The Issue Is an Agency that settles a challenge to its denial of a license by agreeing to issue the license a "non-prevailing adverse party," as defined by section 120.595(1)(e)3., Florida Statutes (2019)? 1
Findings Of Fact The Commission denied an application by Mr. Lightsey for issuance of a Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended Notice), signed by Major Rob Beaton, Division of Law Enforcement, advised Mr. Lightsey that the Commission intended to deny his application. The Amended Notice included this dispositive paragraph: "Due to the facts stated above, pursuant to 68-1.010, F.A.C, your application for a HPL has been denied. We are processing your application fee for a refund, and you should receive it within 21 days." The Amended Notice also advised Mr. Lightsey of his right to request a hearing to challenge the intended decision. Mr. Lightsey challenged the proposed denial and requested a formal administrative hearing. Mr. Lightsey brought his challenge under section 120.57(1), which creates a right to a formal hearing to dispute a proposed agency action. The Commission referred the matter to the Division for assignment of an Administrative Law Judge and conduct of the hearing. The parties settled the licensing dispute before the hearing. Their settlement agreement provided for the Commission issuing each of the denied licenses. The parties' agreement also provided for severing the attorney's fees and costs claim, leaving it pending for the Division to resolve if the parties could not agree. The order closing the file in this case severed the fees and costs claim and reserved jurisdiction over it. The parties could not agree. The division re-opened the fees case as DOAH Case No. 19-5210F. This proceeding followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that The Florida Fish and Wildlife Conservation Commission enter its Final Order denying Petitioner's Motion for Fees and Costs under section 120.595, Florida Statutes. DONE AND ENTERED this 31st day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2020. COPIES FURNISHED: Bert J. Harris, Esquire Swaine, Harris & Wohl, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Sharmin Royette Hibbert, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
Conclusions The Florida Fish and Wildlife Conservation Commission (“FWC” or ‘““Commission’) hereby enters the following Final Order. ISSUE AND SUMMARY The Commission issued a permit to Chris Johnson to conduct leatherback turtle research through the Loggerhead Marinelife Center, Inc. (hereinafter “LMC’”) in 2001 and has continuously reissued this permit. However, Chris Johnson’s employment with LMC was recently terminated. On January 22, 2014, the Commission issued Marine Turtle Permit #14-157A to Chris Johnson, Filed October 2, 2014 3:57 PM Division of Administrative Hearings authorizing him to conduct leatherback turtle research on Palm Beach County beaches, effective January 1, 2014. On December 20, 2013, the Commission issued a permit to Sarah Hirsch, Data Manager for LMC, to conduct marine turtle research on Palm Beach County beaches, effective January 1, 2014. On May 27, 2014, the Commission issued Marine Turtle Permit #14-211 to Dr. Charles Manire, who works for LCM, to conduct a subset of the same activities that Chris Johnson’s permit authorizes Chris Johnson to perform with leatherback turtles. On February 12, 2014, LMC filed a Request for Enlargement of Time to File Petition. On February 28, 2014, LMC filed a Petition for a Formal Administrative Hearing, and on April 25, 2014, LMC filed an Amended Petition for Formal Administrative Proceeding (hereinafter “LMC Petition”), challenging the issuance of Marine Turtle Permit #14-157A to Chris Johnson. The LMC Petition states that the activities Chris Johnson proposes to conduct under his permit are not in the public interest as his activities would interfere with the research LMC conducts under contract with Palm Beach County, and would duplicate research that LMC employees have conducted for more than 20 years on the same beaches. The LMC Petition states that Chris Johnson has demonstrated no need for his research. The LMC Petition disputes that Chris Johnson has the necessary permits or concurrence from the appropriate park management units to conduct the research and claims that Chris Johnson submitted materially false information in his application for a permit. The LMC Petition states that following his termination by LMC, Chris Johnson misappropriated LMC’s leatherback sea turtle data set to start his own organization, and that Section 379.2431, Florida Statutes, Chapter 68E-1, and Rule 68-1.010, Florida Administrative Code, require denial of the permit. LMC has filed