19-006326
James Hammonds vs.
Florida Fish And Wildlife Conservation Commission
Status: Closed
Recommended Order on Tuesday, June 23, 2020.
Recommended Order on Tuesday, June 23, 2020.
1S TATEMENT OF T HE I SSUE S
9A. Did Respondent, Florida Fish and Wildlife Conservation Commissio n
19(Commission) correctly deny the application of Petitioner, James Hammonds,
28to renew his Game Farm License (Case No. 19 - 6307)?
39B. Did the Commission correctly deny Mr. Hammonds ' application to
50renew his L icense to Possess Class III Wildlife for Exhibitio n or Public Sale
65(Case No. 19 - 6326)?
70P RELIMINARY S TATEMENT
74The Commission denied Mr. Hammonds ' separate applications to renew a
85Game Farm License 1 and a License to Possess Class III Wildlife for
98Exhibition or Public Sale. 2 The Notices of Denial (Notices) are identical, save
111for two introductory paragraphs and the paragraph identifying which
120application is denied. The Notices charge Mr. Hammonds with selling
130wildlife, a Capuchin monkey, to an unlicensed entity in violation of Florida Administrative Code Rul e 6 8 A - 6.0023(7) .
1523 The Notices also charge
157Mr. Hammonds with unlawfully transferring a Rhesus Macaque monk ey and
168violating section 379.3762, Florida Statutes (2017) , by unlawfully possessing
177a Rhesus Macaque monkey. 4 Mr. Hammonds petitioned for a formal
188adm inistrative hearing to contest both denials. The Commission referred the
199dispute to the Division to conduct the requested hearings. The cases were
2111 May 10, 2019, Notice of Denial; Application ID 69947; Case No. 19 - 6307.
2262 August 16, 2019 , Notice of Denial; Application ID 69947; Case No. 19 - 6326.
2413 All citations to Florida Administrative Code Rules are to t he 2017 version unless noted
257otherwise. See Anderson v. Anderson , 468 So. 2d 528, 531 (Fla. 3d DCA 1985) (The forfeiture
273statute in effect at date of decedent ' s death governs.); Kraft Dairy Group v. Sorge , 634 So. 2 d
293720, 721 (Fla. 1st DCA 1994) (The fee s tatute in effect at the time of an injury governs
312because amendments to substantive statute " may not be retroactively applied. " ) .
3244 All citations to Florida Statutes are to the 2017 codification unless noted otherwise.
338Anderson v. Anderson , 468 So. 2d 528 , 531 (Fla. 3d DCA 1985); Kraft Dairy Group v. Sorge ,
355634 So. 2d 720, 721 (Fla. 1st DCA 1994) .
365consolidated. The hearing was scheduled for February 26, 2020. After
375granting one unopposed motion for conti nuance, the hearing was re -
387scheduled to start May 14, 2020.
393The undersigned conducted the hearing as scheduled. Mr. Hammonds
402testified on his own behalf. Mr. Hammonds ' E xhibits 1 and 3 through 5 were
418admitted into evidence. Mr. Hammonds also entered the E xhibits pre - marked
431as Respondent ' s exhibits 3 and 4. The Commission presented testimony from
444Robert O ' Horo. The transcript was filed May 26, 2020. The parties timely
458filed proposed recommended orders. They have been considered in the
468preparation of this R ecommended Order.
474The Notice s list a violation of section 837.06, Florida Statutes (201 7 ) as
489one reason for denying Mr. Hammonds' renewals . The Commission does not
501advance this position in its Proposed Recommended Order. The Commission
511has, therefore, aba ndoned that claimed basis for denial. Cf. D.H. v. Adept
524Cmty. Servs. , 271 So. 3d 870 (Fla. 2018) (Claims of error not raised in initial
539brief deemed abandoned); Wickham v. State , 124 So. 3d 841, 860 (Fla. 2013)
552( Failure to pursue a claim amounts to abandon ment of the claim.); Downs v.
567Moore , 801 So. 2d 906, 912 , n. 9 (Fla. 2001) (Failure to propose jury
581instruction 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
616did not prove a violation of the statute.
624F INDINGS OF F ACT
629The Parties
6311. Article IV, Section 9 of the Florida Constitution creates the
642Commission. It charges the Commission to " exercise the regulatory and
652executive powers of the state with respect to wild animal life and fresh water
666aquatic life, and exercise regulatory and executive powers of the state with
679respect to marine life, . " Chapter 379, Florida Statutes (2019) , implements
691t he constitutional provision and did so in 2017.
