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DEPARTMENT OF COMMUNITY AFFAIRS vs CITY OF PALM COAST, 10-009050GM (2010)
Division of Administrative Hearings, Florida Filed:Palm Coast, Florida Sep. 13, 2010 Number: 10-009050GM Latest Update: Jul. 27, 2011

Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.

Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-145 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of » 2011. By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Catherine D. Reischmann, Esq. Debra S. Babb-Nutcher, Esq. Gregg A. Johnson, Esq. Brown, Garganese, Weiss & D’agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, Florida 32802 creischmann@orlandolaw.net dbabb@orlandolaw.net gjohnson@orlandolaw.net Reginald L. Bouthillier, Jr., Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7742 bouthillierr@gtlaw.com \ Paula Ford tga Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 twreeseesq@aol.com Marcia Parker Tjoflat, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 mpt@papmet.com M. Lynn Pappas, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 Ipappas@papmet.com Linda Loomis Shelley, Esq. Fowler White Boggs & Banker, PA. P.O. Box 11240 Tallahassee, Florida 32302 Ishelley@fowlerwhite.com Lynette Nort, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us FINAL ORDER NO. DCA 11-GM-145

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ANGELA SAMUELS | A. S. vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 95-001476F (1995)
Division of Administrative Hearings, Florida Filed:Sarasota, Florida Mar. 22, 1995 Number: 95-001476F Latest Update: May 01, 1995

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.

USC (1) 5 U.S.C 504 Florida Laws (3) 120.57120.6857.111
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RAY HADDOCK AND GREYHOUND BREEDERS ASSOCIATION OF FLORIDA vs. FLORIDA GAME AND FRESH WATER FISH COMMISSION, 86-003341RP (1986)
Division of Administrative Hearings, Florida Number: 86-003341RP Latest Update: May 19, 1987

Findings Of Fact Stipulation The parties have stipulated to the following: There was no necessity for taking of live testimony on the scheduled hearing date of January 13, 1987. The Petitioners are substantially affected by the pending rule and are proper parties to this proceeding. The Division of Administrative Hearings has no jurisdiction to determine either Florida or federal constitutional questions which may be pending in this matter. The constitutionality of the proposed or pending rule is a matter that may be raised in Court for the first time should either party appeal the decision made herein or institute a separate proceeding concerning the constitutionality of the proposed rule. The Commission currently issues permits to out-of-State individuals or businesses for the purpose of bringing jack rabbits or hares into the State. According to the records and best estimates of the Commission, there are five importers who import into the State approximately 50,000 jack rabbits or hares per year. These, in turn, are delivered to approximately 5,000 greyhound trainers, breeders and ranches. None are released into the wild. Prior to the passage of 86-179, Laws of Florida, which provides that it is an unlawful cruelty to animals, called "baiting," to train racing greyhounds with live animals, the majority of racing greyhounds were trained with live jack rabbits. This involves the chasing of the jack rabbit by the greyhound, which usually catches it and kills it. The Commission passed the rule described herein, but continues to issue importation permits pending a determination of the validity of the rule. If determined valid, issuance will cease. The Commission possesses, and there shale be entered into evidence, its biologist's report on jack rabbits in the State of Florida. Each party may fairly comment on the report. The Petitioners and all those similarly situated will suffer substantial economic impact if they are unable to utilize jack rabbits in the training of racing greyhounds. This is true whether the jack rabbit is living or dead at the time of training. It is the Commission's position that this impact is as a result of the enactment of 86-179, Laws of Florida, and not its rule. (End of Stipulation.) Effective October 1, 1986, Florida Statutes 828.122 was amended by 86- 179, Laws of Florida. That amendment changed the definitions of "animal" and "baiting" to prohibit the use of live animals in the training of racing greyhounds. On August 18, 1986, the Commission published its proposed Rule 39- 12.011 to "supplement legislative prohibitions enacted in 86-179, Laws of Florida." The proposed rule read as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.) to train racing greyhounds. The Executive Director may issue permits authorizing the importation, possession or use of such live hares or jack rabbits for scientific or educational purposes." After publication of the proposed rule and the filing of the subject petition, the Commission promulgated an amended version of the rule, duly noticed, which is now pending. That proposed rule reads as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.), except as authorized by permit issued in accordance with Rule 39-9.002, Florida Administrative Code." The proposed rules challenged in this proceeding were, as indicated by the publication in the Florida Administrative Weekly, proposed under specific authority of Article IV, Section 9 of the Florida Constitution, Sections 372.265 and 372.021, Florida Statutes. Thus, the Commission is apparently, at the outset at least, proposing the rule under both its Constitutional authority as well as the supposed legislative authority to enact the subject rule. The Constitutional provision cited above, as well as Section 372.265, Florida Statutes, and Chapter 86-179, Laws of Florida, is cited in the Notice of the Proposed Rule Enactment as being the "law implemented" by the proposed rule. The Commission has thus elected to promulgate rules in accordance with the procedures contained in Chapter 120, Florida Statutes, the Administrative Procedure Act. The jack rabbit, and more specifically the black-tailed jack rabbit, imported into Florida for the purposes of greyhound training in the past, is a species of wild animal life indigenous to arid or semi-arid areas lying west of the Mississippi River. It has historically been imported into Florida for the above-mentioned purpose and some small numbers have escaped captivity and there is a population of an unknown size existing in the wild in the south-central or southern portion of the State. There is no question that she jack rabbit, the subject of the proposed rule, is a species of "wild animal life."