a separate civil action against Chris Johnson alleging, among other things, the misappropriation of turtle data from LMC. The Commission transferred the case to the Florida Division of Administrative Hearings (DOAH) on April 17, 2014, which was assigned DOAH Case No. 14-001651. The permittee, Chris Johnson, filed a Motion to Intervene in the case on April 29, 2014, and was granted party status on April 30, 2014. On June 3, 2014, Chris Johnson filed a Petition for Formal Administrative Proceeding (hereinafter “Johnson Petition’’) challenging the issuance of Marine Turtle Permit #14-211 to Dr. Manire at LMC, The Johnson Petition primarily states that the application for this permit was an attempt to keep Chris Johnson from being able to conduct his research, that Dr. Manire’s permit interferes with Chris Johnson’s permit, that Dr. Manire does not have the requisite knowledge and skill to conduct the permitted activities, that the public’s interest is best served by having Chris Johnson conduct the research and that Section 379.2431, Florida Statutes, and Rules 68E- 1002(2), 68E-1.004(6) and (17), and Rule 68-1.010, Florida Administrative Code, require denial of the permit. On June 12, 2014, the permittees, Dr. Charles Manire and LMC, filed a Petition to Intervene, and were granted party status on June 19, 2014. This case was transferred to DOAH and assigned DOAH Case No. 14-002806. On June 23, 2014, this case was consolidated with LMC v. Chris Johnson and FWC, DOAH Case No. 14-001651, which was pending before DOAH. On July 22, 2014, Christopher Johnson filed a motion seeking sanctions, including attorney’s fees, On September 8, 2014, LMC, stating that the administrative action is negatively impacting LMC’s civil action and the turtle nesting season has passed, voluntarily dismissed its petition without prejudice, thereby withdrawing its challenge to the issuance of the permit to Chris Johnson. On September 8, 2014, Dr. Manire withdrew his application for a permit. As the substantive issues in the case were rendered moot by LMC’s dismissal of its petition and Dr. Manire’s withdrawal of his application, on September 11, 2014, DOAH relinquished jurisdiction over the permitting issues back to the Commission. However, DOAH retained jurisdiction over the issue of attorney’s fees. WHEREFORE, as LMC has voluntarily dismissed its Petition, thereby withdrawing its challenge to the issuance of Marine Turtle Permit #14-157 to Chris Johnson, the permit is hereby GRANTED. As LMC and Dr. Charles Manire have voluntarily withdrawn their application for the permit, the issuance of Marine Turtle Permit #14-211 to Dr. Charles Manire at LMC is hereby DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida this 30 day of September, 2014. t= Eric Sutton Assistant Executive Director Florida Fish and Wildlife Conservation Commission Filed with The Agency Clerk MULL, This 2 day of-September, 2014 LIFE Oe Sbtobe 7 enrol ATTEST: yy % ono Agency Clerk Cyriteeesanst CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above FINAL ORDER has been furnished by U.S. Mail to Rachael M. Bruce, 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Alfred Malefatto, Lewis Longman and Walker, P.A., 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Edwin A. Steinmeyer, Lewis Longman & Walker, 315 S. Calhoun St Ste 830, Tallahassee, FL 32301-1872; Frank Rainer, Broad and Cassel, PO Box 11300, Tallahassee, FL 32302-3300; and David ge Broad and Cassel, 2 S Biscayne Blvd Ste 21, Miami, FL 33131-1800, on this day “ane Copies furnished to: Ryan Smith Osborne (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Michael Yaun (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Florida Bar No. 956953 Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (850) 487-1764 NOTICE OF APPELLATE RIGHTS The foregoing constitutes final agency action in this matter. Any party adversely affected has the right to seek judicial review of this Final Order pursuant to section 120.68 Florida Statutes, and rule 9.030(b)(1)(c) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Florida Fish and Wildlife Conservation Commission, Office of the General Counsel, and the appropriate District Court of Appeal within thirty (30) days of the date of that this Final Order is filed with the Agency Clerk. The Notice filed with the District Court of Appeal must be accompanied by the appropriate filing fee required by law.
Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.
The Issue Whether Respondent established that this case meets the criteria for the revocation of Petitioner’s Class I, Class II, and III captive wildlife permits, pursuant to Florida Administrative Code Rule 68A-5.004 and Chapter 372, Florida Statutes (2007).