7002. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish,
711Florida. He breeds and sells exotic animals. Mr. Hammonds holds five
722separate licenses authorizing him to own, breed, sell, and transport wil d life.
735They are a Class III license 5 (with a Capuchin Monkey and Spider Monkey
749endorsement) that authorizes him to exhibit and sell wildlife, a game farm
761license, a deer herd management license, a United States Department of
772Agriculture (USDA) transport l icense, and a USDA license to trade in wildlife
785animals. The renewal of his G ame F arm L icense and L icense for E xhibit ion
803and Public Sale of W ildlife are the subject of this matter. The Commission
817refused to renew both.
8213. Mr. Hammonds has held these two li censes since 2012. Since obtaining
834his licenses, Mr. Hammonds has passed all Commission inspections. In
844addition, the Commission has issued him a game farm license .
855The 2012 Conviction
8584. In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully
871se lling wildlife to an unpermitted entity. The offense was sale of a marmoset
885at a flea market to an unlicensed purchaser. The record does not provide a
899citation to the statute violated. Mr. Hammonds was new to the exotic animal
912trade. He relied upon stateme nts by the purchaser and a Commission
924representative that the Commission had issued the purchaser a license and that it was en route.
9405. The court adjudicated Mr. Hammonds guilty and ordered him to pay a
953fine and costs totaling $450.00 . It also required M r. Hammonds to pay an
968addit i onal $50.00 for costs of prosecution. Mr. Hammonds paid the fine and
9825 Section 379.3762(2), Florida Statutes (2019) , creates three classifications of wildlife types.
994Class I is wildli fe that because of its nature, habit, or status may not be possessed as a pet.
1014Class II is wildlife presenting a real or potential threat to human safety. Class III is all
1031wildlife not included in Classes I and II.
1039costs. Aware of this conviction, the Commission nonetheless routinely
1048approved Mr. Hammonds ' license renewal applications and approved his
1058application for a ga me farm license over the next six years. There is no
1073evidence of or charge of any other violations by Mr. Hammonds until the
1086charges involved in these cases.
1091The Capuchin Monkey
10946 . In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina
1107Brown. He verified her identity and Nevada residency by looking at her
1119Nevada driver ' s license. Nevada does not require a license to own exotic
1133animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wil dlife.
11556
11567. Mr. Hammonds had a few conversations with Ms. Brown and her
1168assistant Manny Ortiz about the sale.
11748. On October 12, 2017, Mr. Hammonds completed the required USDA
1185form, " Record of Acquisition, Disposition or Transport of Animals, " for the
1196Capuch in sale. 7
12009. Mr. Hammonds was advised that Jennifer and Michael Brister would
1211pick up the monkey to transport it to Nevada. The Bristers are located in
12256 Lack of proof is the hallmark of this case. The Commission relied solely upon the test imony
1243of one witness . The testimony was almost entirely hearsay or descriptions of document
1257contents. This is despite the Commission , according to its witness, having recordings, sworn
1270statements, telephone records, and financial records to support its all egations. The
1282Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding
1298of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla.
1315Stat. (2019). Document descriptions are subject to memory failings, incompleteness,
1325inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat. ;
1340See Williams v. State , 386 So. 2d 538, 540 (Fla. 1980) .
13527 The form does not have a field calling for the buyer ' s telephone n umber, or any telephone
1372number for that matter. This is noted because the Commission ' s witness and Notices
1387emphasize , as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone
1401number on the form where the buyer ' s telephone number went. Th e unsupported testimony
1417and insistence on its significance is one of the reasons that the witness ' testimony is given
1434little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address
1449for Ms. Brown. It shows a Nevada address.
1457Tennessee. The Bristers held a USDA Class T Carrier permit issued under
1469the federal Animal Welfare Act . Mr. Hammonds obtained proof that the
1481Bristers 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
1507provide this service. Mr. Hammonds was also aware that the Bristers
1518frequently did business in Florida. Other breeders recommended them
1527highly. The Commission did not prove that the Bristers did not hold a Florida
1541permit to own wildlife.
154510. The Bristers picked up the monkey, on behalf of Ms. Brown, from
1558Mr . Hammonds in Fl orida. Other than to receive a telephone call reporting
1572that the monkey had been delivered, Mr. Hammonds had no further contact
1584with or communications about the monkey or M s. Brown until the
1596Commission ' s investigator contacted him.
160211. There is no admissi ble, credible, persuasive evidence about what
1613happened to the monkey from this point forward. The Commission offered
1624only uncorroborated hearsay testimony from Mr. O ' Horo on this subject.
