherwise authorized by the Executive Director. THE 1990 CORRESPONDENCE On September 21, 1990, Robert M. Brantly, the Commission’s Executive Director, wrote to Dr. Schilling a letter that contained the following discussion on the issue of safety: F.A.C. 39-6.003(1)(a), requires, “A fence sufficient to deter entry by the public shall be present around the premises wherein Class I or Class II animals are housed or exercise outdoors.: There are no perimeter fences around Key Lois or Raccoon Key, and Rhesus macaques are classified as Class II animals. In the past, we have considered the water surrounding your facilities as a barrier to escape and public access. During the August 24th inspection, we found that water alone does not meet the intent of the regulation requiring a security fence. Past security breeches documented on that inspection included: The holding compound was broken into on Raccoon Key. The intruders released numerous primates. It is also possible that a theft of some primates occurred. This incident occurred four years ago. The holding compound was broken into again about two or three years ago. A macaque escaped twice (same animal) about five years ago. Employees recaptured the animal on Little Crane Key. A generator was stolen from one of the islands. You did not report the escapes to us as required in you agreement with the Commission, nor were we made aware of the security problems. To prevent future security breeches, you must construct a fence capable of deterring entry by the public and preventing the escape of the macaques from the islands. As an alternative to a monkey- proof fence, you may confine the primates in enclosures that meet minimum pen specifications; however, you must still construct a fence that will deter entry by the public. In October 1990, there was a meeting between Col. Brantly and Dr. Schilling and Mr. Routa, the attorney for CRL. On November 5, 1990, Col. Brantly wrote to Dr. Schilling a letter that contained the following: Having met with you and Mr. Routa on October 23, 1990, we now determine that the Laboratory [CRL] may continue to operate under its current captive animal permit without the perimeter fence required by Rule 39-6.0023, Florida Administrative Code. This rule requirement was not applied to the Laboratory because the water barrier around the keys was believed to provide adequate security to prevent monkeys from escaping and unauthorized persons from entering the facility. However, if a primate escapes or if unauthorized entry by the public were to occur, the water barrier would no longer be considered adequate security and appropriate action under Rule 39-6.002, F.A.C., would be taken. We ask that the Charles River Laboratory report, immediately and in writing, all incidents of escape of any monkeys from the islands or unauthorized public entry of the facilities. We further require, in accordance with Rule 39-9.002, F.A.C., that the Laboratory apply for a permit to capture any monkey which has escaped the islands. (Emphasis added.) The facts reflected by Col. Brantly’s two letters were accurate. ESCAPES SUBSEQUENT TO 1990 There have been several escapes of monkeys from Key Lois or Raccoon Key since the Commission’s 1990 letters. In addition, there have been unauthorized intrusions on these islands since 1990. On or about August 4, 1993, a CRL monkey (tattoo #81- 688) escaped from Raccoon Key to Little Crane Island which is approximately one-half mile from Raccoon Key. Little Crane Island is part of the Great White Heron Wildlife Refuge. The staff of the wildlife refuge shot and killed the monkey after attempts to tranquilize it failed. In 1994, a monkey was sighted on Big Torch Key and a monkey was also sighted on Little Torch Key. Both of these keys are approximately one-half mile from Raccoon Key. The monkey on Little Torch Key was a CRL monkey (tattoo #F-513), and was recaptured by CRL staff. The ownership of the monkey sighted on Big Torch Key was not established. In 1995, a CRL monkey escaped to Cudjoe Key, which is approximately two miles from Raccoon Key. This one-year old male was captured and returned to CRL. A second CRL monkey was sighted on Cudjoe Key in 1995. The Commission’s investigation revealed that this monkey had been taken from Key Lois by intruders and subsequently released. Another CRL monkey was stranded on a channel marker off Big Torch Key and recaptured by CRL. Rhesus monkeys are capable of wading or swimming from Raccoon Key and Key Lois to nearby islands. Most of the islands in the vicinity of Raccoon Key and Key Lois are capable of sustaining monkeys. Several of these nearby islands are residential areas. There is a lack of security for the CRL facilities on Raccoon Key and on Key Lois. There is no security personnel on either Raccoon Key or Key Lois after normal working hours. The additional security measures required by special permit condition 3 and its subparts are reasonable whether the CRL animals remain free range or are caged. POTENTIAL DANGER TO THE PUBLIC Rhesus monkeys have been known to attack humans if cornered or sufficiently provoked. Free range monkeys grow to approximately 30 pounds and are capable of inflicting serious injury on a human. Because they present a potential to humans, rhesus monkeys are appropriately classified as Class II wildlife by the Commission. There has not been an injury to a member of the public since CRL began its operations in 1973. This absence of injury is primarily attributed to the fact