Findings Of Fact Petitioner Oltz is the owner of Pangaea Productions, which she operates along with a related not-for-profit corporate entity, Wild Animal World. The businesses provide wildlife shows and exhibits, and care for the animals. Oltz became a volunteer at Pangaea in 1996, then an investor when she became partners with Grant Kemmerer after buying the interest of his previous partner, Thomas Batchelor, in November 1997. Oltz was first licensed, as she remembered, in 1999. Oltz is now and has been since 2001, the sole owner of Pangaea Productions. Respondent Commission is the state agency that issued Oltz licenses and/or permits, including a Class I license, pursuant to which she exhibited a leopard; a Class II license that authorized her to exhibit, among others, monkeys, servals, and cougars (also referred to as panthers); and a Class III license to exhibit animals that include a scorpion, an alligator, an albino Burmese python, a parrot, a porcupine, a fox, and an anteater. The categories of wildlife are established based on how dangerous each group is in Florida Administrative Code Rule 68A-6.002 (1). Respondent Commission seeks to revoke Oltz's licenses to possess, exhibit, and sell captive wildlife in all classes due to incidents that occurred in the years listed below under circumstances that will be described in more detail in the findings of fact that follow: 2006 Class II cougar attack on four-year old Aisha Elgazzar when Oltz was the animal handler; 2006 Escape of a Class II serval cat during a show that Oltz was conducting; 2001 Class I leopard attack on seven-year old Matthew Tully when Oltz was the exhibitor in charge of the leopard; 1999 Escape of a Class II serval cat from Oltz's home when she had no permit or required precautions. 1998 Class II cougar attack on five-year old Holly Moynahan while Oltz was the handler; 1998 Class II cougar attack on eight-year old Victor Parades while another employee of Pangaea Productions was the handler ; and 1998 Class II cougar bite of animal handler Kimberly Royal, another Pangaea employee. The Commission has issued over 5,000 Class I, II and III permits, approximately 300 in Class I, 4,000 in Class III, leaving the remainder of about 700 in Class II. From 2001 through 2005, 32 injuries to members of the public, and 58 to owners or handlers, or a total of 90 injuries were reported to the Commission. Of the 32 injuries to the public, 18 were caused by Class III, 8 by Class II, and 4 by Class I animals (including the 2001 leopard attack on Matthew Tully). Typically, Oltz’s wildlife shows begin with her showing and allowing people, usually children, to touch or pet the Class III animals. There have been no incidents, bites or other injuries from the Class III wildlife. Lieutenant Patrick Reynolds of the Commission implied in his testimony that Oltz had allowed a Class III large yellow python to escape into her neighbor's tree farm. His testimony that he received notice that the python was in the nursery on the border by Oltz's property, that the python had been given by the farmer to a friend by the time Reynolds got there, and given to another person by the time he contacted the farmer's friend is rejected in light of the absence of corroborating evidence, his apparent lack of impartiality in dealings with Oltz, and the animosity that has developed between the two of them over the years. Contradicting Reynolds, Captain John West, also a Commission staff person, testified that he was not aware of any Class III injuries and/or incidents involving Oltz. Before Oltz displayed the Class II cats, she warned her audiences that the next animal would be bigger and stronger, that they would not be allowed to touch it, and that they must remain seated, and stay calm and quiet. On November 18, 2006, Oltz displayed wildlife at a birthday party for a seven-year-old at the home of Francisco Unanue in Coral Gables, Florida. Approximately 40 children attended, many with their parents. Oltz had previously notified the homeowner of the requirement of shade for the animals and a tent had been set up on the edge of a swimming pool, which she also used as a barrier to prevent Oltz and the animals from being approached from behind since this was not a swimming party and no one was swimming. After each animal was taken out and showed to the audience, it was returned to its cage. The cages were stacked on either side of Oltz with the pool behind her. Following the typical sequence for her shows and after her warnings, Oltz took Georgia, a 60-pound cougar in a complete body harness on a leash, out of a cage. While Oltz was talking to and facing the audience, she admitted that she knew the cat was focusing its attention on something behind her but, assuming it was a float in the pool or some other object, she continued to face the audience and talk about the cougar. Four-year-old, Aisha Elgazzar came from behind the cages along the edge of the pool. The cat had been focused on Aisha and attacked her, causing injuries to her eye, cheek and ear that required stitches. Other adults at the party intervened to hit the cougar assist Oltz by pulling the cougar away from the child. Although Oltz testified that she tried to use cages to create barricade behind her and to keep audiences at least ten feet from the animals, based on measurements taken at the Unanues' home during his investigation and the videotape of the wildlife show at the birthday party, which was viewed during the hearing, Lieutenant Reynolds' opinion is credible that there was a twelve inch space between the kennels stacked three high and the pool, and that the some in the audience were as close as four feet in front of the show. Otlz pointed out that the videotape shows Aisha on her father's lap earlier during the show and implied that he should have kept her there. The videotape also shows Aisha and at least one other