21-002980 Kimberly Kiehl vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Tuesday, February 1, 2022.

Summary: Petitioner's application for a license to possess Class II wildlife should be denied because false, misleading, and inaccurate information was submitted to the Commission.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K IMBERLY K IEHL ,

Petitioner ,

vs. Case No. 21 - 2980

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on December 1 , 2021, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative Hearings

(DOAH) .

A PPEAR ANCES

For Petitioner: Kimberly Kiehl, pro se

4655 Poplar Court

Lakeland, Florida 33810

For Respondent: Rhonda E. Parnell, Esquire

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Me ridian Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether PetitionerÔs application for a license to possess Class II w ildlife

for personal use should be approved.

P RELIMINARY S TATEMENT

By letter dated August 25, 2021, the Florida Fi sh and Wildlife

Conservation Commission (FWC or Commission) notified Kimberly Kiehl

(Petitioner) that her application for a license to possess Class II w ildlife for

personal use had been denied. Petitioner timely requested a hearing to

contest the denial a nd the matter was referred to DOAH to conduct a

disputed - fact hearing.

At the hearing, Petitioner testified on her own behalf and also offered

testimony from Kadir Olav. FWC called the following witnesses: Damon

Saunders, an investigator with FWC; and Jo hn Conlin, the administrative

lieutenant for FWCÔs captive wildlife offices. FWC Exhibits 1 through 4 were

received into evidence. There were no exhibits admitted into evidence on

behalf of Petitioner. The proceedings were recorded and a transcript of the

disputed - fact hearing was ordered.

By agreement, the parties were given 20 days after the filing of the

transcript in which to file proposed recommended orders. The Transcript was

filed on January 10, 2022. Each party timely filed its Proposed Recommende d

Order, and the same were considered in preparing this Recommended Order.

F INDINGS OF F ACT

1. FWC is the state agency with exclusive jurisdiction to regulate all wild

animal life in Florida. See Art. IV, § 9, Fla. Const . 1

2. All persons who possess capti ve wildlife for the purposes of Ñpersonal

possessionÒ must have a license from FWC. See § 379.3762(1), Fla. Stat.

1 All references to the Florida Constitution, Florida Statutes, and Florida Administrative

Code are to the 2021 version, unless otherwise indicated.

3. By rule promulgated by FWC, categories of wildlife for which a license

is required are broken down into three classes. See Fla. Admin. Cod e R. 68A -

6.002. Generally, a person cannot possess Class I animals as personal pets

unless they came into their possession prior to 1988. Class I animals include

24 different species generally considered extremely dangerous, and include

wildlife such as ch impanzees, gorillas, orangutans, baboons, leopards,

jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and

K omodo dragons. See Fla. Admin. Code R. 68A - 6.002(1)(a).

4. Class II animals include 38 different species that may, with a pr oper

license, be possessed as personal pets or for commercial purposes. Class II

animals have the potential to cause harm but not to the extent of Class I

animals and include wildlife such as s ervals, Howler monkeys, Patas

monkeys, Vervet monkeys, Macaques , bobcats, wolves, wolverines, honey

badgers, and alligators. See Fla. Admin Code R. 68A - 6.002(1)(b).

5. Class III animals include wildlife not listed as Class I or II. See Fla.

Admin. Code R. 68A - 6.002(1)(c).

6. On or about March 17, 2021, Petitioner subm itted to the Commission

an Application for License to Possess Wildlife for Personal Use (application).

Petitioner submitted the application so as to secure a permit to possess a

serval, which is categorized as Class II wildlife. The application contains an

attestation section which states:

I swear and affirm that the information provided is

true and correct. I agree to adhere to the provisions

of Chapter 379 Florida Statutes, and the rules and

regulations of the Commission pertaining to the

possession of wi ldlife. I understand that my wildlife

facilities are subject to inspection by Commission

personnel as required by Florida Statute.

Petitioner signed and dated the application as required.

7. By correspondence dated April 14, 2021, the Commission notified

Petitioner that her application could not be processed until the $140

application fee was paid.

8. By inference, it appears as though Petitioner paid the application fee ,

since the Commission, by correspondence dated May 27, 2021, informed

Petitioner that additional information was needed in order to process her

application. Among other things, the Commission requested that Petitioner

provide the following:

Documentation of experience for Class II Felidae is

missing or incomplete. Applicant must

demonstrate /document one year of experience (to

consist of not less than 1,000 hours) in the care,

feeding, handling, and husbandry of the species for

which the permit is sought, or other species in the

same biological family that are similar in size,

characteristics , care and nutritional requirements.

