17-005622 Kimberly Wysong vs. Florida Fish And Wildlife Conservation Commission Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, June 1, 2018.

Summary: Petitioner proved by a preponderance of the evidence her entitlement to the requested license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY WYSONG,

Petitioner,

vs. Case No. 17 - 5622

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to n otice, a final hearing was held in this case

on December 20, 2017, by video teleconference at sites in

Tallahassee and Tampa, Florida , before the Honorable Francine M.

Ffolkes, a designated administrative law judge of the Division

of Administrative Hearing s (DOAH).

APPEARANCES

For Petitioner: William John Cook, Esquire

Barker and Cook , P.A.

Suite 1040

501 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent: Tyler N. Parks, Esquir e

Bridget Kelly McDonnell, Esquire

Florida Fish and Wildlife

Conservation C ommission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the

Petitioner, Kimberly Wysong, is entitled to approval of her

application to add authorization for the family giraffidae to

her license to possess Class I and/or Class II wildlife for

exhibition o r public sale.

PRELIMINARY STATEMENT

On January 30, 2017, the Respondent, Florida Fish and

Wildlife Conservation Commission (Agency or FWC), received the

PetitionerÓs application to add authorization for the family

giraffidae to her license to possess Clas s I and/or Class II

wildlife for exhibition or public sale (Application ID 69969).

The Agency denied her request on May 26, 2017, on the grounds

that she did not have at least 1,000 hours in the care, feeding,

handling and husbandry of giraffidae and othe r similar species.

On June 15, the Petitioner filed a Petition for Administrative

Proceeding, which was referred to DOAH on October 13.

The parties filed the Joint Prehearing Stipulation on

December 11 and their Joint Exhibits on December 15. The final

hearing was held on December 20. At the final hearing, the

partiesÓ Joint Exhibits 1 through 1 4 were admitted into

evidence. The Petitioner presented the testimony of Rhudy

Holly, owner/operator of Micanopy Zoological Preserve; and the

Petitioner also t estified on her own behalf. The Agency

presented the testimony of Steven McDaniel, Investigator

assigned to the Captive Wildlife Office.

A one - volume Transcript of the final hearing was filed on

January 10, 2018. The parties filed proposed recommended

or der s , which were considered in the preparation of this

Recommended Order.

FINDING S OF FACT

The Parties

1. The Petitioner currently holds a license to handle

certain Class I and/or Class II animals , e.g., Class I baboons

and Class II primates. She is curr ently employed by Jerry

Holly, and along with other full - time and part - time employees,

takes care of a number of exotic animals.

2. The Agency is responsible for determining if applicants

meet the criteria for issuance of a license, permit or other

autho rization to possess giraffidae under Florida Administrative

Code R ules 68A - 6.002(3), 68A - 6.0011 and 68A - 6.022 .

The Application

3. On January 25, 2017, the Petitioner wrote to the Agency

requesting to add giraff idae to her license. The application

inclu ded two letters of recommendation and a spreadsheet

detailing 1,003 hours spent working with a giraffe owned by

Rhudy Holly. The information that the Petitioner sent to the

Agency is the type of information she and others in her industry

typically submit when requesting authorization to handle other

animals. In response to a request for additional information,

the Petitioner provided clarification of her hours and a copy of

her current license.

4. The spreadsheet documented hours spent with the giraffe

between October 19, 2015, and January 23, 2017. The documented

time averaged six hours per day and showed that the time was

spent doing a combination of enrichment, cleaning,

husbandry/handling, and feeding. The Petitioner testified that

she noted her h ours on a daily basis and then entered the hours

into an Excel spreadsheet at the end of each week.

5. For the first two weeks, the Petitioner started working

with the giraffe under the supervision of its owner, Rhudy

Holly. Mr. Holly has had his licens e to handle giraffes for at

least five years and started working with them around 2007.

Mr. Holly taught the Petitioner how to take care of the giraffe.

He went over the basics until he was comfortable that she

understood the giraffeÓs behavior and manne risms and she could

safely handle the giraffe. He checked on her progress

periodically. He also has an employee who works with the

giraffe who was also available to the Petitioner for any

questions or help with the giraffe.

6. The Petitioner described a typical day working with the

giraffe. In the mornings, she spent about two and a half hours

cleaning the feed area, then gathering and loading fresh feed.

Cleaning the feed area requires shifting the giraffe out of the

barn to his outdoor enclosure. C oaxing the giraffe to leave the

barn and go outside can take up to 45 minutes because the

giraffe is a shy and skittish animal and cannot be rushed. Once

the giraffe is outside, the Petitioner cleans the feed area

including his troth and buckets and then refills them. She then

coaxes the giraffe to come back into the barn using cut branches

(ÐbrowsesÑ), romaine lettuce or various fruits. Mr. Holly

testified that two and a half hours was typical for these

activities when you are learning how to handle and take care of

the giraffe.

7. At midday, the Petitioner returned for about two hours

to clean the feed area of the barn again and also to pressure

wash the barn. Mr. Holly testified that the barn is large and

two hours was not an unusual amount of time to spend on these

activities.