child on a glider near the other end of the pool during the wildlife show, but Oltz never looked behind her. After the November 2006 attack, Oltz received an order requiring her to suspend showing Class II animals and to surrender the cougar involved for euthanasia so that its brain could be examined to determine whether it had rabies. In an attempt to avoid the possibility of the seizure of Georgia, Oltz kept the cat with her at all times, and argued that testing Georgia approximately two weeks after the incident was pointless since Georgia had been vaccinated against rabies and that rabies shots for the child had to have started within 48 hours of the bite, if in fact infected. According to Oltz, the warrant to seize the cat was prompted by revenge and pressure from the injured child’s father. There was credible evidence that the health department might reasonably have issued the warrant to avoid having the child unnecessarily continue a series of rabies shots. There was also expert testimony that rabies shots developed for dogs and cats have, as far as has been documented, effective in preventing rabies in captive wildlife and the vaccination of captive wildlife is prudent. It is, however, an "off-label" use, meaning officially not approved having not been specifically developed for use on captive wildlife. On October 31, 2006, while Oltz was displaying a serval cat at a south Florida resort, an inflatable Halloween decoration behind her began collapsing and falling towards her. The frightened serval jumped out of her arms, Oltz let go of the leash, and the cat escaped. The cat was captured approximately seven weeks later. As a result of the incident, Oltz was charged and acquitted of a criminal offense for permitting the serval to escape. On December 8, 2001, Oltz was hired to exhibit animals at a Broward County park. She placed a one-year-old, 50 pound leopard in a corner that had shelter and what she believed were adequate barriers on two sides, bushes on one and a fence on the other. The leopard was in a full body harness chained to a post. Although she was the handler responsible for the leopard, Oltz turned her attention to another trainer who was handling a lemur to suggest how he might accommodate the wishes of a photographer to photograph the lemur in a tree. While Oltz was distracted, seven-year-old Matthew Tully came through the bushes and was bitten on his head by the leopard. As part of a plea bargain to settle criminal charges, Oltz surrendered her Class I license to the Broward County Court. While Oltz testified that her Class I license was permanently revoked, the evidence did not indicate that it was ever surrendered to the licensing agency for the state, the Commission, but she is not requesting, in this proceeding, nor and does not seek to possess a Class I license or permit. Although the cat that attacked Matthew was a leopard named China, Oltz reported falsely that it was a serval for fear of having to give up the leopard. She admitted that she tried to persuade her former partner, Kemmerer, who had moved to Pennsylvania, to say that the leopard was with him. Kemmerer reported her attempt to get the animal out of Florida to Reynolds. Oltz's other apparent motivation for making the false report that it was a serval rather than a leopard was that, at the time, she did not have enough property under lease to meet the size requirements for keeping a Class I animal. Oltz pled nolo contendere to making a false report and to other charges stemming from her negligence in the incident. Oltz testified that she booked the engagement that led to Matthew's injuries through an agent whom she had used before and whom she blames for knowing that the particular exhibit he requested was not suitable for an event like a company family picnic. She testified that the agent used her as a last minute substitute for petting zoo that canceled. Nevertheless, Oltz made a conscious decision to proceed with the exhibit even after she personally saw that it was inappropriate for the venue. She testified that it was her plan to compensate for the danger by limiting the time the animals were out of their cages. In October 1999, a serval cat named Foster escaped from Oltz’s home and was recovered after a couple of hours. She blames the escape on a visitor to her home who left the door open. Although Oltz testified that Kemmerer, who held all the licenses at that time, was living with her, she conceded that Kemmerer had a separate address-of-record, and that the escape was from her address-of-record. Oltz had not obtained, until after the incident, a personal pet license to keep Foster in her home rather than at the ranch area where the wildlife animals were allowed to be kept under the licenses. Only after the escape did she obtain the required license, and comply with the requirement to have a separate room for the serval with bars on the window, and a door with an automatic locking mechanism. In March 1998, Kimberly Royal, a handler who had worked for Pangaea Productions for four years, was bitten by Shasta, a cougar, and her finger was severed and surgically reattached. Oltz believes that the handler was at fault and should not have stuck her finger into the cage to scratch the cat and that handlers are not expected to have the same protections as members of the public. Commission witnesses agree that a higher duty of care is owed to the general public than to handlers and other employees, although they too should be protected from the negligence of others and incidents affecting employees must also be reported. There is no evidence that Oltz or Pangaea were responsible for Royal's injury. In May 1998, Randal Wilson, a handler for Pangaea Productions, with the consent of her then co-owner, Kemmerer, according to Oltz, allowed public contact with the same cougar that had bitten Royal, Shasta. The cougar bit Victor Parades, an