12-002909 Tarzan&Apos;S Big Cat Sanctuary vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Friday, March 29, 2013.

Summary: FWC should deny application to possess big cats in a proposed sanctuary because the individual applicant was responsible for multiple violations of FWC rules governing the possession of big cats at a facility that FWC closed down.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELANIE BOYNES and TARZAN'S )

BIG CAT SANCTUARY, INC., )

)

Petitioner s , )

) Case No. 12 - 2909

vs. )

)

FLORIDA FISH AND WILDLIFE )

CONSERVATION COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 22 and 23, 2013, in West Palm Beach, Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrativ e Hearings (DOAH).

APPEARANCES

For Petitioner: Robert A. Melchiorre, Esquire

Perlet and Shiner

Suite 701

515 North Flagler Drive

West Palm Beach, Florida 33 401

For Respondent: Ryan Smith Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUE

Whether the Florida Fish and Wildlife Conservation

Commission (FWC) should grant or deny the application for a

li cense to Possess Class I and/or Class II Wildlife for

Exhibition or Publ ic Sale submitted to FWC by Melanie Boynes and

Tarzan's Big Cat Sanctuary, Inc. (Ms. Boynes or, collectively,

Petitioners).

PRELIMINARY STATEMENT

On or about April 20, 2012, Petitioners submitted to FWC an

application for a License to Possess Class I and/o r Class II

Wildlife for Exhibition or Public Sale (the subject application)

at a facility located at 3384 C Road, Loxahatchee, Florida (the

premises ). Petitioners indicated on their application that the

application was for a sanctuary for big cats (the pr oposed

facility) . Prior to February 27, 2012, big cats had been housed

on the premises pursuant to two licenses to "Possess Class I

and/or Class II Wildlife for Exhibition or Public Sale" for the

purported purposes of exhibition and/or sale (the prior

fac ility). As will be discussed below, one of those license had

been issued to Ms. Boynes and the other had been issued to Steve

Sipek (Mr. Sipek).

On August 10, 2012, FWC issued its "Notice of Intent to

Deny License Application," which stated the grounds fo r the

denial. Those grounds will be discussed in the Findings of Fact

section of this Recommended Order. Thereafter, Petitioners

timely filed a Petition for Administrative Proceeding, the

matter was forwarded to DOAH, and this proceeding followed.

At the formal hearing, the parties presented three

consecutively - numbered joint exhibits, each of which was

admitted into evidence. Petitioners presented the testimony of

Ms. Boynes, Katherine Stearns, and Vernon Yates. Petitioners

presented two consecutively - numbered exhibits, which were

admitted into evidence. FWC presented the testimony of Shannon

Wiyda, Jon Garzaniti, Megan Adams, Dr. Gregory Gaj, and

Dr. Laurie Gage. FWC presented the following pre - marked

exhibits, each of which was admitted into e vidence: 1 - 5, 7 - 10,

13, 14, 22 - 27, 31, and 32.

Prior to the formal hearing, the parties executed a Joint

Pre - Hearing Stipulation that contained factual stipulations.

Those stipulated facts have been incorporated in this

Recommended Order to the extent th e stipulated facts have been

found to be relevant.

A Transcript of the proceedings, consisting of two volumes,

was filed on January 11, 2013. Both parties filed Proposed

Recommended Orders (PROs), which have been duly considered by

the undersigned in the preparation of this Recommended Order.

All statutory references are to Florida Statutes (2012).

All references to rules are to the rule in effect as of the

entry of this Recommended Order.

FINDINGS OF FACT

1. FWC is the agency of the State of Florida that

regulates the possession, sale, and display of captive wildlife

in Florida.

2. Petitioners applied for the subject license by filing

Application ID No. 2038 with FWC on or about April 20, 2012. 1 /

Petitioners want to operate the proposed facility as a sanctuary

for big cats. The operation of the proposed facility as a

sanctuary would not require commercial activity, and it would

not require a license from the United States Department of

Agriculture ( USDA ) .

