19-006307 James Hammonds vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Tuesday, June 23, 2020.

Summary: FFWCC didn't prove unlawful sale of Capuchin monkey or transfer or possession of Macaque monkey. Possession/ownership needed for sale or transfer. A 2012 conviction for marmoset sale doesn't support denying wildlife licenses after 6 renewals.

S TATEMENT OF T HE I SSUE S

A. Did Respondent, Florida Fish and Wildlife Conservation Commissio n

(Commission) correctly deny the application of Petitioner, James Hammonds,

to renew his Game Farm License (Case No. 19 - 6307)?

B. Did the Commission correctly deny Mr. Hammonds ' application to

renew his L icense to Possess Class III Wildlife for Exhibitio n or Public Sale

(Case No. 19 - 6326)?

P RELIMINARY S TATEMENT

The Commission denied Mr. Hammonds ' separate applications to renew a

Game Farm License 1 and a License to Possess Class III Wildlife for

Exhibition or Public Sale. 2 The Notices of Denial (Notices) are identical, save

for two introductory paragraphs and the paragraph identifying which

application is denied. The Notices charge Mr. Hammonds with selling

wildlife, a Capuchin monkey, to an unlicensed entity in violation of Florida Administrative Code Rul e 6 8 A - 6.0023(7) .

3 The Notices also charge

Mr. Hammonds with unlawfully transferring a Rhesus Macaque monk ey and

violating section 379.3762, Florida Statutes (2017) , by unlawfully possessing

a Rhesus Macaque monkey. 4 Mr. Hammonds petitioned for a formal

adm inistrative hearing to contest both denials. The Commission referred the

dispute to the Division to conduct the requested hearings. The cases were

1 May 10, 2019, Notice of Denial; Application ID 69947; Case No. 19 - 6307.

2 August 16, 2019 , Notice of Denial; Application ID 69947; Case No. 19 - 6326.

3 All citations to Florida Administrative Code Rules are to t he 2017 version unless noted

otherwise. See Anderson v. Anderson , 468 So. 2d 528, 531 (Fla. 3d DCA 1985) (The forfeiture

statute in effect at date of decedent ' s death governs.); Kraft Dairy Group v. Sorge , 634 So. 2 d

720, 721 (Fla. 1st DCA 1994) (The fee s tatute in effect at the time of an injury governs

because amendments to substantive statute " may not be retroactively applied. " ) .

4 All citations to Florida Statutes are to the 2017 codification unless noted otherwise.

Anderson v. Anderson , 468 So. 2d 528 , 531 (Fla. 3d DCA 1985); Kraft Dairy Group v. Sorge ,

634 So. 2d 720, 721 (Fla. 1st DCA 1994) .

consolidated. The hearing was scheduled for February 26, 2020. After

granting one unopposed motion for conti nuance, the hearing was re -

scheduled to start May 14, 2020.

The undersigned conducted the hearing as scheduled. Mr. Hammonds

testified on his own behalf. Mr. Hammonds ' E xhibits 1 and 3 through 5 were

admitted into evidence. Mr. Hammonds also entered the E xhibits pre - marked

as Respondent ' s exhibits 3 and 4. The Commission presented testimony from

Robert O ' Horo. The transcript was filed May 26, 2020. The parties timely

filed proposed recommended orders. They have been considered in the

preparation of this R ecommended Order.

The Notice s list a violation of section 837.06, Florida Statutes (201 7 ) as

one reason for denying Mr. Hammonds' renewals . The Commission does not

advance this position in its Proposed Recommended Order. The Commission

has, therefore, aba ndoned that claimed basis for denial. Cf. D.H. v. Adept

Cmty. Servs. , 271 So. 3d 870 (Fla. 2018) (Claims of error not raised in initial

brief deemed abandoned); Wickham v. State , 124 So. 3d 841, 860 (Fla. 2013)

( Failure to pursue a claim amounts to abandon ment of the claim.); Downs v.

Moore , 801 So. 2d 906, 912 , n. 9 (Fla. 2001) (Failure to propose jury

instruction on an issue is deemed abandonment of the issue). Section 837.06 prohibits making a false written statement intended to mislead a public servant in the performance of official duties. In any event, the Commission

did not prove a violation of the statute.

F INDINGS OF F ACT

The Parties

1. Article IV, Section 9 of the Florida Constitution creates the

Commission. It charges the Commission to " exercise the regulatory and

executive powers of the state with respect to wild animal life and fresh water

aquatic life, and … exercise regulatory and executive powers of the state with

respect to marine life, … . " Chapter 379, Florida Statutes (2019) , implements

t he constitutional provision and did so in 2017.

2. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish,

Florida. He breeds and sells exotic animals. Mr. Hammonds holds five

separate licenses authorizing him to own, breed, sell, and transport wil d life.

They are a Class III license 5 (with a Capuchin Monkey and Spider Monkey

endorsement) that authorizes him to exhibit and sell wildlife, a game farm

license, a deer herd management license, a United States Department of

Agriculture (USDA) transport l icense, and a USDA license to trade in wildlife

animals. The renewal of his G ame F arm L icense and L icense for E xhibit ion

and Public Sale of W ildlife are the subject of this matter. The Commission

refused to renew both.

3. Mr. Hammonds has held these two li censes since 2012. Since obtaining

his licenses, Mr. Hammonds has passed all Commission inspections. In

addition, the Commission has issued him a game farm license .

The 2012 Conviction

4. In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully

se lling wildlife to an unpermitted entity. The offense was sale of a marmoset

at a flea market to an unlicensed purchaser. The record does not provide a

citation to the statute violated. Mr. Hammonds was new to the exotic animal

trade. He relied upon stateme nts by the purchaser and a Commission

representative that the Commission had issued the purchaser a license and that it was en route.

5. The court adjudicated Mr. Hammonds guilty and ordered him to pay a

fine and costs totaling $450.00 . It also required M r. Hammonds to pay an

addit i onal $50.00 for costs of prosecution. Mr. Hammonds paid the fine and

5 Section 379.3762(2), Florida Statutes (2019) , creates three classifications of wildlife types.

Class I is wildli fe that because of its nature, habit, or status may not be possessed as a pet.

Class II is wildlife presenting a real or potential threat to human safety. Class III is all

wildlife not included in Classes I and II.

costs. Aware of this conviction, the Commission nonetheless routinely

approved Mr. Hammonds ' license renewal applications and approved his

application for a ga me farm license over the next six years. There is no

evidence of or charge of any other violations by Mr. Hammonds until the

charges involved in these cases.

The Capuchin Monkey

6 . In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina

Brown. He verified her identity and Nevada residency by looking at her

Nevada driver ' s license. Nevada does not require a license to own exotic

animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wil dlife.

6

7. Mr. Hammonds had a few conversations with Ms. Brown and her

assistant Manny Ortiz about the sale.

8. On October 12, 2017, Mr. Hammonds completed the required USDA

form, " Record of Acquisition, Disposition or Transport of Animals, " for the

Capuch in sale. 7

9. Mr. Hammonds was advised that Jennifer and Michael Brister would

pick up the monkey to transport it to Nevada. The Bristers are located in

6 Lack of proof is the hallmark of this case. The Commission relied solely upon the test imony

of one witness . The testimony was almost entirely hearsay or descriptions of document

contents. This is despite the Commission , according to its witness, having recordings, sworn

statements, telephone records, and financial records to support its all egations. The

Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding

of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla.

Stat. (2019). Document descriptions are subject to memory failings, incompleteness,

inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat. ;

See Williams v. State , 386 So. 2d 538, 540 (Fla. 1980) .

7 The form does not have a field calling for the buyer ' s telephone n umber, or any telephone

number for that matter. This is noted because the Commission ' s witness and Notices

emphasize , as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone

number on the form where the buyer ' s telephone number went. Th e unsupported testimony

and insistence on its significance is one of the reasons that the witness ' testimony is given

little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address

for Ms. Brown. It shows a Nevada address.

Tennessee. The Bristers held a USDA Class T Carrier permit issued under

the federal Animal Welfare Act . Mr. Hammonds obtained proof that the

Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to

provide this service. Mr. Hammonds was also aware that the Bristers

frequently did business in Florida. Other breeders recommended them

highly. The Commission did not prove that the Bristers did not hold a Florida

permit to own wildlife.

10. The Bristers picked up the monkey, on behalf of Ms. Brown, from

Mr . Hammonds in Fl orida. Other than to receive a telephone call reporting

that the monkey had been delivered, Mr. Hammonds had no further contact

with or communications about the monkey or M s. Brown until the

Commission ' s investigator contacted him.

11. There is no admissi ble, credible, persuasive evidence about what

happened to the monkey from this point forward. The Commission offered

only uncorroborated hearsay testimony from Mr. O ' Horo on this subject.