eight-year-old, who with his parents was allowed to enter a barricade to take a picture standing behind the cat. Victor darted in front of the cougar towards his two or three-year-old sister, who had been barred because of her young age from the photo shoot, when he saw her climbing over the barricade. The cougar attacked Victor, biting into his thigh requiring emergency room stitching to close the wound. Wilson was also bitten on the hand trying to stop the cat. According to Reynolds, Kemmerer said he was out-of-town and denied that he made the decision to use Shasta around children after she had previously bitten a handler. Reynolds believed Kemmerer, not Oltz, who testified that she would have preferred to have Wilson use Scuffy, a cat that was more appropriate for use around children. She did not indicate that she made her preference known at the time, and in fact said that she was still learning the business, that Kemmerer was in charge and, therefore, that he is to blame. The Commission subsequently changed its rules so that photo shoots with dangerous animals are allowed only with contracted professionals, not with members of the general public. On December 23, 1998, Oltz was the handler at a wildlife show for a birthday party for a young child when five- year-old Holly Moynahan was attacked by the cougar, Chase. Oltz testified that Holly's mother dropped her off at the party and that she, Oltz, did know that her mother was not present. Holly, she testified in deposition, was unaccounted for when everyone sat down. Holly came from behind the kennels, between the kennels and some bushes. The cat, reportedly, jumped on Holly's back and its teeth sliced open her scalp from her head to the base of her neck. Subsequent criminal charges were resolved in a settlement agreement. For a probationary period of one year, Oltz was required to use a portable fence as a barrier between wild cats and the public. The judge required that the barrier be approved by Lieutenant Reynolds. There was a dispute between Oltz and Reynolds over the adequacy of the barriers she proposed to use. Reynolds testified that the barriers that he did not approve were a free- standing portable dog kennel approximately 30 inches tall and one made out of white PVC pipe with plastic ties. Ultimately, he approved one made with metal panels equipped with stanchions, that he believes was made to comply with his requirements, at the direction of Kemmerer not Oltz. Oltz testified that Reynolds deliberately held up approval of a barrier. The approved barrier was used for the year during which there were no injuries, then discontinued. Reynolds said the use of the barrier was to be continued, based on a policy set by Kemmerer before he left Pangaea, but that Oltz changed the policy. Oltz said the requirement was applicable only during the probationary period and that barriers give a false sense of security, as she said was later shown in a subsequent incident involving injuries to Victor Parades. Oltz testified that it is preferable to have a second trainer to watch what is happening behind the main trainer, but she only made that preference optional for her clients, offering lower prices if only one rather than two handlers attended a show. In 2007, for example, she testified that only 30 shows were booked at the higher cost for two trainers. In the same incident in 1998, Oltz was charged by the USDA of mishandling the lemur for agreeing to place the lemur in a tree. According to Oltz, the lemur was not mishandled and she only entered a consent agreement with the USDA to avoid a personal fine of up to $65,000 and another fine against Pangaea for up to $50,000. Instead, she entered into the agreement and paid a $5,000 fine. Oltz testified that Pangaea Productions had an audience of 191,632 people at public and private events in 1997, with no incidents of bites or escapes. In 1998, it had an audience of 41,417 at private shows and 186,150 at public shows or exhibitions, or a total of 227,567 people. That was the same year that Oltz says the handler was injured at her own fault and that the Victor Parades' injuries by the same cat that injured Royal, were Kemmerer's fault. It is also the year that Oltz was sentenced to probation, after being the sole handler when a cougar injured five-year old Holly. Inexplicably, Oltz testified that she was not licensed until, she believed, 1999. In 1999, when the serval cat, Foster, escaped from Oltz’s home for only a couple of hours due to what Oltz claimed was a visitor's negligence, 38,872 private attendees and 175,200 public attendees, or a total of 214,072 people saw Pangaea Productions shows and exhibits, with no injuries. In 2000, total attendance was 205,000 with no injuries to the public. That was during the time that Oltz was required to use a court- ordered barricade. In 2001, when Oltz took complete control of the business, 209,462 people attended shows and exhibits, and the leopard attacked Matthew Tully while she was the exhibitor in charge of the leopard. During 2002, one park discontinued the use of Pangaea Productions shows and exhibits due to the negative press related to Matthews's injuries. In 2002, the total number of people who attended shows and exhibits was 64,738, with no incidents of bites or escapes. In 2003, 47,197 people attended shows and exhibits, with no adverse incidents. In 2004, 44,995 people attended exhibits or shows with no attacks or bites. In 2005, 48,848 people attended the shows and exhibits with no injuries. In 2006, the total number of people attending shows or exhibits was 53,526, when Oltz handled the cougar that attacked Aisha Elgazzar, and the serval escaped on Halloween. After the cougar attack in November 2006, Oltz has continued to do shows with only Class III animals. As of the date of the hearing in 2007, she had conducted 312 shows with a total attendance of