21-002141
John Wilson vs.
Florida Fish And Wildlife Conservation Commission
Status: Closed
Recommended Order on Monday, February 14, 2022.
Recommended Order on Monday, February 14, 2022.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13D REW K AISER ,
17Petitioner ,
18vs. Case No. 21 - 2139
24F LORIDA F ISH A ND W ILDLIFE
32C ONSERVATION C OMMISSION ,
36Respondent.
37/
38J OHN W ILSON ,
42Petitioner,
43vs. Case No. 21 - 2141
49F LOR IDA F ISH A ND W ILDLIFE
58C ONSERVATION C OMMISSION ,
62Respondent.
63/
64R ECOMMENDED O RDER
68A duly - noticed final hearing was held in this case via Z oom conference on
84October 12 through 14, 2021, before Suzanne Van Wyk, an Administrative
95Law Judge assigned by the Division of Administrative Hearings.
104A PPEARANCES
106For Petitioner s : Kenneth G. Oertel, Esquire
114Oertel, Fernandez, Bryan & Atkinson, P.A .
121Post Office Box 1110
125Tallahassee, Florida 32302 - 1110
130Ian Waldick, Esquire
133Parker, Hudson, Ranier & Dobbs, LLP
139215 South Monroe Street, Suite 750
145Tallahassee, Florida 32301
148For Respondent: Rhonda E. Parnell, Esquire
154Florida Fish and Wildlife Conservation Commission
160Farris Bryant Building
163620 South Meridian Street
167Tallahassee, Florida 32399 - 1600
172S TATEMENT OF T HE I SSUE
179Whether PetitionersÔ gopher tortoise agent permits should be revoked (or
189non - renewed) for the violations alleged in the Agency Action letters dated
202June 4, 2021.
205P RELIMINARY S TATEMENT
209On June 4, 2021, the Florida Fish and Wildlife Conservation Commission
220(ÑCommissionÒ) issued Agency Action letters against Petitioners, Drew Kaiser
229and John Wilson, seeking to revoke PetitionersÔ gopher tortoise agent
239permits. Petitioners timely filed Petitions for Formal Administrative Hearing
248to contest facts alleged in the Agency Action letters, which were referred to
261the Division of Administrativ e Hearings (ÑDivisionÒ) on July 7, 2021, for
273assignment of an administrative law judge to conduct a disputed fact - finding
286hearing.
287The two cases were consolidated for final hearing, which was scheduled
298for October 12 through 14, 2021, via Zoom conference. As the docket reflects,
311the undersigned heard and ruled on numerous pre - hearing motions,
322including PetitionersÔ Motion to Stay and Motion to Dismiss, which were
333denied.
334At the final hearing, Respondent introduced the testimony of Eric
344Seckinger, Kyle B rown, Nicole Savona, Samantha Cobble, Claire Sunquist
354Blunden, and Joshua Horst. 1 RespondentÔs Exhibits 1.4 through 1.9, 1.11,
3651.12, 2.4 through 2.6, 2.16, 2.17, 2.19, 3.1 through 3.6, 4.1, 4.3, 4.6
378through 4.13, and 8.1 through 8.9 were admitted into evi dence. The partiesÔ
391Joint Exhibits J - 1 through J - 10 were admitted into evidence.
404Petitioner Wilson testified on his own behalf and PetitionersÔ Exhibits 2,
4158, 9, 12, 13, and 29 were admitted into evidence. Petitioner Kaiser did not
429testify.
430The proceedi ngs were recorded and the f ive - volume Transcript of the final
445hearing was filed with the Division on November 15, 2021. The parties
457requested and received a ten - day extension to file their proposed
469recommended orders. 2 The parties timely filed Proposed Rec ommended
479Orders on December 6, 2021, which have been carefully considered by the
491undersigned in preparing this Recommended Order.
497Unless otherwise noted, citations to the Florida Statutes are to the 2021
509version, which was in effect when the Agency Action letters were filed.
521F INDINGS OF F ACT
5261. The Commission is the state agency with the authority to exercise
538regulatory and executive powers of the state with respect to wild animal life.
551See Art. IV, § 9, Fla. Const.; § 379.1025, Fla. Stat.
5622 . The Commissi on has designated the gopher tortoise as a State
575Threatened Species, subject to protective provisions adopted by Commission
5841 Despite Mr. Kaiser and Mr. WilsonÔs position as Petitioners in these consolidated cases,
598Respondent has the burden of proof and the burden of going forward with the evidence. See
614Associated Home Health Ag . , Inc. v. DepÔt of HRS , 453 So. 2d 104, 106 (Fla. 1st DCA 1984).
633Thus, RespondentÔs case was presented first.
6392 The parties agreed to a deadline for filing their p roposed r ecommended o rders which was
657more than ten days after the filing of the Transcript; therefore, the parties waived the
672requir ement that this Recommended Order be filed within 30 days after receipt of the
687Transcript. See Fla. Admin. Code R. 28 - 106.216(2) (2021).