that the CRL monkeys are shy of humans because of the environment in which they were raised. Instead of attacking humans, it is more likely that an escaped monkey would run from humans. Although there is no perimeter fencing around either Raccoon Key or Key Lois, it is not appropriate to recommend such fencing as a means of preventing escapes because Rhesus monkeys can escape from fencing. The potential danger to the public posed by these free ranging animals can be eliminated only by removing all free ranging animals from both islands. The Commission has appropriately determined that CRL should be required to eliminate the free range populations from both islands. With adequate time, CRL can safely and humanely remove all free-ranging monkeys from Key Lois and Raccoon Key and continue its breeding operations with its monkeys being caged. If CRL elects to continue its operations by using cages on Key Lois and Raccoon Key, it would have to obtain all pertinent permits, including building permits from Monroe County, in order to construct the necessary cages to house the former free ranging monkeys. ENDANGERED SPECIES Silver rice rats are listed by the U.S. Fish and Wildlife Service and by the Commission as an endangered species. Raccoon Key provides a valuable habitat for this endangered species. The free-ranging monkey population has enhanced Raccoon Key as a habitat for silver rice rats because of the monkey chow and the fresh water that are made available. The additional caging that will be necessary for CRL to construct to eliminate the free-range population should be located in areas that will not destroy the silver rice rat habitat. Although Raccoon Key is within the National Key Deer Refuge, there was no evidence that Key Deer have historically used Raccoon Key. Key Deer would be more likely to use Raccoon Key if the monkeys were not present. Monkeys have destroyed habitat used by nesting birds and the mangrove terrapin. In determining that the free range monkeys should be eliminated, the Commission has considered the impacts of the free ranging monkeys on Raccoon Key and Key Lois on these species. Since the Commission’s responsibilities extend to these species, it was appropriate for the Commission to consider these impacts. HURRICANE VULNERABILITY Key Lois and Raccoon Key are vulnerable to hurricanes. These islands and all structures thereon would likely be inundated if a major hurricane were to strike them. While free- ranging monkeys would have a good chance of surviving a hurricane, any caged monkeys on Key Lois and Raccoon Key would likely drown when the storm surge inundates the cages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order that renews the subject permits with the special conditions recommended herein. DONE AND ENTERED this 23rd day of January, 1997, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as amended, by committing unlawful employment practices against Petitioner.
Findings Of Fact Petitioner is an African-American male who was born on April 25, 1943. He received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a Doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to his job applications, Petitioner worked for the U.S. Department of Commerce, National Marine Fisheries Service, from June 1965 until April 1994. He worked in various positions, including "survey statistician," "operations research analyst," "fishery research biologist as chief of turtle headstart," "fishery technician/biologist," and "Equal Employment Opportunity Counselor." From July 28, 1995, until July 6, 1998, Petitioner was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner is currently employed at Daytona Beach Community College in an unknown position. Petitioner filed his Charge of Discrimination with FCHR on September 2, 1997, indicating that the most recent or continuing act of alleged race, age, or sex discrimination occurred on August 11, 1997. Alleged acts of discrimination that occurred more than 365 days prior to the filing of the Charge of Discrimination cannot be considered here. See Section 760.11(1), Florida Statutes. Petitioner received letters from Respondent prior to September 2, 1996, informing him that he would not be hired for the following positions: (a) position No. 543 (Job Opportunity Announcement (JOA) #005-6) position filled by Laura Richards with hire date effective March 1, 1996, Petitioner's rejection letter dated April 5, 1996; (b) position Nos. 213 and 956, positions filled by Robert Guerra and Jacklyn Gilmore, respectively, both with effective hire dates of March 29, 1996, Petitioner's rejection letter dated April 3, 1996; and (c) position No. 1099, position filled by Lorraine Heisler with hire date effective May 10, 1996, Petitioner's rejection letter dated April 8, 1996. Therefore, employment decisions regarding these positions are not at issue here. Petitioner applied for and was rejected for the following position numbers after he filed his Charge of Discrimination with FCHR: (a) position Nos. 1161 and 1162, positions filled, Petitioner's rejection letter dated February 16, 1999; (b) position No. 1160, position filled, Petitioner's rejection letter dated March 15, 1999; (c) position No. 918, position filled, Petitioner's rejection letter dated June 4, 1998; (d) position No. 966, position filled, Petitioner's rejection letter dated August 27, 1998; and (e) position No. 859, Petitioner's application faxed to Respondent on June 29, 1998, Petitioner's rejection letter