The Rhesus Macaque Monkey

12 . Mr. Hammonds also assists people in r escues of exotic animals whose

owners have realized they cannot care for them. In 2017, Mr. Hammonds

facilitated the transfer of a Rhesus Macaque monkey from one individual to

another. A Macaque monkey is a Class II animal. The monkey owner came to

Mr. Ham monds ' business seeking assistance because he could not handle the

monkey. The monkey was in a pet carrier.

13. Mr. Hammonds recalled a woman in Orlando who had contacted him

in the past seeking a Macaque. He put the two individuals in touch with each

oth er. The two individuals agreed to the exchange of the monkey.

14 . The woman came the same day, met the Macaque owner, and accepted

the monkey from him. The owner kept the monkey with him in the carrier

until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange . There is no competent, persuasive evidence that

Mr. Hammonds ever had ownership, physical possession, control, or custody

of the Macaque monkey in any form.

C ONCLUSIONS OF L AW

Jurisdiction and Burden of Proof

15 . The Division has jurisdiction over the parties and subj ect matter of

this proceeding. §§ 120.569 and 1 20.57(1) , Fla . Stat. (2019) . See also Fla.

Admin. Code R. 68 - 1.008 (5) (c)3 . (2019).

16. The Commission proposes to deny renewal of Mr. Hammonds ' li censes

for violations of rules and statutes. The proposed denial s a re sanction s for

violating licensure requirements. The parties properly stipulated that the

Commission bears the burden of proving the charges by clear and convincing

evidence. Coke v. Dept . of Child . and Fam . Servs . , 704 So. 2d 726 (Fla. 5th

DCA 1998) ; Holly v. Fla. Fish and Wildlife Conserv. Comm. , Case No. 15 -

3310 (Fla. DOAH Feb. 1, 2016 , modified in part, Fla FFWCC March 3 1,

2016) . Clear and convincing evidence must be credible . The memo ries of

witnesses m ust be clear and not confused. The evidence must produce a firm

belief that the truth of allegations has been established. Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983). Evidence that conflicts with other evidenc e may be c lear and convincing. The trier of fact must resolve conflicts

in the evidence. G.W.B. v. J.S.W. (in Re Baby E.A.W.) , 658 So. 2d 961, 967

(Fla. 1995).

2012 Conviction

17 . Section 379.3762(1) prohibits possession of, among other things, Class

II and Class II I wildlife without a Commission permit. In 2017, Florida

Administrative Code Rule 68 - 1.010 established reasons that the Commission

could deny a permit. The reasons include " an adjudication other than

acquittal or dismissal of any provision of Chapter 379, F.S., or rules of the

Commission, or similar laws or rules in another jurisdiction that relate to the

subject matter of the application sought. " Fla. Admin. Code R . 68 - 1.010(2)(a) .

18. The evidence does not reveal what statute or rule violation was the

bas is for Mr. Hammonds ' 2012 conviction. The parties have conducted

themselves as if the conviction were for an offense that might support denial

of a license. Therefore the undersigned accepts the implied stipulation that

the conviction was one for which a l icense could be denied.

Capuchin Monkey

19. Rule 68A - 6.0023(7) makes transfer or sale of wildlife to an

unpermitted entity within Florida unlawful. The Commission argues that

Mr. Hammonds ' transfer of the Capuchin monkey to the Bristers for

transport to Ne vada was an unlawful transfer of wildlife. The Commission

did not prove this charge. It did not prove that the Bristers did not have a permit. Furthermore, the only evidence about a permit proved that the

Bristers had a USDA Class T permit for transportati on of wildlife. Rule 68A -

1.004(21), by defining common carrier to include person certified as a

common carrier by the appropriate federal agency, recognizes that a federal

agency may permit the transportation of wildlife.

Rhesus Macaque Monkey

20. The Comm ission charges that Mr. Hammonds violated section

379.3761(1) by possessing and selling the Macaque, a Class II animal, without a permit. It also charges that he violated r ule 68A - 6.003(1) and

argues that the rule prohibits possession of wildlife without a permit. The

Commission ' s Proposed Recommended Order quotes the 2019 version of the

rule. But, in 2017, the rule governed caging requirements. By footnote, the

Commission notes that in 2017, r ule 68A - 6.0022 contained the prohibition

against possessing a Cl ass II animal without a permit.

21. The Commission did not prove Mr. Hammonds violated section

379.3761(1). It failed to prove the essential element that the woman who

received the Macaque did not have a permit.