697rule. See Fla. Admin. Code R. 68A - 27.003(2)(f)5. ÑNo person shall take,
710attempt to take È capture, posses s , sell, or transport any g opher tortoise È
725except as authorized by Commission permit or when complying with the
736Gopher Tortoise Management Plan[.]Ò Id .
7423 . Both the tortoise and its burrow are protected under state law, and
756gopher tortoises must be relocated before any land clearin g or development
768takes place on property where gopher tortoises are located. The CommissionÔs
779Gopher Tortoise Program governs the capture and removal of gopher
789tortoises from a development site and relocation of those tortoises to a
801Commission - permitted re cipient site, as well as monitoring and maintenance
813of recipient sites.
8164 . The Commission has adopted extensive Gopher Tortoise Permitting
826Guidelines (Ñthe GuidelinesÒ) governing the requirements to survey a
835potential development site for gopher tortoises and burrows, regulating the
845capture and trapping of gopher tortoises, as well as the transport of tortoises
858to a recipient site, and the release of the tortoises to the recipient site. See
873Fla. Admin. Code R. 68A - 27.003( 2 )(f)5.
8825 . Drew Kaiser holds Autho rized Gopher Tortoise Agent permit number
894GTA - 09 - 00005E, issued by the Commission and effective March 18, 2019
908through March 31, 2021. The permit is issued to Drew Kaiser, Kaiser
920Consulting Group, LLC, 931 South Ridgewood Avenue, Suite B3, Edgewater,
930Flori da.
9326. The permit authorizes Mr. Kaiser to undertake the following activities:
9431. conduct gopher tortoise surveys;
9482. capture gopher tortoises using bucket traps and
956hand shovel excavation of gopher tortoise burrows;
9633. mark, transport, and release cap tured gopher
971tortoises at recipient sites; and
9764. supervise backhoe excavation of gopher tortoise
983burrows to capture gopher tortoises.
9887 . John Wilson holds Authorized Gopher Tortoise Agent permit number
999GTA - 19 - 00123, issued by the Commission and effecti ve November 4, 2019
1014through November 4, 2021. The permit is issued to John Wilson, Kaiser
1026Consulting Group, 4323 Kezar Court, Orlando, Florida.
10338 . Mr. WilsonÔs permit authorizes him to undertake the following
1044activities:
10451. conduct gopher tortoise survey s, and
10522. mark, transport, and release captured gopher
1059tortoises at recipient sites.
10639 . Both permits contain conditions and provisions governing the
1073authorized activities, including the requirement to comply with the
1082Guidelines.
108310 . Mr. KaiserÔs permit also provides that the Ñactivities authorized under
1095this Permit must be carried out by the Permittee or the AssistantsÒ
1107designated by the permittee, and that the Ñ[p]ermittee shall be as fully
1119responsible for activities conducted by Assistants È to the sa me extent as if
1133they had themselves carried out those activities.Ò
114011 . Mr. Kaiser listed Mr. Wilson as one of his Assistants on his 2019
1155application for renewal of his Authorized Gopher Tortoise Agent permit.
116512 . Mr. Kaiser owns Kaiser Consulting Group (ÑK CGÒ) and Mr. Wilson is
1179employed by KCG as a project manager.
118613 . Recipient sites are privately or publicly - owned lands of 25 acres or
1201more subject to permitting by the Commission to accept gopher tortoises
1212needing relocation out of harmÔs way from developm ent.
122114 . The allegations in the Agency Action letters relate to activities that
1234occurred at one of the following recipient sites permitted by the Commission:
12461. Padgett Creek, Long - Term Gopher Tortoise
1254Recipient Site permit number GTLR - 18 - 00001;
12632. C. He rman Beville Ranch, Long - Term Gopher
1273Tortoise Recipient Site permit number GTLR - 10 -
128200003D;
12833. Highlands Ranch, Long - Term Gopher Tortoise
1291Recipient Site permit number GTLR - 17 - 00001;
13004. Triple S Ranch, Long - Term Gopher Tortoise
1309Recipient Site permit nu mber GTLR - 20 - 00001;
13195. Russakis Investments, Long - Term Gopher
1326Tortoise Recipient Site permit number GTLR - 13 -
133500005;
13366. Russakis Ranch, Long - Term Gopher Tortoise
1344Recipient Site permit number GTLR - 11 - 00003C;
1353and
13547. Williamson Cattle Company, Long - Ter m Gopher
1363Tortoise Recipient Site permit number GTLR - 19 -
137200003A.
137315 . Applicants for a recipient site permit must identify an A uthorized
1386Gopher Tortoise Agent associated with the permit.