8. In the afternoon, the Petitioner returned for about one

and a half hours to clean and shift the giraffe back into the

barn. Each visit included enrichment. Enrichment consisted of

spending time interacting with the gira ffe, which can include

stimulation and entertainment using branches, treats, and even

spoons hung on the fence for play.

9. The Petitioner was able to devote an average of six

hours per day to taking care of the giraffe because she has a

f ull - time employ ee who helps take care of the primates and a

part - time employee who helps with cage repairs and maintenance.

The Denial

10. On May 26, 2017, the Agency issued its Notice of

Denial. It stated that because the PetitionerÓs current job is

full - time , Ðit d oes not appear that [she] had time to obtain the

required experience hours for giraffidae.Ñ The denial went on

to state that the Agency Ðhas reason to believe that six hours

per day is an unreasonable amount of time to spend caring for

one giraffe and the refore, that these hours have been

falsified.Ñ Furthermore, the denial stated that the Petitioner

Ðin a conversation with FWC Investigator Steven McDaniel . . .

stated [she] spent about half of the documented experience hours

sitting and observing the gir affe.Ñ The denial states that

Ðobservation timeÑ cannot be claimed to meet the experience

requirements of the rule.

11. The Petitioner and Mr. Holly testified that there were

no chairs at the giraffeÓs barn and enclosure for Ðsitting.Ñ In

addition, Mr. Holly testified that references to observation was

time spent using branches and other treats for enrichment, to

learn and understand the giraffeÓs Ðbody language and behavior,Ñ

and Ðwas also a way for them to sort of build a bond.Ñ In his

opinion these activities were part of husbandry, i.e.,

Ðeverything that goes into taking care of that giraffe.Ñ The

Agency did not offer any contrary factual or expert testimony

regarding husbandry of giraffes.

12. The Petitioner testified persuasively that she

expend ed the time required to obtain her experience hours, that

she did not falsify the hours submitted in her application, and

that she did not spend half of her hours just sitting and

observing the giraffe. Investigator McDanielsÓ testimony showed

that the Ag ency only made a cursory attempt to verify the

PetitionerÓs hours. The Agency did not contact Mr. Holly,

although he wrote a letter of recommendation as part of the

PetitionerÓs application; and Investigator McDaniel did not

actually observe the Petitione rÓs interactions with the giraffe.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the subject matter of this

proceeding and the parties under sections 120.569 and 120.57(1) ,

Florida Statutes (2017) .

14. The Petitioner has the burden of proving her

ent itlement to the license by a preponderance of the credible

evidence. See DepÓt of Banking & Fin. v. Osborne Stern , 670 So.

2d 932, 935 (Fla. 1996); DepÓt of Transp. v. J.W.C. Co., Inc. ,

396 So. 2d 778, 788 (Fla. 1st DCA 1981). The Petitioner carried

her burden.

15. Under r ule 68A - 6.002 giraffes are Class II wildlife.

Rule 68A - 6.022(5) requires applicants to have at least 1,000

hours over one year of Ðsubstantial practical experienceÑ in the

Ðcare, feeding, handling and husbandryÑ of the species for whic h

the permit is sought. Based on the above findings of fact and

the evidence adduced at the hearing, the Petitioner met this

requirement.

16. Rule 68A - 6.022(5) also requires that an applicant

provide:

c. References of no less than two (2)

individuals, no more than one of which may

be a relative of the applicant, having

personal knowledge of the applicantÓs stated

experience. One of these references must be

licensed by the commission for wildlife of

the same family and the same or higher class

for which the applicant is seeking

authorization or a representative of a

professional organization or governmental

institution. Examples of such organizations

or institutions include, but are not limited

to, universities, public service agencies,

zoological assoc iations, herpetological

societies and veterinarians.

d. Additional documentation may include

records of prior permits for the keeping of

captive wildlife, employment records, and

any other competent documentation of the

requisite experience.

* * *

4. Providing false information to document

the applicantÓs experience, by the applicant

or any reference, is prohibited as provided

in Sections 837.012 and 837.06, F.S.

17. The evidence adduced at the hearing proved that the

Petitioner provided all the requ ired information to obtain the

license. The evidence adduced at the hearing also showed that

neither the Petitioner nor Mr. Holly provided Ðfalse information

to document the [PetitionerÓs] experience.Ñ

RECOMMENDATION

Based upon the foregoing Findings of F act and Conclusions

of Law, it is,

RECOMMENDED that FWC enter a final order granting the

PetitionerÓs request to add giraffidae to her license to possess

Class I and/or Class II wildlife for exhibition or public sale.

DONE AND ENTERED this 13th day of Feb ruary , 2018 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of February 2018.

COPIES FURNISHED:

William John Cook, Esquire

Barker and Cook , P.A.

Suite 1040

501 East Kennedy Bouleva rd

Tampa, Florida 33602

(eServed)

Tyler N. Parks, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Bridget Kelly McDonnell, Esquire

Florida Fish and Wildlife

Conservatio n Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Eugen e Nichols "Nick" Wiley II, Executive Director

F lorida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florid a 32399 - 1600

(eServed)

Harol d G. "Bud" Vielhauer, General Counsel

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.