Documentation of experience must include specific

date(s), time(s) and location(s) where experience

was obtained and a detailed description of the type

of experience obtained.

Letters of reference for Class II Felidae are missing

or incomplete. Two letters of reference must be

provided from individuals having personal

knowledge of the applicantÔs stated experience. One

letter of reference must be from someone licensed

by the Commission for wildlife of the same family

an d the same or higher class for which you are

seeking authorization or a representative of a

professional organization or governmental

institution. Examples of such organizations or

institutions include, but are not limited to,

Universities, Public Service Agencies, Zoological

Associations, Herpetological Societies and

veterinarians. No more than one letter of reference

may be from a family member of the applicant.

9. Although the date of submission is not apparent from the evidence

presented during the fin al hearing, Petitioner, in support of her application,

eventually submitted Ñdocumentation of experienceÒ forms which purportedly

reflect dates, hours worked, and a description of the work performed with

servals from February 6, 2020, through February 14, 2021.

10. At some point in the process, Petitioner also submitted letters of

reference from Kadir Olav and Tyler Funk. The letter from Kadir Olav is

dated February 22, 2021, and the letter from Tyler Funk is dated March 14,

2021.

11. Tyler Funk stated the following in the letter of reference submitted in

support of PetitionerÔs application:

To whom it may concern,

I recommend Kimberly Kiehl to get her wildlife

license as she has always been incredibly good with

animals. As long as I can remember she found and

rehabilitated stray animals so that they could be

adopted out.

She has a degree as she went to school to be a

veterinary assistant. She is exceptionally good with

animals and seems to be very knowledgeable in the

subject.

If you have any question, pl ease feel free to contact

me.

Thank you,

Tyler W. Funk

12. Mr. Olav stated the following in his letter of reference:

To whom it may concern. I am recommending that

Kimberly Schaff Kiehl be approved for the Class 2

Wildlife Permit. I know her very well a nd I know

that she has well over the 1000 hours of experience

necessary. She has helped partake in the caring of

my animals on countless occasions and absolutely

deserves a permit of her own. I cannot think of

someone I know that is more deserving. I know she

has all the skills and resources required to do a

fantastic job with her future animals. I of course

have a license of my own please feel free to contact

me if you have any questions. Thank you!

Sincerely,

Kadir Olav

13. Damon Saunders is an investi gator for the Commission and is

assigned to the office in Titusville, Florida. Investigator Saunders is a sworn

law enforcement officer and has worked for the Commission since 2004.

14. Investigator Saunders performs annual license holder inspections as

pa rt of his duties, and sometime around mid - November 2020 he met with

Mr. Olav for an inspection. At the time of the inspection, Mr. Olav held a

Class II personal pet license for a pet serval.

15. During his meeting with Mr. Olav, I nvestigator Saunders, in a ddition

to verifying that Mr. Olav still possessed a serval, reminded Mr. Olav that his

Class II license was about to expire and that Ñhe needs to get on the ball and

reapply so he didnÔt have a lapse in his licensure.Ò Despite the warning,

Mr. Olav allowe d his Class II personal pet license to lapse on November 29,

2020.

16. As previously noted, Mr. OlavÔs letter of reference is dated

February 22, 2021, which is nearly three months after his Class II license

expired. Given Investigator SaundersÔ credible te stimony that in November

2020 he reminded Mr. Olav of the imminent expiration of his C lass II license,

it is reasonable to infer that when Mr. Olav authored his letter of reference ,

he knew that he no longer held a valid Class II license. Therefore, when

M r. Olav stated in his letter of reference that ÑI of course have a license of my

own,Ò this statement, which was offered in support of PetitionerÔs application,

had the effect of conveying information that was false, misleading, and

inaccurate.

17. Landon Ailstock works for the Commission as a captive wildlife

investigator, and his duties include assisting with the Class II licensure

process. On July 1, 2021, Investigator Ailstock sent the following email to

Petitioner:

Ms. Kiehl,

Per our conversation, ple ase provide the following

information:

* What location(s) your Class II experience was

obtained at. Additionally, how many servals you

were working with at those facilities.

* Provide clarification as to your major or college

coursework. (Individuals who [se] college

coursework was in a biological science can

potentially be exempt from providing experience

hours).

* Attached to this email is your experience log for

servals. Please provide further details regarding

the descriptions in you r log.

Once this information is received, your application

should be complete.

18. On July 11, 2021, Petitioner sent the following email in response to

Investigator AilstockÔs request for additional information:

Landon,

I have received all of my Class II experience at

Ka dir OlavÔs residence. His address is

2928 Blooming Alamanda Loop, Kissimmee, FL. He

has 2 servals and 4 Savannahs that I did my hours

with.