139316 . The Guidelines do not address the scope of the Authorized Gopher
1406Tortoise AgentÔs responsibility for activities on the recipient site , except with
1417regard to Transport, Marking, and Release of Gopher Tortoises (Guidelines,
1427p. 22), as follows:
1431For relocation permit applications where gopher
1437tortoises will be relocated of f - site and the
1447Authorized Agent for the donor site is not
1455authorized to transport, mark and release gopher
1462tortoises, the permit application must include
1468documentation that the Authorized Agent
1473representing the gopher tortoise recipient site or one
1481of the assistants to that agent will transport, mark,
1490and release tortoises captured under that relocation
1497permit .
1499(emphasis added).
150117 . Each of the subject recipient site permits is issued to the landowner.
1515Each permit names Drew Kaiser as the authorized agen t, with an address of
1529Kaiser Consulting Group, LLC, 931 South Ridgewood Avenue, Suite B3,
1539Edgewater, Florida. However, the landowner, not Mr. Kaiser, is the
1549permittee.
155018 . Each recipient site permit contains the following statement in the
1562permit conditions :
1565The activities authorized under this Permit may be
1573carried out by the authorized personnel or
1580contractors of the Permittee or the designated
1587Authorized Gopher Tortoise Agent
1591(Agent)/Consultant , provided all such activities are
1597under the direct supervisio n and responsibility of
1605the Permittee or Agent/Consultant. The Permittee
1611and Agent/Consultant shall be as fully responsible
1618for any such activities to the same extent as if they
1629had themselves carried out those activities under
1636the Permit.
1638(emphasis added ).
164119 . In each case, KCG prepared the application for the recipient site
1654permit. KCG also prepared the Gopher Tortoise Habitat Management Plan
1664for each of the recipient sites.
167020 . The management plan for the C. Herman Beville Ranch (ÑBeville
1682RanchÒ) states that Ñ[KCG] has been retained by [its managing principal] as
1694the sole managersÒ of the recipient site. Further it provides that the Ñland
1707will be maintained and monitored by [KCG] to comply, provide suitable
1718habitatÒ and to ensure that Ñthere will be no a ctivities or improvements that
1732will impede or interfere withÒ the gopher tortoise habitat.
174121 . The remaining recipient site management plans require that
1751maintenance and monitoring occur to comply with Commission rules and the
1762Guidelines, but do not direct ly state that KCG has been retained as sole
1776manager.
1777Recipient Site Requirements
178022 . The Guidelines (Section IV, ÑTypes of PermitsÒ) contain the following
1792relevant requirements for recipient sites :
1798To receive a [Commission] recipient site permit,
1805candidat e properties must meet the site suitability
1813criteria for size, soil, and habitat. Site suitability
1821criteria vary according to the level of conservation
1829value provided by the recipient site.
1835Landowners who meet the basic criteria in these
1843guidelines are en couraged to contact the
1850[Commission] Gopher Tortoise Permit Office to
1856schedule a pre - application site visit. A preliminary
1865site visit allows [Commission] staff to evaluate the
1873suitability of the habitat on the proposed site.
1881* * *
1884All tortoises relocated to any recipient site
1891(including unprotected recipient sites) shall be
1897released into a temporary enclosure as described
1904below and retained within the enclosure for a
1912period of not less than six months and no more
1922than twelve months.
1925* * *
1928Tortoises shal l be released into temporary fenced
1936enclosures such that the maximum number of
1943gopher tortoises approved by FWC for release into
1951the entire recipient site parcel shall not be
1959exceeded. Enclosures within recipient sites with
1965varying approved stocking rates may be stocked at
19731.5 times the approved density for the area in
1982which the enclosure is located. If an enclosure
1990encompasses an area with varying approved
1996stocking rates, then the enclosure Ô s approved
2004gopher tortoise density will be proportional to the
2012num ber of acres in each approved stocking rate
2021area. For example, if a 40 - acre recipient site
2031initially containing no gopher tortoises includes a
203815 - acre enclosure encompassing five acres that are
2047approved for a final density of two gopher tortoises
2056per acre and ten acres that are approved for a final
2067density of three gopher tortoises per acre, then the
2076enclosure can receive up to 60 gopher tortoises
20841.5
2085Temporary enclosures may be of any material that
2093prevents the passage of tortoises o f all sizes
2102released to the site. È [t]emporary fencing must be
2111buried at least eight inches into the ground to
2120prevent tortoises pushing beneath the enclosure
2126and must be at least two feet high and of sufficient
2137robustness to prevent tortoises pushing or climbing
2144over.
2145* * *
2148Temporary fencing must be regularly monitored
2154and maintained to repair damage and retain the
2162integrity of the temporary enclosure.
2167* * *
2170Tortoises observed above ground within the
2176temporary enclosures shall be monitored weekly for
2183the first month and monthly thereafter to
2190document any problems (e.g. illness, mortality,
2196evidence of human poaching, emigration). The
2202[Commission] permitting office must be contacted if
2209decreases in tortoise numbers are documented.