22. The Commission also advances a theory that facilitating the

transaction between two independent parties amounted to " possession " of the

monkey and a violation of section 379.3761(1). Since the statute imposes a

penalty, it must be strictly construed. City of Miami Beach v. Galbut , 626 So.

2d 1 92, 194 (Fla. 1993); Turbeville v. Dep ' t of Fin. Servs. , 248 So. 3d 194, 197

(Fla. 1st DCA 2018); Roche Sur. & Cas. Co. v. Dep ' t of Fin. Servs. , Office of

Ins. Reg. , 895 So. 2d 1139, 1141 (Fla. 2d DCA 2005) .

23. Rule 68A - 1.004(57) defines possession to in clude manual possession,

physical possession, control or custody, and then goes on to describe specific

types of possession such as in a vehicle, vessel, or clothing. It does not include

facilitating, or brokering, a wildlife exchange as possession. Applyi ng this

definition to the facts, the Commission did not prove Mr. Hammonds

possessed the Macaque.

24. If Mr. Hammonds never possessed the Macaque, he could not have

transferred or sold it. In the absence of a special statutory definition, the

ordinary dict ionary definition of a word governs. See WFTV, Inc. v. Wilken ,

675 So. 2d 674 (Fla. 4th DCA 1996).

25. Rule 68A - 1.004(7) (defines sell as " the transfer of property or other

things to a buyer for an agreed price. " The rules do not define "transfer." The

or dinary definition of " t ransfer " is t o convey from one person to another or to

cause something to pass from one person to another . https://www.merriam -

webster.com/dictionary/transfer (last visited June 20, 2020). To transfer the

Macaque monkey, Mr. Hammonds would have had to possess or control it.

The individual who brought the monkey in the carrier and the person who received it were the people who had possession and control of the monkey.

The Commission did not prove that Mr. Hammonds had possession or control of the monkey. It therefore failed to prove a violation of r ule 68A - 6.0023(7).

Aggravating and Mitigating Factors

26. The only basis proven for denying Mr. Hammonds ' applications is t he

2012 conviction. Rule 68 - 1.010 (2019) establishes general regulations rel ating

to permits. Rule 68 - 1.010 (1)(d) permits denial of the permits because of the

2012 conviction. However, r ule 68 - 1.010(3) requires the Commission to

consider aggravating and mi tigating factors.

27. The factors are the severity of the conduct, the public danger created,

prior violations, efforts to correct or prevent violation, related violations, and

other factors reasonably related to public safety and protection of natural

re sources. Consideration of all factors weighs heavily in favor of granting

Mr. Hammonds' renewal applications.

28. Nothing in the record indicates that the sale of the marmoset in 2012

was a severe offense. The minimal penalty imposed indicates that it was not.

29. The 2012 violation is Mr. Hammonds ' only violation. It occurred when

he had just entered the business. In addition, he made an effort to follow the

law by calling the Commission to confirm that the buyer had a permit.

Mr. Hammonds accepted resp onsibility for his error by pleading no contest to

the charge.

30. Nothing in the record indicates that the sale of the marmoset created a

public danger. The 2012 violation is Mr. Hammonds ' only violation in eight

years. He has passed every inspection sin ce first getting his license.

Mr. Hammonds has not violat ed wildlife regulations in any other jurisdiction.

31 . Since the conviction, the Commission has renewed Mr. Hammonds'

first two licenses six times and granted him an additional license. There

could be no clearer determination that the 2012 conviction does not warrant

denying license renewal in 2020.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Respondent, Florida Fish and Wildlife Conservation

Commission, issue a final order renewing the Game Farm License and the

License to Possess Class III Wildlife for Exhibition or Public Sale of

Petitioner, James Hammonds .

D ONE A ND E NTERED this 23rd day of June , 2020 , in Tallahassee, Leon

County, Florida.

J OHN D. C. N EWTON , 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

Di vision of Administrative Hearings

this 23rd day of June , 2020 .

C OPIES F URNISHED :

Rhonda E. Parnell, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399

(eServed)

David A. Fernandez, Esquire

Fl orida Trial Counsel

4705 26th Street West , Suite A

Bradenton, Florida 34207

(eServed)

Sean P. Flynn, Esquire

Flynn Law, P.A.

2200 Manatee Avenue West

Bradenton, Florida 34025

(eServed)

Eric Sutton, Executive Director

Florida Fish and Wildlife Conse rvation 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, Fl orida 32399 - 1600

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.