not in record. There is no evidence that FCHR's investigation of Petitioner's Charge of Discrimination and the resulting Determination of No Cause included the employment decisions associated with these positions. Therefore, they are not at issue here. There is no evidence that Petitioner ever applied for position No. 671. Accordingly, that position number is not at issue here. The employment positions at issue here are as follows: (a) position No. 543 (JOA #047-7, Issue Date July 16, 1997), no evidence regarding employment decision, no rejection letter in record; (b) position No. 1071, position filled by Dwight Myers with effective hire date of July 11, 1997, Petitioner's rejection letter dated June 30, 1997; (c) position No. 869, position filled by Forrest Marchinton with effective hire date of March 3, 1997, Petitioner's rejection letter dated February 13, 1997; (d) position No. 2503, position filled by Gil McRae with hire date of March 24, 1997, Petitioner's rejection letter not dated; and (e) position No. 878, Petitioner submitted a resume but no application for this position; Petitioner's alleged rejection letter dated August 11, 1997, is not in record. When Respondent desires to fill a vacant position, it requests the Department of Management Services (DMS) to publish a Vacancy Announcement, which provides a short summary of information regarding that position. The Vacancy Announcement contains the "bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and Respondent's contact person. When Respondent desires to fill a vacant position, it publishes a JOA, listing, among other things, the minimum qualifications and a description of job duties for the position. The JOA instructs applicants to submit a separate application for each position sought and to include the appropriate class title and position number. The JOA directs applicants to submit a completed State of Florida Application form to a named contact person. The State of Florida Employment Application directs applicants to "[l]ist the knowledge, skills, and abilities that [the applicant] will bring to the job." The application advises applicants to refer to the JOA or listed contact person to determine those specific requirements. For each established career service position, DMS and the applicable state agency create a Career Service Position Description (CSPD), which lists in great detail the job's duties and responsibilities. DMS and the agency maintain copies of the CSPD. When Respondent intends to fill a vacant position, it develops a Selection Criteria Form. This form sets forth the essential and preferred selection criteria based on the required knowledge, abilities, and skills for the position. Respondent uses the Selection Criteria Form to screen job applications, rank the applicants, and determine which applicants Respondent will interview. At hearing, Respondent's staff testified that it is required to interview the selected applicant. This testimony does not mean that Respondent may select an applicant before interviewing him or her. Likewise, this testimony does not mean that Respondent must select an interviewed applicant. Respondent may interview one or more applicants. After Respondent completes the interview process, it may select one of the interviewed applicants to fill the vacant position. Pursuant to DMS rules, Respondent cannot select an applicant that has not been interviewed. After Respondent selects the applicant most qualified for the vacant position, it prepares a Recruitment Report. This report identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the Respondent's reasons for determining that non-selected candidates are less qualified in comparison to the selection criteria. Position No. 543 Respondent initially advertised position No. 543, Biological Administrator I, in JOA #005-6. Petitioner applied for the position, but Laura Richards, a former FMRI employee, was better qualified for the job. Ms. Richards' effective hire date was March 1, 1996. Petitioner subsequently received Respondent's April 5, 1996, letter advising him that he was not selected for the position. All of this occurred more than 365 days prior to the date that Petitioner filed his Charge of Discrimination and is not at issue here. Ms. Richards vacated position No. 543 sometime after Respondent offered her the position. In the meantime, Petitioner had a conversation with Toby Harris, Respondent's Chief of Personnel in 1997. The conversation focused on the selection process for Respondent's established positions. In the conversation, Petitioner expressed his concern regarding his failure to be interviewed for positions when he had a Doctorate in a biological science area and selected candidates only had a Master of Science (M.S.) degree. Mr. Harris did not tell Petitioner that Respondent was targeting candidates with M.S. degrees. Instead, Mr. Harris indicated that he would ask Respondent's Division of Wildlife to interview Petitioner to determine whether he had relevant background qualifications not reflected on an application. Mr. Harris also agreed to add Petitioner's name to the mailing list for JOAs. In a letter dated August 8, 1997, James R. Schuette, one of Respondent's regional wildlife biologists, sent Petitioner two JOAs. One of the JOAs was for position No. 671, for which Petitioner never applied. The other JOA (#047-7, issued July 16, 1997) was for position No. 543. Petitioner applied for position No. 543 (JOA #047-7). Respondent offered to