221523 . Appendix 3 of the Guidelines (ÑInformation Needed for È Recipient
2227Site PermitsÒ) provides the following relevant to the required habitat
2237management plans for recipient sites:
2242Tortoise mortality/contingency plan : The habitat
2248management plan must include a landowner
2254commitmen t to notify the [Commission] within
226148 hours of any observed mortality, injury or sign of
2271disease and if needed, coordinate with them to
2279develop a contingency and/or adaptive management
2285plan to address mortality on the recipient site
2293should evidence of mul tiple adult tortoise shells
2301and carcasses be observed beyond infrequent
2307mortality (i.e., >3% of the adult tortoise population
2315in any one year, or if more than a few adults are
2327found dead in any small area) seen under natural
2336circumstances (i.e., wildlife p redation or disease).
2343Alleged Violations
234524 . The Commission cites Petitioners with multiple violations of the
2356Guidelines in management of the recipient sites. 3 The violations include the
2368following:
2369Failing to regularly monitor and maintain
2375temporary fenci ng at several of the recipient sites
2384to repair damage and maintain the integrity of the
2393temporary enclosures;
2395Overstocking gopher tortoises at the Padgett Creek
2402and Triple S Ranch recipient sites;
2408Failing to report observed tortoise mortalities to
2415the Co mmission, which would trigger development
2422of a contingency or adaptive management plan;
2429Failing to monitor the Padgett Creek Ranch and
2437Beville Ranch sites for feral pig activity and take
2446steps to curb feral pig damage to tortoise burrows;
2455and,
2456Allowing u se of rollerchopping at the Triple S
2465Ranch recipient site, when that land management
2472technique is not included in the management plan.
248025 . As discussed in the Conclusions of Law, the Commission failed to
2493prove that either PetitionerÔs gopher tortoise agen t permit is subject to
2505discipline for alleged violations of the recipient site permits.
25143 For unknown reasons, the Commission did not cite the recipient site permit holders for
2529violations of the recipient si te permits.
2536Triple S Ranch
253926 . In addition to alleged violations of the Guidelines on the recipient
2552sites, the Commission charged Mr. Kaiser with submitting false information
2562in connection with the Triple S Ranch recipient site permit application.
257327 . Mr. KaiserÔs assistant, Mr. Wilson, assisted in preparation of the
2585permit application for Triple S Ranch as a recipient site.
259528 . Mr. Wilson conducted the required tortoise survey b etween February
2607and April 2019.
261029 . A gopher tortoise survey is required on at least 15 percent of the site
2626to get a baseline for the number of tortoises already living on the proposed
2640recipient site. During a gopher tortoise survey, an agent, or agents, w alks a
2654series of transect lines on the property, and marks the location of existing
2667gopher tortoise burrows on a corresponding map of the potential recipient
2678site. The agent also submits survey information in electronic form.
268830 . Mr. Wilson also assisted i n preparation of the required land cover
2702map, vegetation survey, soils map, and gopher tortoise habitat map, as well
2714as with information for title searches and the required conservation
2724easement.
272531 . On or about May 15, 2019, Erik Seckinger, senior gopher tortoise
2738biologist for the Commission; and another Commission staffperson, Momoka
2747Meada , 4 conducted the required pre - application site visit to the Triple S
2761Ranch. Mr. Seckinger met with Mr. Kaiser and Mr. Wilson at the property
2774with maps of the property, s oil maps, and the vegetation survey that was in
2789process by Mr. Wilson. Mr. Wilson drove the Commission staff to various
2801portions of the property as requested by them, and staff got out of the truck
2816and walked certain areas of the property. Altogether, the pre - application site
2829visit took about six hours and covered approximately 70 percent of the
2841property.
28424 The record does not document Ms. MeadaÔs professional title.
285232 . During the pre - application site visit, Mr. Seckinger determined that
2865some of the habitat on the property was Ñimproved pastureÒ not suitable for
2878gophe r tortoises. Mr. Wilson removed that acreage (approximately 17 acres)
2889from the maps to be used for the application. Another area was removed at
2903the direction of Commission staff on the basis that it needed maintenance.
2915That area was noted for future use, b ut not for approval, in the initial
2930application.
293133 . The Commission approved Triple S Ranch as a recipient site effective
2944February 20, 2020.
294734 . Kyle Brown, gopher tortoise conservation biologist for the
2957Commission, and Nicole Savona, conservation easement and monitoring
2965compliance biologist, conducted an inspection at Triple S Ranch on May 2,
29772021. 5 Mr. Brown and Ms. Savona were met at the ranch by Mr. Kaiser and
2993Mr. Wilson, who guided them around the property. Mr. Brown brought with
3005him the habitat map fr om the recipient site application, which is a Florida
3019Land Use Classification System (ÑFLUCSÒ) map overlaid with the property
3029boundary, red hatching over areas which are not usable for gopher tortoise
3041habitat, and blue hatching over areas reserved for futu re use as gopher
3054tortoise habitat. The map is also overlaid with the habitat land use
3066classification code corresponding to each area, such as 2110 Ï improved
3077pasture; 3210 Ï palmetto prairies; and 4110 Ï pine flatwoods.