I also received my Vet Teck license back in 1988 at

MerryField School. The address is 5040 NE 13

Ave., Ft. Lauderda le, FL 33334. Attached is some of

the experience that Kadir presented to me in my

learning so that I can receive my wildlife license .

Thank you,

Kimberly Kiehl

19. As previously noted, Petitioner submitted, as part of her application, a

log sheet showing what are purportedly practical experience hours secured

between February 6, 2020, and February 14, 2021. According to Petitioner,

her practical experience garnered during this period totals 1,015.5 0 hours,

and each hour earned was done so while working wi th Mr. Olav. When

Petitioner informed Investigator Ailstock that she received ÑallÒ of her Class

II experience at Kadir OlavÔs residence, it was PetitionerÔs intent to receive

credit for the entirety of the 1,015.5 0 hours. By the time Mr. OlavÔs license

ex pired on November 29, 2020, Petitioner had , however, acquired only 719.50

hours, which is short of the 1 , 000 hours needed in order to satisfy the

licensure requirements. Because Petitioner did not acquire ÑallÒ (i.e. at least

1,000) of her required hours f rom Mr. Olav, given that his license expired on

November 29, 2020, her statement to the Commission that she had done so

was false, misleading, and inaccurate.

20. Because Mr. Olav was known by the Commission to own at least one

serval, the Commission, once Mr. OlavÔs license expired, attempted over the

course of several months to contact him in an effort to garner information

about the status of his animal(s). On July 9, 202 1 , I nvestigator Saunders was

finally able to personally meet with Mr. Olav, and his body camera recorded

the encounter.

21. At the beginning of the interaction between Mr. Olav and Investigator

Saunders, Mr. Olav explained that his serval had died. Investigator Saunders

entered Mr. OlavÔs home and verified that the serval was not present. While

the two were exiting the home, Mr. Olav initiated the following exchange:

Mr. Olav : Back whenever everything was still

pretty good, I had a friend of mine who was

interested in getting her license.

Invest. Saunders : Kimberly?

Mr. Olav : Yeah, cause I just È searched through

my emails to see, like uh, why I havenÔt heard

anything È like in regards to her È . So, I typed in

Florida Fish and Wildlife in my email and I saw a

bunch of stuff like your email, I saw something

from someone else asking for my phone number, or

something like that. And then I was thinking like

crap, I didnÔt check the date on that so I donÔt know

how long ago that was, but would they still allow

me to be a reference at this point È since that was

months ago?

Invest. Saunders : I Ôll have to get back with them.

You may not be eligible to be a reference, but it

depends.

Mr. Olav : Cause at that time I still had the serval.

That was a long time ago. That was around the

time, I think the last time I saw you.

Invest. Saunders : Oh, so you were just being a

reference? She didnÔt actually come here to get

hours with you?

Mr. Olav : No, I mean, no, no. She has È I know her

personally.

Invest. Saunders : SheÔs got her own experience?

Mr. Olav : Yeah, yeah, exactly. I was just being a

refere nce.

Invest. Saunders : So, sheÔs not trying to get hours

from you?

Mr. Olav : No, no, no È . But yeah, that was when I

still had like servals here and everything, and I

offered to be a reference. But I donÔt know whatÔs

going on with my - - I never renewe d because of

what happened. So, I donÔt know if I can even still Ï

Invest. Saunders : When did the cat die?

Mr. Olav : ItÔs been months. Yeah, itÔs been awhile.

Maybe about two months - - maybe two or three

months. Something like that, yeah.

22. Soon after meeting with Mr. Olav, Investigator Saunders contacted

Investigator Ailstock, provided him with a copy of the body camera recording,

and informed him of the statements made by Mr. Olav about Petitioner.

2 3 . Because of the apparent conflict between the sta tements of Petitioner

and Mr. Olav, the Commission ceased its evaluation of PetitionerÔs

application, and by correspondence dated August 25, 2021, informed

Petitioner of its intent to deny her application as stated below:

Submitted with your application we re experience

hours obtained with servals at 2928 Blooming

Alamanda Loop, Kissimmee, Florida, with Kadir

Olav. The hours ranged from February 6, 2020,

through February 14, 2021. According to Captive

Wildlife records, Mr. Olav has not had an active

license for servals since November 29, 2020.

Additionally, when Captive Wildlife staff contacted

Mr. Olav to confirm your experience, he stated he

was to be used as a reference but was not

responsible for your hours of experience.

The experience hours you have su bmitted in your

application do not coincide with Mr. OlavÔs

statement or licensure. The FWC has determined

you submitted materially false information when

applying for your [personal pet license].