approximately 20,000, with no bites, injuries, or escapes. Over the years, Oltz has had an audiences of 1,307,326 people with four injuries to the public, or three one millionths of a percent of attendees injured. Oltz currently owns a spot nose guenon monkey, a vervet monkey, three serval cats, and two panthers, or a total of seven Class II animals; and 39 mammals, alligators, and snakes that are Class III wildlife. Oltz earns a salary of $35,000 a year, from approximately $200,000 a year in gross receipts to Pangaea Productions. She is a high school graduate, who also took psychology and mathematics classes at a community college. Oltz believes her business will be adversely affected by not having a cougar in the exhibits and shows, but that a serval could be substitute of and that the financial impact also could be mitigated by the use of monkeys, the second most frequently requested animal after the cougar. Oltz also asserted that at least five other competing businesses exhibit captive wildlife, including cougars, the animal most requested for the shows, and that her shows are safer because all of the animals she uses are hand raised and vaccinated for rabies. None of her animals has ever been found to have any diseases. By using the same animals over and over in shows, in contrast to some of her competitors, Oltz asserted that her animals learn the routine and behave better. Oltz’s animals are kept in larger than required cages, designed to resemble their native habitats and are subject to random inspections at least every four months by USDA. The concrete floors of the cages are sterilized weekly. Only after Hurricanes Katrina and Wilma did the Commission find unsafe damaged older wooden cages at Oltz's facility. The Commission has never had issues concerning the sanitation or cleanliness at current Pangaea location In response to Oltz's assertion that the Commission unfairly and arbitrarily targets her and overlooks violations by her competitors, Lieutenant Reynolds testified that she has had a lot more incidents than her competitors. One competitor is Batchelor, the former Pangaea partner from whom Oltz bought her interest, who reportedly had three bites from 1997 or 1998 to 2005. Reynolds investigated Batchelor for a cougar bite around 1997 to 1998, and a lemur bite in 2004, both to the members of the public. Reynolds believes that Batchelor now uses a stage and barricades for his shows but conceded that Batchelor probably does not carry a stage to birthday parties. In 2005, Batchelor was cited for improperly securing a cage after a ringtail lemur escaped and bit a worker at his ranch. Although Reynolds testified that he once "camped out at the State Attorney's Office" trying to get Batchelor prosecuted criminally, the Commission has not taken any action to restrict, suspend or revoke any licenses held by Batchelor. Another competitor is Vanishing Species, operated by Jeffrey and Barbara Harrod, in Broward County. Lieutenant Reynolds initially testified that he has not investigated nor heard of incidents involving that company that resulted in injuries to the public. On cross-examination, Reynolds did remember investigating when a Siberian tiger bit Mr. Harrod himself. Captain West recalled investigating the biting and scratching of a three-year-old, during a photo shoot, by the Harrods' monkey, for which they received a warning in February 2000. Eight months later, a five-year-old child was bitten on the chest while petting a cougar owned by Vanishing Species. A recommendation for non-renewal of the Harrod's license was, according to Captain West, forwarded to the administrative staff in Tallahassee, but their license was, nevertheless, renewed. Otlz testified that Lieutenant Reynolds overlooked violations by the Metro Zoo. Reynolds testified that after a tiger killed a handler at the Zoo, the final finding was that it was "handler error." Metro Zoo has had incidents that Reynolds considers not unusual for large wildlife facilities, including a kangaroo bite, and elephant that threw a handler against a rock resulting in broken collar bones, ribs and bruised spleen, and an orangutan that broke a veterinarian's arm. Despite Oltz's allegations and Reynold's discrepancies and claim of lack of memory, the record supports that conclusion that Oltz has had more incidents than her competitors. Even excluding the handler's bite and the Parades' attack where she was not the handler and blames Kemmerer for selecting the wrong cougar, her situation is distinguishable from that of her competitors. First, the attacks on the Elgazzar, Tully and Moynahan children were serious and resulted from the same negligent failure to pay adequate attention to the surroundings, and to her failure to take reasonable safeguards, including the use of barricades or another person to observe what was happening behind her. Second, Oltz blatantly and deliberately violated the law by identifying a different cat in the most recent attack and by keeping a serval as a pet without the proper permit and precautions. It is also a matter of great concern, if not an aggravating circumstance, that Oltz blames others: (1) when she failed to, at least give her opinion, about the appropriate cat to use; (2) when she did not refuse to display animals in what she knew to be an improper venue with children, (3) when she had not obtained the proper permit or installed the required precautions for keeping a Class II animal in her home, (4) when she suggested that the injuries to a child occurred because her mother dropped her off at a birthday party and that a father was at fault for not keeping his child on his lap throughout her show. Her attitude and priorities, as well as her disregard for the law, will be troublesome for the Commission, especially if Reynolds in the investigator assigned to her area and if she continues to have a captive wildlife permit.