308735 . During his inspection, Mr. Brow n noted that Ñ[a]reas classified as
3100Ópalmetto prairiesÔ in FLUCS and application are more in line with Óimproved
3112pastureÔ. These habitat [sic] have very little shrubs other than the sporadic
3124stand of palmettos.Ò Finally, Mr. Brown noted that Ñthese areas c ould benefit
3137from some supplemental plantings of palmettos and other variety of foraging
3148plants to improved [sic] suitability for tortoises.Ò
31555 Section 5.1 of the Guidelines requires the Commission to conduct annual monitoring
3168inspections of recipient sites. The subject inspection occurred slightly more than a year after
3182issuance of Triple S RanchÔs recipient site permit.
319036 . In his report summary, Mr. Brown concluded as follows:
3201The portions of the property permitted as
3208acceptable ÑPalmetto Prairies,Ò around 1568.20
3214acres are more in line with descriptions of
3222ÑImproved Pasture.Ò There is very little in the way
3231of fetter bush in these areas and palmetto is not the
3242dominant vegetation type. Palmetto was found
3248sporadically throughout t hese areas but the
3255dominant vegetation is various grasses. Cows are
3262found throughout these portions of the property.
326937 . Based on Mr. BrownÔs observations of the habitat on the ground at
3283Triple S Ranch, the Commission charged Petitioner Kaiser with submit ting
3294false information in the Triple S Ranch recipient site permit application in
33062019.
330738 . The evidence was insufficient to establish that either the habitat land
3320use map or the vegetation survey submitted by KCG as part of the
3333application for Triple S Ra nch recipient site permit was falsified. 6 It was also
3348insufficient to establish that the areas Mr. Brown identified as Ñmore in line
3361with descriptions of improved pasture,Ò actually met the GuidelinesÔ
3371definition of improved pasture.
337539 . The Guidelines de fine Ñimproved pastureÒ as Ñland which has been
3388cleared, tilled, and is dominated by planted non - native or domesticated
3400native foraging species and evidence of current or recent cultural treatments
3411(mowing, grazing, burning, fertilizing), with less than 10 % canopy cover.Ò
3422Mr. Brown testified that he was unaware if the areas he described as
3435improved pasture had ever been cleared or tilled. Moreover, although he
34466 The Commission introduced in evidence the initial vegetation survey tables submitted by
3459KCG with the application in 2019, which lists the herbaceous ground cover type associated
3473with each vegetation su rvey station. The undersigned assumes the purpose was to compare
3487the tabular information with the vegetation survey maps (which are based on a e r ia l
3504photography), to demonstrate that the vegetation described in 2019 did not match the
3517vegetation pictured at that time. However, the vegetation survey maps do not contain
3530information to cross - reference to any particular survey station number in the table, and the
3546Commission did not introduce testimony from any witness to make that connection for the
3560undersigned.
3561testified that non - native grasses existed in those areas, he did not know
3575whether they had been pl anted.
358140 . At most, the evidence demonstrated that some areas noted as Ñshrub
3594and brushlandÒ and Ñpalmetto prairieÒ in the permit application in May 2019,
3606were dominated by grasses, rather than either palmetto or other shrubs, on
3618March 2, 2021. 7 The appro ved management plan for Triple S Ranch provides
3632for cattle rotation and prescribed burns as methods to keep vegetation cover
3644low in both the shrub and brushland communities and the palmetto prairies.
3656C ONCLUSIONS OF L AW
366141 . The Division has jurisdiction ov er the subject matter of, and the
3675parties to, this proceeding. See §§ 120.569 and 120.57(1), Fla. Stat. (2021 ).
368842 . Petitioners hold gopher tortoise agent permits to conduct specific
3699activities related to the removal and transport of gopher tortoises from
3710development sites to recipient sites.
37154 3 . In this case, the Commission seeks revocation of PetitionersÔ licenses,
3728and as such, this proceeding is penal in nature. The Commission has the
3741burden to prove the allegations in the Agency Action letters by clea r and
3755convincing evidence. See DepÔt of Banking & Fin. v. Osborne Stern & Co ., 670
3770So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);
3785Coke v. DepÔt of Child. & Fam. Servs ., 704 So. 2d 726 (Fla. 5th DCA 1998).
38024 4 . In Evans Packin g Company v. Department of Agriculture and
3815Consumer Services , 550 So. 2d 112, 116 n.5 (Fla 1st DCA 1989), the First
3829District Court of Appeal defined clear and convincing evidence as follows:
3840Clear and convincing evidence requires that the
3847evidence must be found to be credible; the facts to
3857which the witnesses testify must be distinctly
3864remembered; the evidence must be precise and
38717 Furthermore, it is difficult to conclude that Mr. Kaiser, or one of his assistants, falsified the
3888application due to physical conditions on the property when the Commission engaged in a
3902substantial pre - application physical inspection of the property and, thereafter, issued the
3915recipient site permit.
