21-002141 John Wilson vs. Florida Fish And Wildlife Conservation Commission
 Status: Closed
Recommended Order on Monday, February 14, 2022.


View Dockets  
Summary: The Commission does not have authority to discipline Petitioners' individual Gopher Tortoise Agent Licenses for alleged violations of recipient site permits.

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.

Select the PDF icon to view the document.
PDF
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: 05/16/2022
Proceedings: Agency Final Order
PDF:
Date: 05/16/2022
Proceedings: Agency Final Order
PDF:
Date: 05/16/2022
Proceedings: Agency Final Order filed.
PDF:
Date: 02/14/2022
Proceedings: Recommended Order
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: Respondent's Proposed Recommended Order filed.
PDF:
Date: 12/06/2021
Proceedings: Petitioners' Proposed Recommended Order and Argument in Support of Motion for Attorney Fees filed.
PDF:
Date: 11/15/2021
Proceedings: Notice of Filing Transcript.
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: Response and Objection to Motion in Limine 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: 10/07/2021
Proceedings: Joint Pre-Hearing Stipulation filed.
PDF:
Date: 10/06/2021
Proceedings: Petitioners' Motion in Limine filed.
PDF:
Date: 10/06/2021
Proceedings: Order Denying Continuance of Final Hearing.
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: 09/28/2021
Proceedings: Petitioners' Renewed Motion to Continue Final Hearing filed.
PDF:
Date: 09/27/2021
Proceedings: Notice of Taking Deposition via Zoom of Scott Sumpter filed.
PDF:
Date: 09/27/2021
Proceedings: Notice of Related Case filed.
PDF:
Date: 09/27/2021
Proceedings: Notice of Taking Deposition via Zoom of Joshua Horst filed.
PDF:
Date: 09/27/2021
Proceedings: Notice of Taking Deposition via Zoom of Eric Eric Seckinger filed.
PDF:
Date: 09/24/2021
Proceedings: Notice of Taking Deposition via Zoom of Nicole Savona filed.
PDF:
Date: 09/24/2021
Proceedings: Notice of Taking Deposition via Zoom of Kyle Brown filed.
PDF:
Date: 09/24/2021
Proceedings: Notice of Taking Deposition via Zoom of Samantha Cobble 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: 09/21/2021
Proceedings: Respondent's Witness List filed.
PDF:
Date: 09/21/2021
Proceedings: Petitioners' Final Witness Disclosure filed.
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: 09/13/2021
Proceedings: Petitioners' Expert Witness List filed.
PDF:
Date: 09/13/2021
Proceedings: Order Limiting Subpoena Duces Tecum.
PDF:
Date: 09/13/2021
Proceedings: Respondent's Expert Witness List filed.
PDF:
Date: 09/09/2021
Proceedings: Petitioners' Motion to Continue Final Hearing 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: Response and Objection to Motion to Strike filed.
PDF:
Date: 09/03/2021
Proceedings: Petitioners' Motion for Attorney's Fees, Expenses and Costs filed.
PDF:
Date: 09/01/2021
Proceedings: Petitioner John Wilson's Motion to Strike 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: 08/31/2021
Proceedings: Petitioner Drew Kaisers Motion to Strike filed.
PDF:
Date: 08/20/2021
Proceedings: Notice of Filing Transcript.
PDF:
Date: 08/20/2021
Proceedings: Order of Pre-hearing Instructions.
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: Joint Response to Initial Order filed.
PDF:
Date: 08/19/2021
Proceedings: Petitioners' Second Request for Production of Documents to Respondent Florida Fish and Wildlife Conservation Commission filed.
PDF:
Date: 08/16/2021
Proceedings: Respondent's Response to Initial Order filed.
PDF:
Date: 08/16/2021
Proceedings: Petitioners' Response to Initial Order 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: 07/29/2021
Proceedings: Order Denying Motions to Dismiss.
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: 07/15/2021
Proceedings: Order of Consolidation (DOAH Case Nos. 21-2139 and 21-2141)
PDF:
Date: 07/15/2021
Proceedings: Notice of Transfer.
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.
PDF:
Date: 07/13/2021
Proceedings: 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: 07/07/2021
Proceedings: Motion to Consolidate filed.
PDF:
Date: 07/07/2021
Proceedings: Petitioner John Wilson's Motion to Dismiss filed.
PDF:
Date: 07/07/2021
Proceedings: Initial Order.
PDF:
Date: 07/07/2021
Proceedings: Agency action letter filed.
PDF:
Date: 07/07/2021
Proceedings: Petition for Formal Administrative Proceeding filed.
PDF:
Date: 07/07/2021
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record 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

Related Florida Statute(s) (4):

Related Florida Rule(s) (1):