15-003310 Jerry Holly vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Monday, February 1, 2016.

Summary: FWC has not proven by clear and convincing evidence that revocation of Petitioner's captive wildlife licenses is warranted. However, given numerous violations spanning several years, suspension of licenses is appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY HOLLY,

Petitioner,

vs. Case No. 15 - 3310

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was hea rd, pursuant to notice, on October 27

through 29, 2015, in Tampa, Florida, before W. David Watkins, an

Administrative Law Judge (ALJ) of the Florida Division of

Administrative Hearings.

APPEARANCES

For Petitioner: William John Cook, Esquire

Barker & Cook, P.A.

Suite 790

501 East Kennedy B oulevard

Tampa, Florida 33602

For Respondent: Ryan S mith Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUE

Whether Respondent established that this case meets the

criteria for the denial and revocation of PetitionerÓs Class I,

Class II, and Class III captive wildlife permits pursuant to

Florida Administrative Code R ule 68 - 1.01 0 and chapter 379,

Florida Statutes (2015) . 1/

PRELIMINARY STATEMENT

Petitioner has been licensed by the Florida Fish and

Wildlife Conservation Commission (FWC), and its predecessor

agencies, to possess captive wildlife for the purposes of

exhibition or sal e since 2002. On March 10, 2015, FWC issued

Petitioner a Notice of Intent to Deny/Revoke (Notice), notifying

Petitioner of its intent to deny his applications for licenses

to possess Class I, Class II , and Class III wildlife for the

purpose of exhibition and public sale. The same Notice advised

Petitioner of FWCÓs intent to revoke his Game Farm License,

citing a history of violations of FWC rules and statutes at the

facility.

On June 5, 2015, Petitioner timely submitted a Petition for

Administrative Hear ing (ÐPetitionÑ) challenging FWCÓs intended

action. On June 9, 2015, FWC referred the matter to the

Division of Administrative Hearings (ÐDOAHÑ) Ðto conduct all

necessary proceedings required by law and to submit a

recommended order to the Commission.Ñ

O n June 29, 2015 , the undersigned entered an O rder setting

the matter for final hearing on August 11 through 13, 2015.

However, on July 14, 2015 , the parties filed a joint motion for

continuance, which the undersigned granted. Thereafter , the

matter was s et for final hearing to commence on October 27,

2015. On October 26, 2015, the parties filed their Joint

Prehearing Stipulation.

As noticed, the hearing was held on October 27 through 29,

2015 in Tampa, Florida. FWC Investigators Richard Brown and

Steve McDaniel testified for FWC. Investigator Brown was

accepted as an expert in the inspection of captive wildlife

facilities, captive wildlife matters, and FWC rules and

regulations relating to captive wildlife. FWC Ós Exhibits A, C,

D, E, G through Z, AA, a nd BB were received in evidence.

For his part, Petitioner called as witnesses Janice Jones,

Polly Rivers, Joanie Swanson , and Dr. Thomas Callahan.

Petitioner also testified on his own behalf. PetitionerÓs

Exhibits 1 through 12, 14, 25, 30 through 39, and 41 were

received in evidence.

In addition to the parties individual exhibits, Joint

Exhibits 1 and 4 were received in evidence. The two - volume

Transcript of the final hearing was filed at DOAH on

November 24, 2015.

At the conclusion of the hearing, the p arties requested

that they be given until December 21, 2015 , to file their

proposed recommended orders. That request was granted.

However, the parties subsequently filed a request to extend the

deadline for filing proposed reco mmended orders, and on

Dece mber 28, 2015 , an O rder was entered granting an extension

until January 6, 2016. Both parties timely filed Proposed

Recommended Orders which have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidenc e adduced at hearing, and the record as

a whole, the following F indings of F act are made:

1 . This action arises from FWCÓS decision to revoke and

deny Petitioner, Jerry HollyÓs , licenses to possess Class I, II,

and III wildlife for exhibition and sale an d his game farm

license application.

2 . Through his company, Shilo Zoo and Park, Petitioner

owns and operates a facility on 817 acres near Micanopy,

Florida , where he raises animals for sale. Petitioner has held

his licenses since 2002.

3 . FWC first i nspected PetitionerÓs animal operations on

June 12, 2002. Investigator , Rick Brown , conducted the

inspection and found certain caging and enclosure deficiencies.

By the next inspection, conducted on October 2, 2002, Brown

reported that Petitioner had mad e the necessary corrections and

recommended permit approval.