3. Ms. Boynes was licensed by FWC from Sept ember 25, 2006,

to October 2, 2011 , to possess Class I and Class II wildlife

"for exhibition or public sale" at the prior facility. Ms.

Boynes represented to FWC on the 2006 license application , and

on the subsequ ent annual renewal applications (the prior FWC

applications), that the intended commercial activity for the

prior facility was a "permanent exhibition." That operation

required commercial activity at the facility, and it required a

license from the USDA. Ms. Boynes applied for the requisite

USDA license, but she was denied that license by the USDA. On

her USDA application, she represented that she intended to keep

the big cats at the prior facility as pets. Ms. Boynes's

representation s to FWC that she intended to possess the big cats

as a "perm anent exhibit" on the prior FWC applications were

misrepresentation s of her intentions. As will be discussed

below, there was no evidence that the big cats were being

possessed at the prior facility as anything other than pets.

4. Ms. Boynes applied fo r a renewal of her FWC license

prior to its expiration on October 2, 2011. The FWC denied that

application for renewal. 2 /

5. On March 1, 2012, Ms. Boynes incorporated Tarzan's Big

Cat Sanctuary, Inc. ( the corporate Petitioner ) as a not - for -

profit corpora tion for purposes that included submitting the

subject application. Ms. Boynes is president of the corporate

Petitioner.

6. The premises consist of caging for big cats, an open -

air area, and perimeter fencing on a five - acre tract . While the

prior facili ty has been operated under the name of Tarzan's Big

Cat Sanctuary for many years, the business was not incorporated

until March 1, 2012.

7. Mr. Sipek is a former actor who once starred in Tarzan

movies. Mr. Sipek held a FWC license for the prior facility and

possessed big cats there for many years before Ms. Boynes bec ame

involved with the prior facility. Mr. Sipek's FWC license

authorized him to possess Class I and Class II wildlife for the

same purposes as Ms. Boynes's license. His license also

requir ed commercial activity at the prior facility, and it

required a license from USDA. Mr. Sipek has not held a FWC

license since May 5, 2011. There was no evidence that he ever

held a USDA license.

8. Ms. Boynes first became associated with the prior

facil ity as a volunteer in 2006. Ms. Boynes has been residing

on the premises with Mr. Sipek since December 8, 2007.

9. Mr. Sipek was listed as vice president of the

corporation when it was first incorporated. Mr. Sipek has not

been a n officer or director of the corporate Petitioner since

October 25, 2012.

10. Until February 27, 2012, three big cats were housed at

the prior facility. The prior facility had a four - and - a - half

year - old tiger named Lepa, a seven - year - old tiger named Bo, and

a 17 year - old leo pard named Oko. On February 27, 2012, Mr.

Sipek was arrested and FWC removed Lepa, Bo, and Oko from the

facility. FWC delivered all three cats to Vernon Yates, who has

provided them sanctuary. All three cats were healthy when Mr.

Yates received them. M s. Boynes intends to have all three of

those animals returned to the proposed facility if the subject

application is granted and Petitioners become licensed to

operate the proposed facility as a sanctuary.

11. Shannon Wiyda and Jon Garzaniti are investig ators

employed by FWC. As part of their duties, they conduct

inspections of animals in caged security enclosures to ensure

humane treatment and sanitary conditions for animals and to make

sure the public is kept safe.

12. Inv. Wiyda conducted an inspec tion of the prior

facility in September 2007. Ms. Boynes was present during that

inspection.

13. Numerous violations were detected during that

inspection. Those violations included gaps in caging, rust on

caging, and vegetation on fencing. Gaps in cagi ng can enable an

animal to escape and can enable visitors to the facility to get

too close to an animal. Rust on caging can cause the cage to

lose its structural integrity and could cause parts of the cage

to break off, leaving a sharp object that could i njure an

animal. Vegetation on the fences compromised the structural

integrity of the fencing, and provided a means for the animals

to climb the fencing.