Florida Laws (4) 120.52120.54120.68828.122
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LEE LIGHTSEY vs FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, 19-005210F (2019)
Division of Administrative Hearings, Florida Filed:Sebring, Florida Sep. 30, 2019 Number: 19-005210F Latest Update: Apr. 23, 2020

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)

Florida Laws (5) 120.569120.57120.595120.6857.111 Florida Administrative Code (3) 28-106.10128-106.10268-1.010 DOAH Case (4) 05-4644F16-576618-542819-5210F
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MARTIN AND LINDA PARLATO vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 08-000849 (2008)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida Feb. 19, 2008 Number: 08-000849 Latest Update: Jan. 10, 2025
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JAMES L. POSEY vs FLORIDA GAME AND FRESH WATER FISH COMMISSION, 89-004700 (1989)
Division of Administrative Hearings, Florida Filed:LaBelle, Florida Aug. 31, 1989 Number: 89-004700 Latest Update: Jan. 03, 1990

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

Florida Laws (4) 120.57120.60775.083921.187
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DEPARTMENT OF COMMUNITY AFFAIRS vs PUTNAM COUNTY, 07-003773GM (2007)
Division of Administrative Hearings, Florida Filed:Palatka, Florida Aug. 22, 2007 Number: 07-003773GM Latest Update: Jan. 10, 2025
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BERT ALLEN WAHL, JR. (6802 N HIGHLAND AVE) vs FLORIDA GAME AND FRESH WATER FISH COMMISSION, 98-004975 (1998)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Nov. 05, 1998 Number: 98-004975 Latest Update: Apr. 05, 2000

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

Florida Laws (1) 120.57 Florida Administrative Code (2) 68A-5.00468A-6.002
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DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES vs QUALITY POULTRY AND SEAFOOD, INC., 93-004856 (1993)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Aug. 25, 1993 Number: 93-004856 Latest Update: Jul. 08, 1994

The Issue The issue in this case concerns whether the Respondent violated Section 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate administrative fine to be imposed.

Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 1221 Northwest 40th Avenue, Lauderhill, Florida 33313, and holds Food Permit No. 55403, pursuant to Section 500.12, Florida Statutes. On February 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 63 pounds of uninspected meat product, including cow feet, cow tails, cow head meat, goat stomachs, and beef blood. Goat stomachs may not be sold as human food under any circumstances in the State of Florida. The stomachs at issue were also adulterated with ingesta, or the contents of the stomach at the time the animal was slaughtered. Respondent purchased the meat at issue from a farmer in Avon, Florida, and had sold approximately 415 pounds of the same product to its customers prior to the Compliance Officer's inspection. 1/ At the time of Respondent's selling and offering for sale of the adulterated and uninspected meat products, Respondent's owner was aware of the illegality of his actions. By means of the Department's letter dated June 2, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of 253 pounds of uninspected goat meat. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and tuberculosis. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products.

Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by selling uninspected animal products and adulterated animal products: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.

Florida Laws (3) 120.57500.12585.007
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