Submission of false information to FWC constitutes

ground for denial under Rule 68 - 1.010(1)(a) and (b),

Florida Administrative Code È .

Your application for a PPL contains false

information and therefore is denied.

C ONCLUSIONS OF L AW

2 4 . DOAH has jurisdiction over the parties and subject matter of this

proceed ing. §§ 120.569 and 120.57(1), Fla. Stat. (2020). See also Fla. Admin.

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

25 . As the applicant for a Class II license, Petitioner bears the ultimate

burden of proving entitlement by a preponderance of the evidence. See Fla.

DepÔt of C hild. & Fams. v. Davis Family Day Care Home , 160 So. 3d 854, 856

(Fla. 2015); DepÔt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932,

934 (Fla. 1996).

26 . FWC has the burden of proving, by a preponderance of the evidence,

that Petitioner violated c ertain statutes and rules, and is, thus, unfit for a

Class II license. See Davis Family Day Care Home , 160 So. 3d at 856.

27 . Section 379.303(1), Florida Statutes, provides as follows:

The commission shall promulgate rules defining

Class I, Class II, and C lass III types of wildlife.

The commission shall also establish rules and

requirements necessary to ensure that permits are

granted only to persons qualified to possess and

care properly for wildlife and that permitted

wildlife possessed as personal pets w ill be

maintained in sanitary surroundings and

appropriate neighborhoods.

28 . Florida Administrative Code Rule 68A - 6.004 provides, in part, as

follows:

(1) Permits to possess wildlife in captivity, issued

pursuant to Section 379.3761 or 379.3762, F.S., an d

the provisions of this chapter, shall authorize the

keeping of captive wildlife, of the type and number

specified in applications approved by the

Commission, in accordance with law and

Commission rules. Captive wildlife maintained

under permit shall, unl ess otherwise authorized, be

maintained only at the facility specified in the

permit application and approved by the

Commission.

(2) Qualification requirements for a permit to

possess Class I or Class II wildlife:

All applicants shall qualify for permits as follows:

(a) Age Requirement: Applicants to possess Class I

or Class II wildlife shall be at least 18 years of age.

(b) Applicants shall not have been convicted of any

violation of captive wildlife regulations or

venomous reptile or reptile of concern regulations

involving unsafe housing of wildlife or that could

potentially endanger the public; any violation

involving the illegal commercialization of wildlife;

any violation involving cruelty to animals; or any

violation involving importation of wildli fe within

three (3) years of the date of application.

(c) Experience Requirement for Class I permits:

1. Applicants shall demonstrate no less than one (1)

year of substantial practical experience (to consist

of no less than 1000 hours) in the care, feedi ng,

handling and husbandry of the species for which

the permit is sought, or other species, within the

same biological family (except crocodilians which

shall be in the same biological order; ratites which

shall be in the same biological sub - order; and

cou gars, panthers or cheetahs which shall remain

at the genus level), which are substantially similar

in size, characteristics, behavior, habits, care and

nutritional requirements to the species for which

the permit is sought.

2. For purposes of demonstratin g compliance,

applicants shall submit documentation of such

experience, including:

a. A description of the specific experience acquired.

b. The dates and times the experience was obtained

and the specific location(s) where acquired.

c. References of no less than two (2) individuals, no

more than one of which may be a relative of the

applicant, having personal knowledge of the

applicantÔs stated experience. One of these

references must be licensed by the commission for

wildlife of the same family and the same or higher

class for which the applicant is seeking

authorization or a representative of a professional

organization or governmental institution.

Examples of such organizations or institutions

include, but are not limited to, universities, public

servi ce agencies, zoological associations,

herpetological societies and veterinarians.

d. Additional documentation may include records of

prior permits for the keeping of captive wildlife,

employment records, and any other competent

documentation of the requis ite experience.

3. Documented educational experience in zoology or

other relevant biological sciences, obtained at the

college or technical school level or above, may

substitute for up to six months or 500 hours of the

required experience.

4. Providing f alse information to document the

applicantÔs experience, by the applicant or any

reference, is prohibited as provided in Sections

837.012 and 837.06, F.S.

(d) Experience and examination requirements for

Class II permits:

1. Applicants may qualify for a p ermit for Class II

wildlife by documenting one year of experience (to

consist of no less than 1000 hours) as defined in

subparagraphs 68A - 6.004(2)(c)1. - 4., F.A.C., above.

If the applicant is unable to document such

experience, as an alternative, the applic ant may

take a written examination.