1636The Rhesus Macaque Monkey
164012 . Mr. Hammonds also assists people in r escues of exotic animals whose
1654owners have realized they cannot care for them. In 2017, Mr. Hammonds
1666facilitated the transfer of a Rhesus Macaque monkey from one individual to
1678another. A Macaque monkey is a Class II animal. The monkey owner came to
1692Mr. Ham monds ' business seeking assistance because he could not handle the
1705monkey. The monkey was in a pet carrier.
171313. Mr. Hammonds recalled a woman in Orlando who had contacted him
1725in the past seeking a Macaque. He put the two individuals in touch with each
1740oth er. The two individuals agreed to the exchange of the monkey.
175214 . The woman came the same day, met the Macaque owner, and accepted
1766the monkey from him. The owner kept the monkey with him in the carrier
1780until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange . There is no competent, persuasive evidence that
1806Mr. Hammonds ever had ownership, physical possession, control, or custody
1816of the Macaque monkey in any form.
1823C ONCLUSIONS OF L AW
1828Jurisdiction and Burden of Proof
183315 . The Division has jurisdiction over the parties and subj ect matter of
1847this proceeding. §§ 120.569 and 1 20.57(1) , Fla . Stat. (2019) . See also Fla.
1862Admin. Code R. 68 - 1.008 (5) (c)3 . (2019).
187216. The Commission proposes to deny renewal of Mr. Hammonds ' li censes
1885for violations of rules and statutes. The proposed denial s a re sanction s for
1900violating licensure requirements. The parties properly stipulated that the
1909Commission bears the burden of proving the charges by clear and convincing
1921evidence. Coke v. Dept . of Child . and Fam . Servs . , 704 So. 2d 726 (Fla. 5th
1940DCA 1998) ; Holly v. Fla. Fish and Wildlife Conserv. Comm. , Case No. 15 -
19543310 (Fla. DOAH Feb. 1, 2016 , modified in part, Fla FFWCC March 3 1,
19682016) . Clear and convincing evidence must be credible . The memo ries of
1982witnesses m ust be clear and not confused. The evidence must produce a firm
1996belief that the truth of allegations has been established. Slomowitz v. Walker ,
2008429 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
2037in the evidence. G.W.B. v. J.S.W. (in Re Baby E.A.W.) , 658 So. 2d 961, 967
2052(Fla. 1995).
20542012 Conviction
205617 . Section 379.3762(1) prohibits possession of, among other things, Class
2067II and Class II I wildlife without a Commission permit. In 2017, Florida
2080Administrative Code Rule 68 - 1.010 established reasons that the Commission
2091could deny a permit. The reasons include " an adjudication other than
2102acquittal or dismissal of any provision of Chapter 379, F.S., or rules of the
2116Commission, or similar laws or rules in another jurisdiction that relate to the
2129subject matter of the application sought. " Fla. Admin. Code R . 68 - 1.010(2)(a) .
214418. The evidence does not reveal what statute or rule violation was the
2157bas is for Mr. Hammonds ' 2012 conviction. The parties have conducted
2169themselves as if the conviction were for an offense that might support denial
2182of a license. Therefore the undersigned accepts the implied stipulation that
2193the conviction was one for which a l icense could be denied.
2205Capuchin Monkey
220719. Rule 68A - 6.0023(7) makes transfer or sale of wildlife to an
2220unpermitted entity within Florida unlawful. The Commission argues that
2229Mr. Hammonds ' transfer of the Capuchin monkey to the Bristers for
2241transport to Ne vada was an unlawful transfer of wildlife. The Commission
2253did 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
2280Bristers had a USDA Class T permit for transportati on of wildlife. Rule 68A -
22951.004(21), by defining common carrier to include person certified as a
2306common carrier by the appropriate federal agency, recognizes that a federal
2317agency may permit the transportation of wildlife.
2324Rhesus Macaque Monkey
232720. The Comm ission charges that Mr. Hammonds violated section
2337379.3761(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
2363argues that the rule prohibits possession of wildlife without a permit. The
2375Commission ' s Proposed Recommended Order quotes the 2019 version of the
2387rule. But, in 2017, the rule governed caging requirements. By footnote, the
2399Commission notes that in 2017, r ule 68A - 6.0022 contained the prohibition
2412against possessing a Cl ass II animal without a permit.
242221. The Commission did not prove Mr. Hammonds violated section
2432379.3761(1). It failed to prove the essential element that the woman who
2444received the Macaque did not have a permit.