interview Petitioner and set up a date and time for the interview. However, Petitioner was unable to attend the interview because of transportation problems. Petitioner eventually advised Respondent that he was withdrawing his application for position No. 543. Consequently, there is no letter advising Petitioner that he was not selected for position No. 543. Moreover, the record contains no evidence as to whether Respondent ever filled position No. 543 or continued to seek applicants for that position. There is insufficient evidence on which to base a finding that Respondent discriminated against Petitioner in making an employment decision relative to position No. 543. Position No. 1071 Petitioner applied for position No. 1071, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 1071 are set forth as follows in the JOA: Develops and implements management plans for Lake Placid Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 1071. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. Wildlife is defined as land-based mammals and birds. Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes. When hiring for the position of Biological Scientist III, Respondent focuses on an applicant's knowledge, skills, and abilities in performing wildlife population surveys and inventories, working hunter check stations, collecting biological samples from wildlife and upland mammals and game birds, and interacting with the public in exchanging information pertinent to wildlife. Respondent looks for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 1071, states as follows in relevant part: Area Responsibilities: Duties and responsibilities include the direct involvement in the development and implementation of management programs for the KICCO Wildlife Management Area. . . . Management Planning: Duties and responsibilities include coordination of the development and periodic revision of long-range, comprehensive management plans for the KICCO Wildlife Management Area. . . . Program Development: Duties include supervision, coordination and direct involvement in projects to accomplish management of wildlife, timber, range and water resources. The job includes the following responsibilities: Collection of biological data to evaluate wildlife population numbers and fluctuation and land responses to habitat management. Accomplishment of work in Commission-planned activities such as controlled burning, roller chopping, wildlife food-plot planting, public hunt management, etc. . . . Providing wildlife related recreational opportunities including consumptive and nonconsumptive [sic] uses where appropriate. . . . Supervision of one Biological Scientist II and occasional assistance with program development on the Arbuckle and IMC Wildlife Management Areas. * * * Technical Assistance: Duties and responsibilities include providing technical guidance to private citizens or other governmental agencies in wildlife or associated land management programs. Information - Education: Duties and responsibilities include developing programs to disseminate information on wildlife management, environmental awareness, and related subjects. . . . Endanger [sic] and Exotic Species: Duties and responsibilities include identification and protection of endangered species and habitats. Documents and recommends eradication programs for exotic plant species that endanger native habitat. Petitioner was not interviewed for position No. 1071. His application did not indicate that he had the required training and experience in wildlife management. There were 41 applicants for position No. 1071, including 26 males and 15 females. Seven of the applicants were known to be minorities, including two black males. Respondent interviewed four males and one female. One of the interviewed males was known to be of Asian or Pacific Island descent. The individual that Respondent selected for position No. 1071 was Dwight Myers, a white male, age unknown. Mr. Myers' effective hire date was July 11, 1997. Mr. Myers' education and experience exceeded the minimum qualifications for the job. Mr. Myers was more qualified for the position than Petitioner because of his training and experience in wildlife management. Petitioner received a non-selection letter dated June 30, 1997, for position No. 1071. Petitioner was not hired because he lacked the preferred experience and education in wildlife management. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 1071. Position No. 869 Petitioner applied for position No. 869, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 869 are set forth as follows in the JOA: Develops and implements management plans for the Osceola Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 869. