15-005654 Carla Santangelo vs. Florida Fish And Wildlife Conservation Commission
 Status: Closed
Recommended Order on Thursday, June 30, 2016.


View Dockets  
Summary: Petitioner proved her entitlement to a Captive Wildlife Animal Farm license.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CARLA SANTANGELO,

10Petitioner,

11vs. Case No. 15 - 5654

17FLORIDA FISH AND WILDLIFE

21CONSERVATION COMMISSION,

23Respondent.

24_______________________________/

25RECOMMENDED ORDER

27The final he aring in this case was held by video

38teleconference on May 17, 2016, at sites in Tallahassee and West

49Palm Beach, Florida, before Bram D. E. Canter, Administrative Law

59Judge of the Division of Administrative Hearings ("DOAH").

69APPEARANCES

70For Petitioner: Raymond M. Masciarella II, Esquire

77Raymond Masciarella II, P.A.

81Summit Building, Suite 340

85840 U.S. Highway 1

89North Palm Beach, Florida 33408

94For Respondent: Ry an Smith Osborne, Esquire

101Florida Fish and Wildlife

105Conservation Commission

107620 South Meridian Street

111Tallahassee, Florida 32399 - 1600

116STATEMENT OF THE ISSUE

120The is sue for determination in this case is whether

130Petitioner is entitled to a Captive Wildlife Game Farm License

140from the Florida Fish and Wildlife Conservation Commission

148(ÐFWCÑ).

149PRELIMINARY STATEMENT

151On May 15, 2015, Petitioner submitted an application for a

161Captive Wildlife Game F arm L icense to FWC. On August 6, 2015,

174FWC sent written notice to Petitioner that her application was

184denied. Petitioner filed a petition to challenge the denial of

194her application and the matter was referred to DOAH to conduct an

206evidentiary hearing.

208At the final hearing , Petitioner testified on her own

217behalf. Petitioner Ós Exhibits 1 and 2 were admitted into

227evidence. Exhibit 2 was not admitted for the truth of the

238matters asserted. FWC presented the testimony of Lt. Loren

247Lowers. FWC attempted to present the testimony of Investigator

256Jamie Holcomb by telephone, but there was no notary public

266present with the witness to administer the oath as required by

277Florida Administrative Code Rule 28 - 106.213(5)(b). Therefore,

285Mr. Hol combÓs testimony was not permitted.

292The one - volume Transcript of the final hearing was filed

303with DOAH. The parties submitted proposed recommended orders

311that were considered in the preparation of this Recommended

320Order.

321FINDINGS OF FACT

324The Parties

3261 . Petitioner, Carla SantAngelo, is a natural person who

336resides at 5260 Bluff Hammock Road, L orida, Highlands County,

346Florida.

3472. FWC was created pursuant to Article IV, section 9 of the

359Florida Constitution, to Ðexercise the regulatory and executive

367po wers of the state with respect to wild animal life and fresh

380water aquatic life.Ñ FWC has exclusive jurisdiction to regulate

389the possession, sale, and display of captive wildlife in Florida.

399The Application

4013. PetitionerÓs application lists the locatio n of the

410proposed game farm as 5260 Bluff Hammock Road, L orida, which is

422also her residential address. Petitioner proposed to rear,

430possess, exhibit, and sell fallow deer, sika deer, axis deer and

441blackbuck antelope, all of which are designated by the FWC as

452Class II Wildlife.

4554. Florida Administrative Code Rule 68A - 6.0022(5)

463establishes the criteria for obtaining a permit to possess

472Class II wildlife. It provides in pertinent part:

480(a) Age Requirement: Applicants to possess

486Class I or Class II wildli fe shall be at

496least 18 years of age.

501(b) Applicants shall not have been

507convicted of any violation of captive

513wildlife regulations or venomous reptile or

519reptile of concern regulations involving

524unsafe housing of wildlife or that could

531potentially endan ger the public; any

537violation involving the illegal

541commercialization of wildlife; any violation

546involving cruelty to animals; or any

552violation involving importation of wildlife

557within three (3) years of the date of

565application.

566* * *

569(d) Experience a nd examination requirements

575for Class II permits:

5791. Applicants may qualify for a permit for

587Class II wildlife by documenting one year of

595experience (to consist of no less than 1000

603hours) as defined in subparagraphs 68A -

6106.0022(5)(c)1. - 4., F.A.C.

6145. I t was stipulated by the parties that Petitioner

624satisfied the requirements in rule 68A - 6.0022(5).