14. The caging and fencing deficiencies constituted a

potential danger to the animals and to the p ublic.

15. Ms. Boynes received verbal warnings of the violations

and a copy of the written report generated by Inv. Wiyda.

16. Inv. Wiyda conducted an inspection of the prior

facility in October 2008. Ms. Boynes was present during that

inspection.

1 7. Some deficiencies present in the 2007 inspection had

been corrected, but others had not. There were still caging and

fencing deficiencies. Gaps in the caging and rust were still

present. The wire used to connect fencing or caging was not of

sufficie nt gauge (strength). Vegetation was overgrowing the

perimeter fence. Structures had been placed too close to the

perimeter fence.

18. The caging and fencing deficiencies constituted a

potential danger to the animals and to the public.

19. Ms. Boynes received verbal warnings of the violations

and a copy of the written report generated by Inv. Wiyda.

20. Inv. Wiyda conducted an inspection of the prior

facility in March 2009. Ms. Boynes was present during that

inspection.

21. Numerous caging and fenci ng deficiencies were detected

during that inspection. Wire less than the required nine - gauge

was used to connect pieces of the cages and fencing. Surface

rust was observed. One of the animal enclosures did not have a

roof, which is required to prevent a nimals from escaping.

Structures were placed too close to the perimeter fencing.

Vegetation was growing over parts of the perimeter fence.

22. The caging and fencing deficiencies constituted a

potential danger to the animals and to the public.

23. Inv. Wiyda conducted an inspection of the prior

facility in May of 2010. Ms. Boynes was present during that

inspection.

24. The licenses held by Mr. Sipek and Ms. Boynes were to

possess the animals for sale or exhibition. Neither activity

was occurring at the prior facility.

25. A USDA exhibitor's license was required for the

facility. Neither Mr. Sipek nor Ms. Boynes had the required

USDA license.

26. Numerous caging and fencing deficiencies were

detected. The deficiencies observed during the 2010 ins pection

were similar to the deficiencies observed in the previous three

inspections. Rust was observed on many surfaces of the cages

and fencing. Required roofing was non - existent. Structures

were placed next to fencing and vegetation overgrowth was

pre sent on the fencing. Structurally unsound enclosures,

including cages, were discovered. Improper strength wire was

used to hold cages together. The condition of the facility was

poor.

27. The caging and fencing deficiencies constituted a

potential dang er to the animals and to the public.

28. On or about August 24, 2010, Mrs. Boynes and Mr. Sipek

applied for the requisite USDA exhibitor's license.

29. Megan Adams, an Animal Care Inspector employed by the

USDA, inspected the prior facility on August 1 0, 2010. Her

observations and findings were similar to those of the FWC

investigators. Ms. Adams observed unsanitary conditions and

caging and fencing deficiencies.

30. Ms. Adams also noted that all three of the animals at

the facility had been declawed . The USDA has prohibited

declawing of big cats since before 2006 and the American

Veterinary Medical Association condemns the practice. By letter

dated September 16, 2010, the USDA denied the application

submitted by Ms. Boynes and Mr. Sipek.

31. FWC d oes not have a rule that prohibits the declawing

of big cats. Mr. Sipek had had Oko and Bo declawed before Ms.

Boynes became involved with the prior facility. In 2008, Lepa

arrived at the prior facility. Lepa was considered to be Ms.

Boynes's animal.

32 . When Inv. Wiyda inspected the prior facility in 2008,

she told Ms. Boynes not to declaw Lepa, and gave her a copy of

the USDA policy against declawing big cats. Ms. Boynes

subsequently had Lepa declawed by a veterinarian. At the formal

hearing, Ms. Bo ynes testified , credibly, that she would not

declaw any other big cats should FWC grant the subject

application.