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. As stated above, Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes, and not with land-based mammals and birds. When hiring for position No. 869, Petitioner focused on the same knowledge, skills, and abilities as when hiring for position No. 1071. Respondent was looking for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 869 states as follows in relevant part: WILDLIFE MANAGEMENT AREA RESPONSIBILITIES PUBLIC HUNTING AND RECREATION Plan, implements and directs activities required for managing all public hunts on the Osceola, Bienville-PC Phosphate, Lake Butler an Cypress Creek WMAs. Hires, trains and supervises eight to ten seasonal employees; moves check stations to operational locations; collects biological data at check stations; disseminates information about wildlife to the public . . POPULATION MONITORING, MANAGEMENT AND BIOLOGICAL SAMPLING Database Management - Maintains detailed databases and up-to-date summary tables of all species monitored and all wildlife management activities on areas. Conducts sophisticated data analyses and develops Annual Management Reports. Wildlife Population Monitoring - Develops, administers and conducts surveys for monitoring and documenting population levels and status of selected game, migratory, threatened and endangered, and selected nongame [sic] species. Conducts annual population surveys for white-tailed deer, bobwhite quail and bobcats. Wildlife Population Management - Uses results of the population monitoring and analyses to develop options and recommendations to manage the population of species monitored. Actions could take the form of either regulatory or habitat management. Biological Sampling - Plans, directs and participates in the collection of biological samples for both live and hunter-harvested animals. Analyses those samples and provides reports summarizing the findings and conclusions. Specialized knowledge of collection procedures is required. Research - Coordinates wildlife research projects that may be conducted on the areas. This includes the live capture of wild animals and collection and maintenance of accurate records. . . . Analyzes large data bases to determine correlations and relationships with environmental factors and management actions. FACILITIES Maintenance and Habitat Management * * * Technical Assistance - Provides technical assistance to the US Forest Service regarding wildlife management including written comments on actions that will affect the quality of the habitat. Habitat Manipulation and Enhancement - Assists the US Forest Service with their habitat manipulation projects on Osceola WMA when time permits. Petitioner was not interviewed for position No. 869. His application did not indicate that he had any wildlife training or experience. There were 99 applicants for position No. 869, including 77 males and 22 females. Fourteen of the applicants were known to be minorities, including three black males and one black female. Respondent interviewed one white male and one male of Indian descent. The individual that Respondent selected for position No. 869 was Forrest Marchinton, a white male, age unknown. Mr. Marchinton's effective hire date was March 3, 1997. There is no specific evidence regarding Mr. Marchinton's education and experience for the job. However, there is evidence that all persons selected for wildlife biologist positions had education and experience in wildlife/environmental science. Petitioner received a non-selection letter dated February 13, 1997, for position No. 869. Petitioner lacked the preferred experience and education in wildlife management or ecology for the job. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 869. Position No. 878 Petitioner did not file a completed application for position No. 878, Biological Scientist IV. He only filed a resume. The application deadline for JOA #029-7 was July 7, 1997. Petitioner testified that he received a non-selection letter from Respondent on August 11, 1997. That letter is not in evidence. The JOA for position No. 878 states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and three years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and two year's of professional biological experience as described above; or a doctorate in one of the biological sciences. Prefer: Experience in geographic information systems, especially ARC/INFO, ARC VIEW, ERDAS IMAGE, and UNIX. The duties for position No. 878 are set forth as follows in the JOA: Obtains information, such as known occurrences of rare species of fish and wildlife, and ancillary data such as political boundaries, public land boundaries, soils, land cover, roads, hydrology, land use, etc., from outside sources and import/convert the data for use in the GFC geographic information system (GIS). Reviews scientific literature to obtain information on species requirements. Serves as the systems administrator for the GIS networked computer system. Provides technical assistance to Commission biologists, other agencies, and the public in the form of digital data and/or hard copy maps of GIS data layers. The CSPD for position No. 878 states as follows: This is a professional position responsible for investigating and analyzing fish and wildlife population dynamics and ecology as they relate to existing and proposed restoration and management activities in the Lake Okeechobee-Everglades-Florida Bay system. Serves on interagency committees, as assigned, to ensure that fish and wildlife issues are adequately addressed during restoration and management efforts. Independently seeks out background information and makes contacts with experts in various related fields in order to address these issues competently. Conducts field inspections, as necessary, to document habitat condition and existing fish and wildlife resources. Drafts agency comments and policy for supervisory review. Keeps supervisor up to date on progress of projects and committees. Analyzes effects of past, current, and proposed restoration and management programs on the population dynamics and ecology of freshwater fish and wildlife species. Conducts field inspections to document habitat conditions and existing fish and wildlife resources of affected communities. Designs