6326. In its letter of denial, the reason given by FWC for

644denying PetitionerÓs application was ÐFWC has reason to believe

653you were operating the illegal game farm with your husband . Ñ

6657. PetitionerÓs husband, Daniel SantAngelo, is the

672president of Okeechobee Outfitters. He was charged and convicted

681of operating a game farm at 5260 Bluff Hammock Road without a

693license. The date of his conviction is not in the record, but is

706likely sometime in 2015.

7108. Okeechobee Outfitters was not charged or convicted of

719operating a game farm without a license.

7269. Petitioner was formerly the vice president, director,

734secretary, and treasurer of Okeechobee Outfitters. Her corporate

742functions included disbursing checks on behalf of the

750corporation, acting as secretary, cooking, answering phone calls,

758answering e - mails, cleaning, paying electric bills, and booking

768hunts.

76910. FWC asserted that PetitionerÓs position and activ ities

778with the corporation were tantamount to her personal possession

787of Class II wildlife without a permit.

79411. Daniel SantAngelo owns the property located at 5260

803Bluff Hammock Road. Okeechobee Outfitters owns property at 5229

812Bluff Hammock Road, High lands County, Florida , and a site located

823at Brighton Seminole Indian Reservation, Okeechobee County,

830Florida.

83112. Petitioner has no ownership interest in any property

840owned by Okeechobee Outfitters.

84413. Petitioner is not a shareholder of Okeechobee

852Ou tfitters.

854CONCLUSIONS OF LAW

85714. All persons who possess captive wildlife for the

866purpose of public display or public sale must have a license from

878the Commission. See § 379.3761(1), Fla. Stat.

88515. As the applicant for the permit, Petitioner bears the

895burden of proving entitlement to the permit by a preponderance of

906the evidence. See Fla. DepÓt of Child . & Fam s . v. Davis Family

921Day Care Home , 160 So. 3d 854, 856 (Fla. 2015).

93116. Although Petitioner meets the qualifications set forth

939in rule 68A - 6.00 22(5), FWC contends that Florida Administrative

950Code Rule 68 - 1.010 must also be considered and it provides a

963separate ground for denial of the application.

97017. Rule 68 - 1.010(5) establishes factors to be considered

980by FWC in determining whether to deny a license:

989(a) The severity of the conduct

995(b) The danger to the public created or

1003occasioned by the conduct ;

1007(c) The existence of prior violations of

1014Chapter 379, F.S., or the rules of the

1022Commission;

1023(d) The length of time a licensee or

1031permittee ha s been licensed or permitted;

1038(e) The effect of denial, suspension,

1044revocation or non - renewal upon the applicant,

1052licensee, or permitteeÓs existing livelihood;

1057(f) Attempts by the applicant, licensee or

1064permittee to correct or prevent violations,

1070or th e refusal or failure of the applicant,

1079licensee or permittee to correct or prevent

1086violations;

1087(g) Related violations by an applicant,

1093licensee or permittee in another

1098jurisdiction;

1099(h) The deterrent effect of denial,

1105suspension, revocation or non - rene wal;

1112(i) Any other mitigating or aggravating

1118factors that reasonably relate to public

1124safety and welfare or the management and

1131protection o f natural resources for which the

1139Commission is responsible.

114218. FWC relies primarily on factor (c) above, the e xistence

1153of prior violations of c hapter 379 , Florida Statutes, or the

1164rules of the Commission. FWC contends that Petitioner, through

1173her position with Okeechobee Outfitters, possessed wildlife

1180without a permit in violation of FWC rules.

118819. Petitioner a rgues that rule 68A - 6.0022, rather than any

1200provision of rule 68 - 1.010, is controlling based on the legal

1212principal that a specific rule covering a particular subject

1221matter controls over a general rule covering the same subject in

1232general terms. See Stor emel v. Columbia Cnty . , 930 So. 2d 742

1245(Fla. 1st DCA 2006). However, rule 68 - 1.010 clearly incorporates

1256the eligibility requirements of rule 68A - 6.0022. See Fla. Admin.

1267C ode R . 68 - 1.010(1)(b). Statutes and rules must be construed

1280together to harmonize t he statutes and give effect to the

1291Legislature's intent. Bd. of Trustees, Jacksonville Police &

1299Fire Pension Fund v. Lee , 189 So. 3d 120, 126 (Fla. 2016).

1311Reading rule 68 - 1.010 in pari materia with rule 68A - 6.0022 shows

1325a clear intent to apply the factor s in rule 68 - 1.010(5) in

1339reviewing an application for a license in addition to the

1349eligibility requirements in rule 68A - 6.0022.

135620. Although 68 - 1.010(5)(c) is applicable, the record

1365evidence does not support FWCÓs contention that Petitioner had

1374prior vio lations of chapter 379 or the rules of the Commission.