3918explicit and the witnesses must be lacking in
3926confusion as the facts in issue. The evidence must
3935be of such weight that it produc es in the mind of
3947the trier of fact that firm belief of conviction,
3956without hesitancy, as to the truth of the allegations
3965sought to be established. Slomowitz v. Walker , 429
3973So. 2d 797, 800 (Fla. 4th DCA 1983).
3981Falsifying Information
39834 5 . Florida Administra tive Code Rule 68 - 1.010(2)(c) provides:
3995The Commission shall revoke or deny the renewal
4003of any license, permit or other authorization based
4011on any one or more of the following grounds:
4020* * *
4023(c) The licensee, permittee or other holder of
4031authorization has submitted materially false
4036information in any previously submitted or pending
4043application or supporting documentation relating to
4049the application, or documentation or reports
4055required by the license, permit or authorization.
40624 6 . The Commission did not present clear and convincing evidence that
4075either the habitat coverage map or vegetation survey submitted with the
4086Triple S Ranch recipient site application was falsified.
40944 7 . The Commission did not carry its burden to prove that Mr. Kaiser is
4110subject to discipline pursuant to rule 68 - 1.010(2)(c).
4119Alleged Recipient Site Permit Violations
41244 8 . Rule 68 - 1.010(2)(d) provides:
4132(2) The Commission shall revoke or deny the
4140renewal of any license, permit or other
4147authorization based on any one or more of the
4156follo wing grounds:
4159* * *
4162(d) The licensee, permittee or other holder of
4170authorization is conducting activities under the
4176license, permit or authorization in a manner that
4184endangers the health, safety or welfare of the
4192public, wild animal life, fresh water aq uatic life or
4202marine life.
4204(emphasis added).
42064 9 . The CommissionÔs Agency Action letters do not allege violations
4218related to activities undertaken by Petitioners pursuant to their individual
4228gopher tortoise agent permits Ð conducting gopher tortoise surve ys on donor
4240sites or capture and transport of gopher tortoises.
424850. The activities authorized under each PetitionerÔs gopher tortoise agent
4258permit are specific and narrow. Mr. KaiserÔs permit authorizes him to
4269conduct gopher tortoise surveys; capture gophe r tortoises using bucket traps
4280and hand shovel excavation; mark, transport, and release captured gopher
4290tortoises at recipient sites; and supervise backhoe excavation of gopher
4300tortoise burrows. Mr. WilsonÔs permit authorizes him to conduct gopher
4310tortoise surveys; and to mark, transport, and release captured gopher
4320tortoises at recipient sites.
43245 1 . None of the activities Petitioners were undertaking in managing the
4337recipient sites were conducted under the authority of their individual gopher
4348tortoise agen t permits.
43525 2 . The Guidelines provide for suspension, revocation, or non - renewal of
4366authorized gopher tortoise agent permits for Ñjust causeÒ as determined by
4377the Commission.
43795 3 . Appendix 15 of the Guidelines contains the specific criteria for
4392suspension , revocation or non - renewal of authorized agent permits. The
4403appendix provides that authorized agents Ñare responsible for their actions
4413associated with [Commission] - permitted activities and other activities that
4423impact gopher tortoises and gopher tortoise burrows.Ò
44305 4 . ÑAny act or omission that does not comply with the statutes or rules
4446related to gopher tortoises [Commission] - approved guidelines, or permit
4456conditions is cause for an infraction to be issued.Ò Appendix 15, Guidelines.
4468Infractions are categ orized by:
4473(1) whether the permit violation risks and/or causes
4481injury or mortality of gopher tortoises, and
4488(2) whether or not the permit violation was self -
4498reported to [the Commission].
4502(emphasis added).
45045 5 . Appendix 15 provides examples of violations falling into both
4516categories. In both cases, the examples (although not comprehensive) are
4526activities relating exclusively to trapping, transporting, and releasing gopher
4535tortoises from a development site to a recipient site (including filing after -
4548action reports following the release of gopher tortoises to a recipient site).
45605 6 . The violations which the Commission alleges occurred on the various
4573recipient sites are outside the scope of PetitionersÔ Gopher Tortoise Agent
4584p ermits. While the recipient site p ermits do list Mr. Kaiser as the agent, the
4600Commission has no authority to discipline Mr. Kaiser Ôs , or his A ssistant,
4613Mr. WilsonÔs, individual agent permit for activities undertaken pursuant to
4623wholly separate recipient site permits. Both rule 68 - 1.010(2)( d) and Appendix
463615 of the Guidelines are clear that discipline of a licensed gopher tortoise
4649agent must be tied to a permit violation , or violation of other agency rule
4663(e.g., submitting false information in an application). It is axiomatic that an
4675agency must follow its own rules. See Collier Cty. v. Fish & Wildlife Conser.
4689CommÔn , 993 So. 2d 69, 74 (Fla. 2d DCA 2008)(agency cannot simply accept
4702representations in local government ordinance to establish restricted boating
4711areas when the agency rule require s it to find that specific factual criteria are
4726met) ( citing Vantage Healthcare Corp. v. Ag. for Health Care Admin ., 687 So.