and conducts limited scientific monitoring and research projects on aspects of Everglades habitat restoration and management alternatives, and the response of fish and wildlife communities to habitat management actions. Prepares project reports and manuscripts for scientific publication and public presentation. Reviews development proposals that would affect the restoration of the Everglades system. This includes conducting field inspections to document habitat conditions and existing fish and wildlife resources of affected communities, and drafting agency comments and policy for supervisory review. Petitioner possessed the minimum qualifications for position No. 878, as set forth in the JOA. However, there is no persuasive evidence that Petitioner had the required experience in geographic information systems to perform the job. Likewise, Petitioner clearly did not have the training and experience to fulfill the specific responsibilities and duties of the job as set forth in the CSPD as they relate to freshwater fish and wildlife. Petitioner presented no evidence as whether Respondent ever filled position No. 878 or continued to seek applications for the job after sending Petitioner a rejection letter. Even if Respondent made such a selection, Petitioner presented no evidence as the race, age, or gender of the selected individual. There is no evidence that Respondent discriminated against Petitioner in making an employment decision in regards to position No. 878. Position No. 2503 Position No. 2503, Research Scientist, was advertised by DEP for FMRI in JOA #97-102 on January 6, 1997 with an application deadline of January 30, 1997. The JOA states as follows in relevant part: MINIMUM QUALIFICATIONS: A bachelor's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and five years of professional experience in one of the physical or natural sciences or mathematics; or a master's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and four years of professional experience as described above; or a doctorate from an accredited college or university with a major course of study in one of the physical or natural sciences or natural sciences or mathematics and two years of professional experience as described above. SPECIAL REQUIREMENTS: Prefer working knowledge of age-structured fisheries models, familiarity with SAS, dexterity with PCs, and knowledge of life history and ecology of marine fish species. * * * BRIEF DESCRIPTION OF JOB DUTIES: Develop single and multi-species assessments of Florida's East Coast fisheries integrating research on life history, fishery monitoring, ecological and habit surveys and human behavior. Develop mathematical techniques to accomplish the above duties. Prepares reports and manuscripts for resource managers. Participates in preparation of management plans. REQUIRED ENTRY-LEVEL KNOWLEDGE, SKILL(S), & ABILITIES: Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to: process and analyze data; produce technical reports and manuscripts; develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. The CSPD for position No. 2503 states as follows: Independently integrate data from directed research studies on the life history or population dynamics of marine fishes, fishery monitoring programs, ecological and habitat surveys and human behavior into single and multi-species assessments of Florida's East Coast fisheries issues. Monitor the status of selected marine fisheries and analyze how well Florida's management goals are being met. Independently design and test new mathematical techniques to accomplish the above duties. Keep current on relevant literature. Attend courses and workshops pertaining to mathematical analyses of fisheries data. Assist with the coordination and implementation of all fisheries research and monitoring programs. Assist with the design and testing of sampling techniques for fisheries programs. Prepare reports and peer-reviewed manuscripts on findings from the above analyses. Prepare stock assessments and special reports for Florida's marine resource managers. Review and evaluate reports, in the preparation of management plans for federal fisheries contiguous to Florida. Advise and assist other departmental, governmental, institutional, or private agencies in matters related to the above research. Participate in the public outreach efforts as appropriate. Assist in other Institute activities as requested. Knowledge, Skill(s), and Ability(ies): List any entry level knowledge, skill(s) or ability(ies) relating to this position including utilization of equipment. KSAs identified in this section are considered essential function(s). Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to process and analyze data; produce technical reports and manuscripts; and develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as essential knowledge, abilities, and skills: Knowledge of: population assessment techniques; simulation modeling; and statistics: Ability to: communicate effectively in writing and verbally; process, analyze, produce technical reports and manuscripts; develop presentation from scientific data; plan and coordinate research; and design and test sampling methods. Skill in the use of: a programming language; modeling software; and word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as preferred essential knowledge and skills: Knowledge of: age-structured fisheries models Skill in the use of: personal computers DEP had 51 applicants for this position. The