33. Inv. Garzaniti conducted an inspection of the prior

facility in August 2011. Ms. Boynes was present during that

inspection. Mr. Sipek wa s not licensed at the time of the

inspection. Ms. Boynes's license was active at the time of the

inspection.

34. Numerous caging and fencing deficiencies were

detected. There were gaps in the caging, which compromised the

integrity of the enclosures. Caging and fencing was mended

together and piecemealed with bailing wire of less gauge than

required. Rust was observed on surfaces of cages. One area of

a cage had several pieces of rebar extending down from the

ceiling of the cage with no brace on the bottom to support the

rebar. One of the pieces of rebar broke off when light pressure

was applied.

35. Vegetative overgrowth was present on perimeter

fencing, which negatively impacted the integrity of the fencing.

The perimeter fencing was structurall y unsound.

36. The caging and fencing deficiencies constituted a

potential danger to the animals and to the public.

37. Ms. Boynes possessed no USDA license as required.

38. There was no evidence that the animals were being

possessed for any purpose oth er than as pets.

39. Invs. Wiyda and Garzaniti conducted an inspection of

the prior facility on February 27, 2012. Ms. Boynes was present

during the inspection.

40. Numerous caging and fencing deficiencies continued to

exist. The cages and the perimete r fencing were not

structurally sound. Structures were placed too close to the

perimeter fencing. Vegetative overgrowth was observed on the

perimeter fencing.

41. Sanitation violations were also observed. Standing

water was discovered in cages. Proper drainage for surface

water runoff was not provided. Standing water is unsanitary and

can contain bacteria and feces, which can make an animal sick.

There were multiple piles of old feces throughout the enclosure.

Fecal waste is required to be removed d aily because it is

unsanitary and contains bacteria that can make an animal sick.

Unclean water dishes with yellow and brown slime were

discovered.

42. The caging and fencing deficiencies constituted a

potential danger to the animals and to the public.

4 3. The unsanitary conditions constituted a potential

danger to the animals.

44. Ms. Boynes did not have the required USDA license.

45. There was no evidence that the animals were being

possessed for any purpose other than as pets.

46. On February 27, 2012, FWC arrested Mr. Sipek and

removed the animals from the prior facility.

47. Ms. Boynes was emailed and sent a copy of the report

that was generated by the investigators.

48. As to each FWC inspection, Ms. Boynes received verbal

warnings as to the violations during and following each

inspection, but she was not issued a written citation by FWC or

the USDA for any of the deficiencies set forth above.

49. As a licensee, Ms. Boynes was required to assure that

the caging complied with FWC's rules setti ng caging, fencing,

and sanitation standards. As alleged in FWC's denial letter,

Ms. Boynes violated those rules. 3 /

50. On July 9, 2012, Ms. Boynes became solely responsible

for the operations and maintenance of the facility.

51. Since that date, Ms. Bo ynes has built three new pens

and new perimeter fence. Inv. Garzaniti inspected the re - built

facility on July 9, 2012. The re - built facility met all

applicable standards, and Inv. Garzaniti recommended that the

subject application be granted and the lice nse issued. 4 /

52. FWC's denial letter stated as a ground for denying the

subject application the alleged fact that Paul Fisher had been

bitten by Oko (the leopard) at the prior facility on

December 30, 2010. While FWC received a report of that

incide nt, there was insufficient proof to establish that the

incident occurred.

53. FWC's denial letter also states as a ground for

denying the application alleged deficiencies in the diet

provided the animals at the prior facility . There was

insufficient evid ence to establish that the diet provided for

the animals was insufficient.

CONCLUSIONS OF LAW

54 . DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to sections 120.569 and

120.57(1).

55 . This is a de novo procee ding designed to formulate

final agency action. See Hamilton Cnty Bd. of Cnty Comm'rs v.

Dep't. Envtl. Reg. , 587 So. 2d 1378 (Fla. 1st DCA 1991) and

section 120.57(1)(k), Florida Statutes.