47412d 306, 308 (Fla. 1st DCA 1997) ) . In this case, the Commission has cited
4757violations of the recipient site permits without citing the holders of those
4769permits and seeks to discipline PetitionersÔ gopher tortoise agent permits
4779without citing any violations of those permits .
47875 7 . The Commission issued the recipient site permits, alleges that
4799violations of those permits have occurred, and has authority to discipline the
4811permittee for the alleged violations. While the recipient site permits state
4822that the designated recipient site agent may undertake the activities
4832permitted therein, and may be as liable for those activities as the permittee ,
4845that statement does not authorize the Commission to revoke or non - renew
4858the agentÔs individual gopher tortoise agent permit , for said alleged violations.
4869Conclusion
48705 8 . The Commission has not established grounds for revocation or non -
4884renewal of Petition ersÔ Authorized Go pher T ortoise A gent permits.
4896A TTORNEY Ô S F EES
490259. On September 3, 2021, Petitioners filed a Motion for AttorneyÔs Fees,
4914Expenses and Costs (ÑMotionÒ) against the Commission pursuant to sections
4924120.569 and 120.595, Florida Statutes (202 1 ) .
493360. The Commission filed its Response to the Motion on September 8,
49452021.
494661. Pursuant to section 120.595(1), fees may be awarded if the
4957undersigned determines that the non - prevailing adverse party participated in
4968the proceedings for an improper purpose. Such determination may be made
4979only after issuance of a final order in this case.
498962. PetitionersÔ plea for fees pursuant to section 120.569 does not require a
5002determination of which party is the prevailing party ; but, in the interest of
5015judicial economy, the Motion will be disposed of as a whole, rather than in
5029bifurcated proceedings.
503163. The undersigned reserves ruling on the Motion following entry of the
5043final order in this case, provided that a renewed motion is filed within
505630 days of the entry of the final order.
5065R ECOMMENDATION
5067Based on the foregoing Findings of Fact and Conclusions of Law, it is
5080R ECOMMENDED that the Commission dismiss the Agency Action letters
5090against Petitioners.
5092D ONE A ND E NTERED this 1 4 th day of February , 2022 , in Tallahassee, L eon
5110County, Florida.
5112S
5113S UZANNE V AN W YK
5119Administrative Law Judge
51221230 Apalachee Parkway
5125Tallahassee, Florida 32399 - 3060
5130(850) 488 - 9675
5134www.doah.state.fl.us
5135Filed with the Clerk of the
5141Division of Administrative Hearings
5145this 1 4 th day of February , 2022 .
5154C OPIES F URNISHED :
5159Kenneth G. Oertel, Esquire Rhonda E. Parnell, Esquire
5167Oertel, Fernandez, Bryant & Florida Fish and Wildlife
5175Atkinson, P.A. Conservation Commissio n
5180Post Office Box 1110 Farris Bryant Building
5187Tallahassee, Florida 32302 - 1110 620 South Meridian Street
5196Tallahassee, Florida 32399 - 1600
5201Ian E. Waldick, Esquire
5205Parker, Hudson, Rainer & Dobbs, LLP Eric Sutton, Executive Director
5215Suite 750 Florida Fish and Wildlife
5221215 South Monroe Street Conservation Commission
5227Tallahassee, F lorida 32301 Farris Bryant Building
5234620 South Meridian Street
5238Emily Norton, General Counsel Tallahassee, Florida 32399 - 1600
5247Florida Fish and Wildlife
5251Conservation Commission
5253Farris Bryant Building
5256620 South Meridian Street
5260Tallahassee, Florida 32399 - 1050
5265N OT ICE OF R IGHT T O S UBMIT E XCEPTIONS
5277All parties have the right to submit written exceptions within 15 days from
5290the date of this Recommended Order. Any exceptions to this Recommended
5301Order should be filed with the agency that will issue the Final Order in th is
5317case.
- Date
- Proceedings
- PDF:
- Date: 05/24/2022
- Proceedings: Petitioners' Renewed Motion for Attorneys' Fees, Expenses, and Costs filed. (DOAH CASE NO. 22-1561F ESTABLISHED)
- PDF:
- Date: 02/14/2022
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 02/14/2022
- Proceedings: Recommended Order (hearing held October 12-14, 2021). CASE CLOSED.
- PDF:
- Date: 12/06/2021
- Proceedings: Petitioners' Proposed Recommended Order and Argument in Support of Motion for Attorney Fees filed.
- PDF:
- Date: 10/11/2021
- Proceedings: Notice of Filing Petitioners, Drew Kaiser and John Wilson's, Exhibits filed.
- PDF:
- Date: 10/11/2021
- Proceedings: Notice of Filing Petitioners, Drew Kaiser and John Wilson's, Exhibits filed.