Recommendation Based upon the foregoing Findings of Facts found and Conclusions of Law reached, it is hereby RECOMMENDED that a final order be entered which revokes Class I and II captive wildlife permits and/or licenses issued to Corrine Oltz and/or to any related business entities. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2007. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Alan S. Ross, Esquire Robbins, Tunkey, Ross, Amsel, Raben Waxman & English, P.A. 2250 Southwest 3rd Avenue, 4th Floor Miami, Florida 33129 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050
The Issue Whether the Respondent's decision to deny renewal of Petitioner's Alligator Farming License and Alligator Farming Agent's License was proper under the following circumstances: After the entry of the Petitioner's nolo contendere plea to the charges that he committed a violation of Rule 39-25.042, Florida Administrative Code, the trial court withheld an adjudication of guilt as to the charges filed against Petitioner.
Findings Of Fact On September 9, 1988, Petitioner was arrested and charged with Possession of Untagged Alligators, a misdemeanor, and a violation of Rule 39- 25.042, Florida Administrative Code. Petitioner pleaded nolo contendere to the charge on February 22, 1989. Adjudication of guilt was withheld by the court and Petitioner was fined $357.50. Petitioner applied for a renewal of his alligator farming license and alligator farming agent's license on June 20, 1989. Respondent denied Petitioner's application on June 21, 1989.
Recommendation Based upon the foregoing, it is RECOMMENDED: 1. That the Petitioner's application to renew its licenses be denied. DONE and ORDERED this 3rd day of January, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990. COPIES FURNISHED: Colonel Robert H. Brantly Executive Director Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James Antista, Esquire General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James D. Sloan, Esquire LUCKY ELVER & SLOAN 461 Highway 29 South Post Office Drawer 2280 LaBelle, FL 33935 James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600
The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether Petitioner’s application for a license to possess Class II Wildlife for exhibition or public sale should be approved.