1386In essence, FWC is a sserting that, if it had brought a case

1399against Petitioner for illegally possessing Class II wildlife, as

1408it did against her husband, FWC would have been able to obtain a

1421convictio n against her. However, no case was brought against

1431Petitioner and it cannot simply be presumed that she would have

1442been convicted in a criminal proceeding for illegally possessing

1451wildlife.

145221. FWC argues that Okeechobee Outfitters is an alter ego

1462of Pe titioner based on her positions and functions at the

1473corporation, citing Dania Jai - Alai Palace, Inc. v. Sykes , 450 So.

14852d 1114 (Fla. 1984). However, piercing the corporate veil to

1495establish personal liability requires a showing that the

1503corporation was a mere device or sham to accomplish some ulterior

1514purpose, or is a mere instrumentality or agent of another

1524corporation or individual owning all or most of its stock, or

1535where the purpose is to evade some statute or to accomplish some

1547fraud or illegal purpos e. Id. at 1117 - 18. The record evidence

1560does not support any of these requirements for making a corporate

1571officer personally liable.

157422. Furthermore, any attempt to deny a license based on an

1585alleged past violation of law, as opposed to an actual crimin al

1597conviction or administrative determination of violation, begs the

1605question of when the applicant will be afforded due process to

1616contest the charge of a past violation. FWC suggests that it can

1628convert a licensing proceeding like the present one, in wh ich the

1640applicant has the burden to demonstrate by a preponderance of the

1651evidence that the applicant is entitled to the license, into an

1662enforcement proceeding in which FWC has the burden to prove by

1673clear and convincing evidence that the applicant violat ed the law

1684in the past .

168823. Even if this were allowable, FWC would not have met its

1700burden in this case to show that Petitioner violated the law in

1712the past by possessing wildlife without a license.

17202 4 . FWC also asserts that PetitionerÓs application can also

1731be denied for her noncompliance with rule 68 - 1.010(2)(c), which

1742pertains to the failure to comply with requirements of a

1752previously - issued license. Although Petitioner has no

1760previously - issued license, FWC states in its proposed recommended

1770order (b ut without reliance on any evidence presented at the

1781final hearing) that FWC interprets this rule to apply even to

1792persons who have not been issued licenses. FWC states that this

1803interpretation is reasonable because, otherwise, FWC could not

1811consider past violations when determining whether to grant a

1820license.

18212 5 . The construction of a rule by an agency charged with

1834the ruleÓs administration should not be overturned unless clearly

1843erroneous. Humana, Inc. v. DepÓt of Health & Rehab. Servs. , 492

1854So. 2d 38 8 (Fla. 4th DCA 1986). In this case, the FWCÓs

1867interpretation of rule 68 - 1.010(2)(c) is clearly erroneous

1876because it conflicts with the plain language of the rule, which

1887expressly applies to persons who have been issued licenses.

189626. Petitioner proved h er entitlement to the game farm

1906license.

190727. FWC complains that if it is determined that Petitioner

1917is entitled to a license under these circumstances , persons will

1927be encouraged to possess wildlife without a license and only

1937apply for a license after th ey are caught. However, this case

1949does not involve a person who was shown to have possessed

1960wildlife without a license prior to her application.

1968RECOMMENDATION

1969Based on the foregoing Findings of Fact and Conclusions of

1979Law, it is RECOMMENDED that Florida Fish and Wildlife

1988Conservation Commission issue the Captive Wildlife G ame F arm

1998L icense to Petitioner.

2002DONE AND ENTERED this 30th day of June , 2016 , in

2012Tallahassee, Leon County, Florida.

2016S

2017BRAM D. E. CANTER

2021Administrative Law Judge

2024Division of Administrative Hearings

2028The DeSoto Building

20311230 Apalachee Parkway

2034Tallahassee, Florida 32399 - 3060

2039(850) 488 - 9675

2043Fax Filing (850) 921 - 6847

2049www.doah.state.fl.us

2050Filed with the Clerk of the

2056Division of Administrative Hearings

2060this 3 0th day of June , 2016 .

2068COPIES FURNISHED:

2070Raymond M. Masciarella II, Esquire

2075Raymond Masciarella II, P.A.