56 . As the applicant, Petitioner has the burden of proving

her en titlement to the license she seeks by a preponderance of

the evidence. See Dep't of Banking and Fin. v. Osborne Stern ,

670 So. 2d. 932 (Fla. 1996) and Dep't of Transp. v. J. W. C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

57 . A "preponderance" of th e evidence means the greater

weight of the evidence. See Fireman's Fund Indem. Co. v. Perry ,

5 So. 2d 862 (Fla. 1942).

58. In its PRO, FWC relies on rule 68A - 5.004 as its

authorization to grant or deny the subject application . That

rule has been repeale d effective M arch 24, 2013.

59. Notwithstanding the repeal of that rule, FCW clearly

has the authority to grant or deny the subject application for

licensure. Art. IV §9 Fla. Const. provides that FCW "shall

exercise the regulatory and executive powers of the state with

respect to wild animal life. " Section 379.1025 provides as

follows:

The Fish and Wildlife Conservation

Commission may exercise the powers, duties,

and authority granted by s. 9, Art. IV of

the Constitution of Florida, and as

otherwise a uthorized by the Legislature by

the adoption of rules, regulations, and

orders in accordance with chapter 120.

60 . Pursuant to rule 68A - 6.002, leopards and tigers are

Class I wildlife. Section 379.3761 requires a FWC permit for

the exhibition or sale of Class I wildlife, as follows:

(1) In order to provide humane treatment

and sanitary surroundings for wild animals

kept in captivity, no person, party, firm,

association, or corporation shall have, or

be in possession of, in captivity for the

purpose of public display with or without

charge or for public sale any wildlife,

specifically . . . mammals . . . whether

native to Florida or not, without having

first secured a permit from the commission

authorizing such person, party, firm,

association, or corpor ation to have in its

possession in captivity the species and

number of wildlife specified within such

permit . . .

61 . Rule 68A - 6.0023 provides, in relevant part, as

follows:

(1) No person shall maintain captive

wildlife in any unsafe or unsanitary

condi tion, or in a manner which results in

threats to the public safety, or the

maltreatment or neglect of such wildlife.

(2) Caging Requirements:

(a) All wildlife possessed in captivity

shall, except when supervised and controlled

in accordance with subsecti on (3) hereof, be

maintained in cages or enclosures

constructed and maintained in compliance

with the provisions of Rules 68A - 6.003, 68A -

6.004 and 68A - 6.007, F.A.C.

(b) Cages or enclosures housing captive

wildlife shall be sufficiently strong to

prevent e scape and to protect the caged

animal from injury, and shall be equipped

with structural safety barriers to prevent

any physical contact with the caged animal

by the public, except for contacts as

authorized under subsection (3) of this

rule . . .

62 . T he prior facility repeatedly failed to comply with

rule 68A - 6.0023(1) and (2) as alleged by FWC in its denial

letter .

63 . Rule 68A - 6.003 provides for facility and structural

caging requirements for Class I, II, and III wildlife. The

prior facility repeat edly failed to meet those standards

p ertaining to caging and fencing as alleged by FWC in its denial

letter.

64 . The prior facility also failed to meet the sanitation

requirements found in rule 68A - 6.0023(5)(b) and (d) pertaining,

respectively, to the pro vision of fresh drinking water and the

removal of feces from cages as alleged by FWC in its denial

letter .

65 . Rule 68A - 6.0022 required Ms. Boynes to obtain and

maintain a valid USDA license for the prior facility. Mr. Sipek

and Ms. Boynes operated the p rior facility for years without the

required USDA license. When they finally applied for a USDA

license, the application was denied by USDA.

66 . Section 379.3762(2)(a) provides that Class I wildlife

shall not be possessed as a personal pet of the license e.

Pursuant to rule 68A - 6.0024(1), the prior facility was required

to "demonstrate consistent and sustained commercial activity in

the form of exhibition or sale of such authorized wildlife."

There was no evidence that the ani mals at the facility were

ma intained at the prior facility as anything other than pets.