Findings Of Fact FWC is the state agency with exclusive jurisdiction to regulate all wild animal life in Florida. See Art. IV, § 9, Fla. Const.1 1 All references to the Florida Constitution, Florida Statutes, and Florida Administrative Code are to current versions that have not substantively changed as applied to the facts in this case. All persons who possess captive wildlife for the purposes of public display or public sale must have a license from FWC. See § 379.3761(1), Fla. Stat. By rule promulgated by FWC, categories of wildlife for which a license is required are broken down into three classes. See Fla. Admin. Code R. 68A- 6.002. Generally, a person cannot possess Class I animals for personal pets unless they came into their possession prior to 1988. Class I animals include 24 different species generally considered extremely dangerous, and include wildlife such as chimpanzees, gorillas, orangutans, baboons, leopards, jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and Komodo dragons. See Fla. Admin. Code R. 68A-6.002(1)(a). Class II animals include 38 different species that may, with a proper license, be possessed as personal pets or for commercial purposes. Class II animals have the potential to cause harm but not to the extent of Class I animals and include wildlife such as Howler monkeys, Patas monkeys, Vervet monkeys, Macaques, bobcats, wolves, wolverines, honey badgers, and alligators. See Fla. Admin Code R. 68A-6.002(1)(b). Class III animals include wildlife not listed as Class I or II. See Fla. Admin. Code R. 68A-6.002(1)(c). The application at issue in this case is Petitioner’s application, ID 75226, to possess, exhibit, or sell Class II wildlife. Petitioner’s application, dated September 9, 2019, identifies Macaques, Patas, Vervet, Grivet, and Green monkeys as species that he does not currently possess, put plans to possess. By letter to Petitioner dated February 5, 2020 (Denial Letter), FWC advised Petitioner that his application was being denied because of prior violations of law and FWC rules regulating wildlife. In particular, the Denial Letter states that on June 19, 2017, FWC investigator Rick Brown found Petitioner in possession of a Vervet monkey without a license. The Denial Letter explains that, on that same date, Petitioner told investigator Brown that Petitioner had sold a lemur, two squirrel monkeys, and an artic fox earlier in that year, but was unable to provide documents for those sales as required by FWC rule. According to the Denial Letter, Petitioner was issued misdemeanor citations for those violations and, on July 21, 2017, Petitioner received adjudication other than acquittal or dismissal for those violations. The Denial Letter also states that, during an investigation of Petitioner at a new location on February 13, 2018, conducted by FWC investigator Steve McDaniel, it was discovered that Petitioner had sold two ring-tail lemurs to an unlicensed individual on December 15, 2017, and that at the time of the sale Petitioner’s license was expired and was not otherwise valid for sales from Petitioner’s new location. The Denial Letter further states that as a result, Petitioner was issued a citation for selling the lemurs without a valid license and a written warning for selling to an unlicensed individual. According to the Denial Letter, on May 22, 2018, Petitioner received adjudication other than acquittal or dismissal for the citation. The Denial Letter concludes: Pursuant to Rule 68-1.010 [Florida Administrative Code], and due to facts stated above, your application has been denied. We are processing your application fee for a refund, and you should receive it within 21 days. During the hearing for this case, the factual basis set forth in the Denial Letter was demonstrated by a preponderance of the evidence provided by the testimony of FWC investigators Brown and McDaniel, the documentary evidence, and Petitioner’s own testimony. Indeed, the evidence showed that during an investigation conducted by investigator Brown on June 19, 2017, Petitioner was found to be in possession of a Class II Vervet monkey without a proper license. Petitioner has never had a Class II license. It was also demonstrated that, at the time of that investigation, Petitioner was unable to produce sales records for a lemur, two squirrel monkeys, and an arctic fox that he had sold earlier that year. While Petitioner provided some documents at the hearing purporting to be records related to those sales, they were insufficient to overcome the preponderance of the evidence in this case. At the hearing, Petitioner admitted that he paid the fine from the citation issued against him for possession of the Vervet and lack of sales records. In addition, it was shown by a preponderance of the evidence that on December 15, 2017, Petitioner sold two ringtail lemurs to an unlicensed individual under a Class III license that was expired and that, prior to its expiration, had only been valid at his previous location, instead of the new location where the sale had taken place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order denying Petitioner Gregory Nelson’s application for a license to possess Class II wildlife for exhibition or public sale. DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2020. COPIES FURNISHED: Gregory Nelson 23033 Brouwerton Road Howey-in-the-Hills, Florida 34737 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
The Issue Whether Petitioner is entitled to an award of attorney's fees as a prevailing small business party in an adjudicatory proceeding initiated by a state agency as provided under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, A.S., is the primary custodial parent of the child, A.S., who is now ten years old. At the time of the original incident, A.S. was a full time state wildlife law enforcement officer. On May 18, 1991, Respondent initiated a child protective services investigation in which resulted in the creation of FPSS Report 91-052785, wherein the Respondent proposed to confirm Petitioner as the perpetrator of abuse or neglect of his child. Petitioner requested and obtained a formal hearing before the Division of Administrative Hearings. This resulted in the issuance of a Recommended Order, dated February 28, 1992, wherein this Hearing Officer recommended that Petitioner's name be expunged from the Abuse Registry. The Respondent rejected the recommendation and issued a Final Order denying Petitioner's request for expungement. The Final Order was appealed to the Second District Court of Appeal and subsequently to the Supreme Court of Florida which reversed the Final Order of the Department. On remand from the Court, the Department issued a Final Order on Remand, dated January 20, 1995, which expunged Petitioner's name from the Abuse Registry. Petitioner is clearly the prevailing party in this matter.