agency interviewed six of the applicants. Five of the interviewed candidates were white. One candidate was of Asian descent. Five of the interviewed candidates were male. One was female. Two of the interviewed candidates were over the age of 40. Four of the candidates were DEP employees. Petitioner applied for this position but did not receive an invitation for an interview. DEP sent him an undated non-selection letter, which states that the position had been offered to an applicant whose overall background most closely fit the knowledge, skills, and abilities required for the position. Petitioner met the minimum qualifications set forth in the JOA for position No. 2503. Persuasive evidence indicates that he did not have the necessary training and experience to perform the specific assessment modeling techniques in order to perform the job. A white male and a white female, who were already employed by FMRI, were not interviewed for the same reason. DEP selected Gil McRae, an FMRI employee, for position No. 2503 with an effective hire date of March 24, 1997. Mr. McRae was a white male under the age of 40. He had a M.S. in Fisheries Statistics and more than enough professional experience to meet the minimum qualifications for the job. He had been an Associate Research Scientist with DEP for fifteen months. Of all the applicants, Mr. McRae had the most knowledge and the best skills and abilities to perform the duties and responsibilities of the position. There is no persuasive evidence that DEP discriminated against Petitioner in making an employment decision relative to position No. 2503. Finally, there is no persuasive evidence that Respondent's staff ever told Petitioner that he would not be considered for a job because he had a doctorate. He was never advised that an interview with Respondent equated to a job offer. Moreover, there is no persuasive evidence that Respondent or DEP changed job classifications or varied conditions of employment to discriminate against Petitioner based on his race, gender, or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 15th day of September, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 15th day of September, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Preston T. Robertson, Esquire Sharman H. Green, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether the Florida Game and Fresh Water Fish Commission (Commission) should renew Respondent's permit to possess captive wildlife.
Findings Of Fact Operating under the name of South Florida Reptile Exchange, Respondent, Alvin Weinberg, has been permitted since 1978 by the Commission to possess captive wildlife. On September 2, 1992, the Commission issued an Administrative Complaint seeking to deny renewal of Respondent's permit for violations of minimum pen specifications and unsanitary and inhumane conditions at his facility. Under Rule 39-5.004, Florida Administrative Code, the Commission may revoke or deny renewal of any license or permit if the licensee or permittee is convicted or found guilty, regardless of adjudication, of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission. On June 16, 1992, Respondent's facility was inspected by Lt. Charles Dennis and Lt. John West. In the course of that inspection, they found a number of unsanitary and inhumane conditions. Specifically, most of the water bowls for the animals were empty. There were dead animals, maggots and an accumulation of fecal matter in many cages. Up to 150 turtles were kept in one pit that measured only 5' X 5'. Many reptiles had not been fed properly. For instance, one Monitor lizard was so emaciated that the inspectors were surprised it was still alive. The conditions found at Respondent's facility on June 16, 1992, were the worst seen in the 17 years experience of Lt. Dennis. Respondent was issued two criminal citations on the basis of these observations, for violations of a Commission rule relating to sanitation requirements and the humane treatment of captive wildlife, Rule 39-6.0023(5), Florida Administrative Code. These citations resulted in a criminal conviction of Respondent in St. Lucie County Court, Cases 92-1754MM and 92-1755MM. Respondent was previously issued a criminal citation in July of 1991 for violation of a Commission rule relating to sanitation requirements and humane treatment of wildlife at his facility. This citation also had resulted in a criminal conviction in St. Lucie County Court, Case 91-1345MM. Before these criminal proceedings, Respondent had received warning citations from inspectors for violations of Commission rules relating to sanitation and the humane treatment of animals. During the pendency of these proceedings, Respondent's facility was inspected again on January 6, 1993. Some conditions at the facility had improved, but there were still deficiencies related to sanitation and the humane treatment of the animals. Respondent has consistently been below the industry standard with respect to sanitary conditions and the humane treatment of wildlife kept at his facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's application to renew his permit to possess captive wildlife be DENIED by Final Order of the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1993. COPIES FURNISHED: James T. Knight III Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mr. Alvin H. Weinberg South Florida Reptile Exchange 20510 Glades Cutoff Road Port St. Lucie, Florida 34987 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