29 . Section 379.3503 provides as follows:

A person who swears or affirms to any false

statement in any application for a license or permit

provided by this chapter commits a Level Two

violation under s. 379.401, and a ny false statement

contained in any application for such license or

permit renders the license or permit void.

3 0 . Florida Administrative Code Rule 68 - 1.010(1) provides, in part, as

follows:

The following shall apply to all licenses, permits or

other auth orizations in addition to requirements

specific to individual licenses.

(1) The Commission shall deny applications for any

license, permit or other authorization based upon

any one or more of the following grounds:

(a) Submission by the applicant of fal se,

misleading, or inaccurate information in the

application or in any supporting documentation

provided by the applicant or on behalf of the

applicant relating to the license, permit, or other

authorization, or omission of any information which

has a fals e, misleading or inaccurate effect.

(b) Failure of the applicant to meet eligibility

requirements or criteria for issuance of the license,

permit or other authorization.

3 1 . As noted in the Findings of Fact, Kadir Olav submitted on behalf of

Petitioner information that was false, misleading, and inaccurate , and the

same was therefore submitted in violation of rule 68 - 1.010(1) (a).

3 2 . As noted above , rule 68A - 6.004(2)(c)2.c. provides, in part, that at least

one of an applicantÔs references with personal k nowledge of the applicantÔs

stated experience, Ñmust be licensed by the commission for wildlife of the

same family and the same or higher class for which the applicant is seeking

authorization.Ò Petitioner suggests that this requirement be interpreted such

that a reference need not be licensed during the entirety of the period during

which an applicant seeks credit.

3 3 . It has long been recognized that one of the canons of statutory

construction requires a court to avoid a literal interpretation of statuto ry

language that would result in an absurd or ridiculous conclusion. See State v.

Sullivan , 95 Fla. 191 (Fla. 1928).

3 4 . Section 379.303 ensures that captive wildlife is properly cared for, and

the public appropriately protected, by authorizing the Commiss ion to

establish rules and requirements that ensure that only qualified persons are

in possession of regulated wildlife. One of the ways of achieving this goal is

by requiring that the person seeking a Class II license be properly supervised

while obtainin g substantial practical experience or, alternatively, that an

applicant successfully complete a written examination. It would be absurd,

and indeed inconsistent with the stated legislative goals, to embrace an

interpretation of rule 68A - 6.004(2)(c)2.c. tha t would allow an individual, such

as Mr. Olav, to continue to serve as the Ñreference with a licenseÒ for periods

during which the individual was not licensed.

3 5 . As noted in the Findings of Fact, PetitionerÔs representation to the

Commission that she Ñr eceived all of [her] Class II experience at Kadir OlavÔs

residenceÒ is false, misleading, and inaccurate , because Petitioner acquired

only 719.5 0 hours of substantial practical experience by the time Mr. OlavÔs

license expired on November 29, 2020. The fac t that Petitioner might not

have known about the status of Mr. OlavÔs license when she submitted her

application is immaterial and irrelevant since the framework for evaluating

an application for a Class II license does not allow an applicant to circumvent

licensing requirements by claiming a lack of knowledge. Simply stated, it was

PetitionerÔs obligation to verify the truth and accuracy of all information

related to her application before submitting the information to the

Commission.

3 6 . Petitioner faile d to meet her ultimate burden of persuasion.

3 7 . Accordingly, it is appropriate to deny PetitionerÔs application for a

Class II license to possess Class II wildlife for personal possession. See Fla.

Admin. Code R. 68 - 1.010(1)(e)(authorizing the Commission to Ñdeny

applications for any license, permit or other authorizationÒ based on a

Ñ[f]ailure by the applicant at any time to comply with chapters 369, 379 or

828, F.S., or the rules of the Commission È . Ò).

R ECOMMENDATION

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

RECOMMENDED that the Florida Fish and Wildlife Conservation

Commission issue a f inal o rder denying Petitioner Kimberly KiehlÔs

application for a license to possess Class II wildlife for personal possession.

D ONE A ND E N TERED this 1st day of February , 2022 , in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Adm inistrative Hearings

this 1st day of February , 2022 .

C OPIES F URNISHED :

Kimberly Kiehl Eric Sutton, Exec utive Director

4655 Poplar Court Florida Fish and Wildlife

Lakeland, Florida 33810 Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Rhonda E. Parnell, Esquire Emily Norton, Gen eral Counsel

Florida Fish and Wildlife Florida Fish and Wildlife

Conservation Commission Conservation Commission

Farris Bryant Building Farris Bryant Building

620 South Meridian S treet 620 South Meridian Street

Tallahassee, Florida 32399 Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. A ny exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.