- PDF:
- Date: 10/08/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for October 11, 2021; 11:00 a.m., Eastern Time).
- PDF:
- Date: 10/05/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for October 5, 2021; 2:30 p.m., Eastern Time).
- PDF:
- Date: 09/27/2021
- Proceedings: Notice of Taking Deposition via Zoom of Eric Eric Seckinger filed.
- PDF:
- Date: 09/23/2021
- Proceedings: Order on Petitioners' Motion to Continue, Respondent's Motion to Quash, and Amending Order of Pre-hearing Instructions.
- PDF:
- Date: 09/17/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for September 22, 2021; 1:00 p.m., Eastern Time).
- PDF:
- Date: 09/14/2021
- Proceedings: Respondent's Amended Notice of Serving Answers to Petitioners' 1st Set of Interrogatories (filed in Case No. 21-002141).
- PDF:
- Date: 09/14/2021
- Proceedings: Respondent's Motion to Quash Petitoner's 3rd Set of Request for Production of Documents and 1st Set of Admissions filed.
- PDF:
- Date: 09/08/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for September 9, 2021; 4:00 p.m., Eastern Time).
- PDF:
- Date: 09/08/2021
- Proceedings: Petitioners' Response in Opposition to Respondent's Motion to Quash or Limit Subpoena Duces Tecum filed.
- PDF:
- Date: 09/08/2021
- Proceedings: Respondent's Response to Petitioners' Motion for Attorney Fees, Expenses And Costs filed.
- PDF:
- Date: 09/07/2021
- Proceedings: Amended Notice of Taking Deposition Duces Tecum (Amended as to Exhibit A - Claire Sunquist Blunden) filed.
- PDF:
- Date: 09/07/2021
- Proceedings: Petitioners' First Requests for Admissions to Respondent, Florida Fish and Wildlife Conservation Commission filed.
- PDF:
- Date: 09/03/2021
- Proceedings: Respondent's Motion to Quash or Limit Subpoena Duces Tecum filed.
- PDF:
- Date: 09/03/2021
- Proceedings: Petitioners' Motion for Attorney's Fees, Expenses and Costs filed.
- PDF:
- Date: 08/31/2021
- Proceedings: Respondent's Notice of Serving Answers to Petitioner's 1st Set of Interrogatories and 1st Request for Production of Documents filed.
- PDF:
- Date: 08/31/2021
- Proceedings: Petitioners' Third Request for Production of Documents to Respondent Florida Fish and Wildlife Conservation filed.
- PDF:
- Date: 08/31/2021
- Proceedings: Notice of Taking Deposition Duces Tecum - Claire Sunquist Blunden filed.
- PDF:
- Date: 08/20/2021
- Proceedings: Notice of Hearing by Zoom Conference (hearing set for October 12 through 14, 2021; 9:00 a.m., Eastern Time).
- PDF:
- Date: 08/19/2021
- Proceedings: Petitioners' Second Request for Production of Documents to Respondent Florida Fish and Wildlife Conservation Commission filed.
- PDF:
- Date: 08/11/2021
- Proceedings: Order Denying Petitioners' Motion to Stay, Canceling Telephonic Motion Hearing, and Requiring Response to Initial Order.
- PDF:
- Date: 08/06/2021
- Proceedings: Reply in Support of Drew Kaiser's Motion to Suspend the Time to Respond to the Initial Order and to Continue the Final Hearing and Depositions or Testimony of Drew Kaiser Pending Outcome of Criminal Matters filed.
- PDF:
- Date: 08/03/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for August 12, 2021; 10:00 a.m., Eastern Time).
- Date: 08/03/2021
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 07/27/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for August 3, 2021; 10:00 a.m., Eastern Time).
- Date: 07/26/2021
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 07/22/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for July 26, 2021; 1:30 p.m., Eastern Time).
- PDF:
- Date: 07/19/2021
- Proceedings: Response and Objection to Motion to Stay and Motion to Dismiss filed.
- PDF:
- Date: 07/13/2021
- Proceedings: John Wilson's First Request for Production of Documents to Respondent Florida Fish and Wildlife Conservation Commission filed.
- PDF:
- Date: 07/13/2021
- Proceedings: John Wilson's Notice of Service of First Set of Interrogatories on FWC filed.
Case Information
- Judge:
- SUZANNE VAN WYK
- Date Filed:
- 07/07/2021
- Date Assignment:
- 07/15/2021
- Last Docket Entry:
- 05/24/2022
- Location:
- Edgewater, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Kenneth G. Oertel, Esquire
Post Office Box 1110
Tallahassee, FL 323021110
(850) 521-0700 -
Rhonda E. Parnell, Esquire
620 South Meridian Street
Tallahassee, FL 32399
(850) 487-1764 -
Ian E. Waldick, Esquire
Post Office Box 1110
Tallahassee, FL 32302
(850) 521-0700 -
Rhonda E Parnell, Esquire
Address of Record -
Ian E Waldick, Esquire
Address of Record