2079Summit Building, Suite 340

2083840 U.S. Highway 1

2087North Palm Beach, Florida 33408

2092(eServed)

2093Tracey Scott Hartman, Esquire

2097Florida Fish and Wildlife

2101Conservation Commission

2103620 South Meridian Street

2107Tallahassee, Florida 32399 - 1600

2112(eServed)

2113Eugene Nichols ÐNickÑ Wiley II, Executive Director

2120Florida Fish and Wildlife

2124Conservation Commission

2126620 South Meridian Street

2130Tallahassee, Florida 32399 - 1600

2135(eServed)

2136Harold G. ÐBudÑ Vielhauer, General Counsel

2142Florida Fish and Wildlife

2146Conservation Commission

2148620 South Meridian Street

2152Tallahassee, Florida 32399 - 1600

2157(eServed)

2158NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2164All parties have the right to submit wr itten exceptions within

217515 days from the date of this Recommended Order. Any exceptions

2186to this Recommended Order should be filed with the agency that

2197will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 08/02/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 08/01/2016
Proceedings: Agency Final Order
PDF:
Date: 08/01/2016
Proceedings: Agency Final Order
PDF:
Date: 06/30/2016
Proceedings: Recommended Order
PDF:
Date: 06/30/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/30/2016
Proceedings: Recommended Order (hearing held May 17, 2016). CASE CLOSED.
PDF:
Date: 06/21/2016
Proceedings: (Petitioner's Proposed) Recommended Order filed.
PDF:
Date: 06/20/2016
Proceedings: Florida Fish and Wildlife Conservation Commissions's Proposed Recommended Order filed.
PDF:
Date: 06/13/2016
Proceedings: Notice of Filing Transcript.
Date: 06/10/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 06/10/2016
Proceedings: Petitioner's Notice of Filing filed.
PDF:
Date: 06/01/2016
Proceedings: Notice of Appearance (Tracey Hartman) filed.
Date: 05/17/2016
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/16/2016
Proceedings: Petitioner's Trial Brief filed.
PDF:
Date: 05/16/2016
Proceedings: Joint Stipulation of Facts filed.
PDF:
Date: 05/16/2016
Proceedings: Transmittal Letter filed.
PDF:
Date: 05/13/2016
Proceedings: Order (denying Respondent's emergency motion to continue hearing).
PDF:
Date: 05/13/2016
Proceedings: Petitioner's Response in Opposition to Respondent's Emergency Motion to Continue Hearing filed.
PDF:
Date: 05/13/2016
Proceedings: Emergency Motion for Continuance filed.
PDF:
Date: 04/29/2016
Proceedings: Petitioner's Pre-hearing Statement filed.
Date: 04/22/2016
Proceedings: Petitioner's Exhibit List filed.  Confidential document; not available for viewing.
PDF:
Date: 04/18/2016
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 02/12/2016
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for May 17, 2016; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 02/11/2016
Proceedings: Joint Motion to Continue Hearing filed.
PDF:
Date: 02/11/2016
Proceedings: Joint Motion to Continue Hearing and Change Venue filed.
PDF:
Date: 02/02/2016
Proceedings: Order.
PDF:
Date: 02/02/2016
Proceedings: Respondent's Responses to Petitioner's First Request for Admissions filed.
PDF:
Date: 02/02/2016
Proceedings: Notice of Service of Response to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 01/26/2016
Proceedings: Petitioner's Motion to Compel the FWC to Comply with Petitioner's Discovery Requests filed.
PDF:
Date: 01/12/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 3, 2016; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 12/16/2015
Proceedings: Order Granting Continuance (parties to advise status by December 22, 2015).
PDF:
Date: 12/16/2015
Proceedings: Certification of Non-Objection filed.
PDF:
Date: 12/11/2015
Proceedings: Petitoner's Motion for Continuance filed.
PDF:
Date: 12/01/2015
Proceedings: Notice of Service of Response to Request for Production filed.
PDF:
Date: 11/16/2015
Proceedings: Notice of Taking Deposition (James Holcomb and George Wilson) filed.
PDF:
Date: 11/09/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/09/2015
Proceedings: Notice of Hearing by Video Teleconference (hearing set for January 12, 2016; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 11/04/2015
Proceedings: First Request for Admissions filed.
PDF:
Date: 11/04/2015
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 10/20/2015
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 10/20/2015
Proceedings: Petitioners Request for Production to Respondent filed.
PDF:
Date: 10/12/2015
Proceedings: Initial Order.
PDF:
Date: 10/09/2015
Proceedings: Petition for Administrative Proceeding filed.
PDF:
Date: 10/09/2015
Proceedings: Election of Rights filed.
PDF:
Date: 10/09/2015
Proceedings: Notice of Denial filed.
PDF:
Date: 10/09/2015
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
10/09/2015
Date Assignment:
10/12/2015
Last Docket Entry:
08/02/2016
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (2):

Related Florida Rule(s) (2):