245222. The Commission also advances a theory that facilitating the
2462transaction between two independent parties amounted to " possession " of the
2472monkey and a violation of section 379.3761(1). Since the statute imposes a
2484penalty, it must be strictly construed. City of Miami Beach v. Galbut , 626 So.
24982d 1 92, 194 (Fla. 1993); Turbeville v. Dep ' t of Fin. Servs. , 248 So. 3d 194, 197
2517(Fla. 1st DCA 2018); Roche Sur. & Cas. Co. v. Dep ' t of Fin. Servs. , Office of
2535Ins. Reg. , 895 So. 2d 1139, 1141 (Fla. 2d DCA 2005) .
254723. Rule 68A - 1.004(57) defines possession to in clude manual possession,
2559physical possession, control or custody, and then goes on to describe specific
2571types of possession such as in a vehicle, vessel, or clothing. It does not include
2586facilitating, or brokering, a wildlife exchange as possession. Applyi ng this
2597definition to the facts, the Commission did not prove Mr. Hammonds
2608possessed the Macaque.
261124. If Mr. Hammonds never possessed the Macaque, he could not have
2623transferred or sold it. In the absence of a special statutory definition, the
2636ordinary dict ionary definition of a word governs. See WFTV, Inc. v. Wilken ,
2649675 So. 2d 674 (Fla. 4th DCA 1996).
265725. Rule 68A - 1.004(7) (defines sell as " the transfer of property or other
2671things to a buyer for an agreed price. " The rules do not define "transfer." The
2686or dinary definition of " t ransfer " is t o convey from one person to another or to
2703cause something to pass from one person to another . https://www.merriam -
2715webster.com/dictionary/transfer (last visited June 20, 2020). To transfer the
2724Macaque monkey, Mr. Hammonds would have had to possess or control it.
2736The 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.
2762The 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).
2790Aggravating and Mitigating Factors
279426. The only basis proven for denying Mr. Hammonds ' applications is t he
28082012 conviction. Rule 68 - 1.010 (2019) establishes general regulations rel ating
2820to permits. Rule 68 - 1.010 (1)(d) permits denial of the permits because of the
28352012 conviction. However, r ule 68 - 1.010(3) requires the Commission to
2847consider aggravating and mi tigating factors.
285327. The factors are the severity of the conduct, the public danger created,
2866prior violations, efforts to correct or prevent violation, related violations, and
2877other factors reasonably related to public safety and protection of natural
2888re sources. Consideration of all factors weighs heavily in favor of granting
2900Mr. Hammonds' renewal applications.
290428. Nothing in the record indicates that the sale of the marmoset in 2012
2918was a severe offense. The minimal penalty imposed indicates that it was not.
293129. The 2012 violation is Mr. Hammonds ' only violation. It occurred when
2944he had just entered the business. In addition, he made an effort to follow the
2959law by calling the Commission to confirm that the buyer had a permit.
2972Mr. Hammonds accepted resp onsibility for his error by pleading no contest to
2985the charge.
298730. Nothing in the record indicates that the sale of the marmoset created a
3001public danger. The 2012 violation is Mr. Hammonds ' only violation in eight
3014years. He has passed every inspection sin ce first getting his license.
3026Mr. Hammonds has not violat ed wildlife regulations in any other jurisdiction.
303831 . Since the conviction, the Commission has renewed Mr. Hammonds'
3049first two licenses six times and granted him an additional license. There
3061could be no clearer determination that the 2012 conviction does not warrant
3073denying license renewal in 2020.
3078R ECOMMENDATION
3080Based on the foregoing Findings of Fact and Conclusions of Law, it is
3093R ECOMMENDED that Respondent, Florida Fish and Wildlife Conservation
3102Commission, issue a final order renewing the Game Farm License and the
3114License to Possess Class III Wildlife for Exhibition or Public Sale of
3126Petitioner, James Hammonds .
3130D ONE A ND E NTERED this 23rd day of June , 2020 , in Tallahassee, Leon
3145County, Florida.
3147J OHN D. C. N EWTON , II
3154Administrative Law Judge
3157Division of Administrative Hearings
3161The DeSoto Building
31641230 Apalachee Parkway
3167Tallahassee, Florida 32399 - 3060
3172(850) 488 - 9675
3176Fax Filing (850) 921 - 6847
3182www.doah.state.fl.us
3183Filed with the Clerk of the
3189Di vision of Administrative Hearings
3194this 23rd day of June , 2020 .