67 . Ms. Boynes had her young tiger declawed despite being

advised not to do so by Inv. Wiyda and despite knowing that the

USDA opposed declawing of big cats. FCW correctly argues that

declawing is considered inhumane by the USDA and the AVMA. In

declining to find that declawing the young tiger i s a basis for

denial of the subject appication , the undersigned has considered

that FCW does not prohibit declawing, a licensed veterinarian

declawed the tiger, and Ms. Boynes has represented that she will

have no other animals declawed.

68. FCW established that Ms. Boynes's repeated

representations in her prior FWC applications t hat the facility

was for "permanent exhibition" were material misrepresentat ions

of fact. FCW can consider those misrepresentations when

deciding whether to grant or deny the subject application.

69. The violations set forth in this Recommended Order are

grounds to deny the application for licensure. It is within the

sound disc retion of FCW to grant or deny the subject

application.

70. The undersigned is persuaded that Ms. Boynes is

motivated by her affection for the animals. She has taken the

extraordinary steps of forming a non - profit corporation so the

facility can be manag ed as a sanctuary , and s he has caused the

facility to be re - built, with new cages and fencing. She has

also taken over the management of the facility from Mr. Sipek.

71. Notwithstanding those considerations, the undersigned

concludes that the subject app lication should be denied. In

reaching the conclusion that the subject application should be

denied, the undersigned is persuaded that the long - standing

nature of the violations, the seriousness of the violations, the

fact that the prior facility was oper ated without a USDA

license, and that there was no evidence of commercial activity

at the prior facility are factors that compel the recommendation

that the subject application be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclu sions

of Law, it is hereby RECOMMENDED that the Florida Fish and

Wildlife Conservation Commission enter a Final Order adopting

the findings of fact and conclusions of law set forth in this

Recommended Order. It is further Recommended that the Final

Order deny the subject application for licensure filed by

Melanie Boynes and Tarzan's Big Cat Sanctuary, Inc.

DONE AND ENTERED this 29 th day of March , 201 3 , in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Admin istrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March , 201 3 .

EN DNOTES

1 / Unless otherwise note, references to licenses in this

Recommended Order are to licenses issued by FWC for the

possession, sale, and display of Class I and/or Class II

wildlife at the subject facility.

2 / That denial is not being challenged in this proceeding.

3 / In reaching that finding, the undersigned has not overlooked

Ms. Boynes's credible testimony that her role at the prior

facility had been subordinate to Mr. Sipek's role, up to the

time he was arrested. The undersigned has also considered the

evidence that Mr. Sipek is a strong - willed individual who can be

difficult to deal with. Notwithstanding that relationship and

Mr. Sipek's personality, Ms Boynes had, since the issuance of

her FWC license in 2006 , the obligation to adhere to relevant

statutes and rules regulating the possession of the animals at

the prior facility . If she could not convince Mr. Sipek to

comply with the law, she should have relinquished her license

and let Mr. Sipek suffer the consequences of these apparent and

continuing sanitation, caging, and fencing deficiencies.

4 / FWC correctly points out that Inv. Garzaniti testified that

his recommendation that the license be issued was only a

statement that the appropriate cagi ng was in place for the cats.

He also testified that when he made the recommendation, he did

not take into consideration the history of the facility, Ms.

Boynes's history as a licensee, the well - being of the animals

during her time with them, her lack of a USDA license, and the

misrepresentation of her intended use of the facility on her

applications to FWC.

COPIES FURNISHED :

Robert A. Melchiorre, Esquire

Perlet and Shiner

Suite 701

515 North Flagler Drive

West Palm Beach, Florida 33401

Ryan Smith Osb orne, Esquire

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Eugene Nichols "Nick" Wiley, II

Executive Director

Florida Fish and Wildlife

Conservation Commissi on

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Harold G. "Bud" Vielhauer, General Counsel

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 323 99 - 1600

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Fi nal Order in this case.