3201C OPIES F URNISHED :
3206Rhonda E. Parnell, Esquire
3210Florida Fish and Wildlife Conservation Commission
3216620 South Meridian Street
3220Tallahassee, Florida 32399
3223(eServed)
3224David A. Fernandez, Esquire
3228Fl orida Trial Counsel
32324705 26th Street West , Suite A
3238Bradenton, Florida 34207
3241(eServed)
3242Sean P. Flynn, Esquire
3246Flynn Law, P.A.
32492200 Manatee Avenue West
3253Bradenton, Florida 34025
3256(eServed)
3257Eric Sutton, Executive Director
3261Florida Fish and Wildlife Conse rvation Commission
3268Farris Bryant Building
3271620 South Meridian Street
3275Tallahassee, Florida 32399 - 1600
3280(eServed)
3281Emily Norton, General Counsel
3285Florida Fish and Wildlife Conservation Commission
3291Farris Bryant Building
3294620 South Meridian Street
3298Tallahassee, Fl orida 32399 - 1600
3304(eServed)
3305N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
3316All parties have the right to submit written exceptions within 15 days from
3329the date of this Recommended Order. Any exceptions to this Recommended
3340Order should be filed with the agency that will issue the Final Order in this
3355case.
- Date
- Proceedings
- PDF:
- Date: 10/14/2020
- Proceedings: Respondent's Response to Petitioner's Application for Attorney Fees filed.
- PDF:
- Date: 09/29/2020
- Proceedings: Petitioner's Application for Attorneys' Fees filed. (DOAH CASE NO. 20-4555F ESTABLISHED)
- PDF:
- Date: 06/29/2020
- Proceedings: Transmittal letter from Claudia Llado forwarding Petitioner's and Respondent's Exhibits, which were not admitted into evidence, to Respondent.
- PDF:
- Date: 06/23/2020
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 05/29/2020
- Proceedings: Petitioner's Proposed Findings of Fact and of Conclusions of Law filed.
- Date: 05/26/2020
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 05/14/2020
- Proceedings: CASE STATUS: Hearing Held.
- Date: 05/08/2020
- Proceedings: Respondent exhibits filed (confidential information, not available for viewing). Confidential document; not available for viewing.
- PDF:
- Date: 04/30/2020
- Proceedings: Amended Notice of Hearing by Zoom Conference (hearing set for May 14, 2020; 9:00 a.m.; Tallahassee; amended as to Type of Hearing).
- Date: 04/30/2020
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 04/29/2020
- Proceedings: Notice of Telephonic Pre-hearing Conference (set for April 30, 2020; 9:00 a.m.).
- PDF:
- Date: 03/19/2020
- Proceedings: Notice of Service of Answers to Interrogatories (filed in Case No. 19-006326).
- PDF:
- Date: 03/17/2020
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for May 14, 2020; 9:00 a.m.; Sarasota and Tallahassee, FL).
- Date: 03/13/2020
- Proceedings: CASE STATUS: Status Conference Held.
- PDF:
- Date: 03/11/2020
- Proceedings: Notice of Telephonic Status Conference (status conference set for March 13, 2020; 3:45 p.m.).
- Date: 02/26/2020
- Proceedings: Respondent's Exhibits filed (confidential information, not available for viewing). Confidential document; not available for viewing.
- PDF:
- Date: 02/24/2020
- Proceedings: Order Granting Continuance (parties to advise status by March 5, 2020).
- Date: 02/24/2020
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 02/18/2020
- Proceedings: Amended Notice of Telephonic Pre-hearing Conference (pre-hearing conference set for February 24, 2020; 9:00 a.m.).
- PDF:
- Date: 02/17/2020
- Proceedings: Petitioner's Motion to Continue (No Objection by Opposing Party, Respondent) filed.
- PDF:
- Date: 12/12/2019
- Proceedings: Notice of Telephonic Pre-hearing Conference (set for February 18, 2020; 9:00 a.m.).
- PDF:
- Date: 12/12/2019
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for February 26 and 27, 2020; 9:00 a.m.; Sarasota and Tallahassee, FL).
- Date: 12/12/2019
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 12/06/2019
- Proceedings: Notice of Telephonic Scheduling Conference (status conference set for December 12, 2019; 10:00 a.m.).
Case Information
- Judge:
- JOHN D. C. NEWTON, II
- Date Filed:
- 11/26/2019
- Date Assignment:
- 11/26/2019
- Last Docket Entry:
- 10/15/2020
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
David A Fernandez, Esquire
Address of Record -
Sean P. Flynn, Esquire
Address of Record -
Rhonda E. Parnell, Esquire
Address of Record -
Rhonda E Parnell, Esquire
Address of Record