4 . By April 7, 2004, PetitionerÓs inventory of animals had

increased significantly, and on that day, Investigator , Janice

Jones, accompanied by Brown, reported observing additional

caging, enclo sure, and other deficiencies, including:

• t he zebra fencing was four feet high

instead of the required six foot height;

• t he lemur caging was constructed of 18 -

gauge mater ial rather than the required

14 - gauge material;

• the bongo enclosure was six feet high

rather than the required eight foot

height;

• t he prevost squirrel caging was

constructed of 16 - gauge material rather

than the required 14 - gauge material;

• n o stimulation or manipulation devices

were provided to the lemurs; and

• w hen asked, Petitioner was unable to

produce business transaction records upon

request.

5 . Regarding the April 7, 2004 , inspection, Jones

testified that Petitioner Ðhad a couple issues at the time, but

overall the facility was very well.Ñ

6 . By the time of the next inspection , on June 14, 2004,

Petitioner had corrected all of the deficiencies noted in the

April 7, 2004 , inspection.

7 . On January 28, 2005, Investigator Jones reported that

PetitionerÓs enclosures exceeded caging requirements, and she

recommended that Petitioner be issued a Class I license for

Gibbons monkeys. At the time, the rules required a five - foot

fence and Petitioner had an eig ht - foot perimeter fence

encircling his property.

8 . Investigator Jones reported on January 14, 2007 ;

February 12, 2007 ; June 21, 2007 ; June 22, 2007 ; October 22,

2007 ; December 19, 2008 ; and January 19, 2010 , that PetitionerÓs

enclosures met or exceeded minimum requirements. Petitioner

also was approved for rhinoceros and bears, and Jones reported

that PetitionerÓs animals appeare d healthy. Although Jones

testified that Ðmore likely than not,Ñ Petitioner could not

document all of the coming and going of hi s animals, her

June 2007 and December 2008 reports state that PetitionerÓs

acquisition paperwork was in order.

9 . Jones testi fied that she believed that she inspected

PetitionerÓs facility at least one more time after January 2010,

and she could not recall any discrepancies.

10 . While Jones was PetitionerÓs inspector, the FWC

sometimes asked Petitioner to hold animals that had been

abandoned or were under quarantine. In one instance, the agency

issued Petitioner a special permit to keep a chimpanzee.

11 . On one occasion, Petitioner contacted Jones about an

alligator that was on his property and asked for her assistance

in rem oving it.

12 . PetitionerÓs former USDA I nspector, Dr. Thomas

Callahan, testified that during his tenure, PetitionerÓs animals

and his facility looked very good. He also inspected

PetitionerÓs paperwork and could not recall ever having a

problem. Dr. Ca llahan retired in 2006.

13 . On April 21, 2009, a patas monkey escaped from

PetitionerÓs facility. Jones believed that the monkey escaped

during a transfer and not due to a problem with caging. She had

inspected the caging and found that it was acceptab le,

Ðeverything looked good.Ñ She also found that Petitioner was

forthcoming about the monkey and did not try to hide the escape.

Jones testified that an escape in and of itself is a violation

of FWC rules.

14 . Petitioner hired Kim Greely in 2012 to ta ke care of

his animals and the paperwork. In addition to Ms. Greely,

Petitioner employed other individuals to care for the animals on

a daily basis. If Ms. Greely was not available on a given day,

another employee would cover for her.

15 . The first FWC inspection that took place after Greely

was hired occurred on October 17, 2012. In that inspection,

Investigator Brown noted several caging, maintenance , and

sanitation problems, including:

• the spider monkey cage door was unlocked;

• caging U - nails were p ulling out of the

two - by - six beams, creating a gap between

the beam and the containment wire;

• dens for the animals were not accessible

to the animals;

• excessive rust was present on much of the

facility caging;

• a broken padlock on the Patas monkey cage

w as discovered. Another padlock was

located and the cage was locked during the

inspection;

• the wooden nest box in the Patas monkey

cage needed to be secured as it was

wobbling and posed a risk of injury to the

animal;

• most of the monkey cages had no

mani pulation devices or stimulation

devices;

• some of the animals had no elevated

shelving or had broken elevated shelving.

This is required for some species, as they

prefer to sit on an elevated perch rather

than on the ground;

• there was a torn metal conduit covering

the guillotine cable to the gibbon

lockdown area, which posed a risk of

injury to the animal;

• erosion was occurring under the exterior

door of the gibbon cage and beneath the

Ringtail lemur cage;

• one of the corners of the foundation

supporting two cages was unsecured and not

stable. The cages were teetering on a

couple of pieces of wood and a cinder

block;

• rotted and/or moldy lumber and other

materials were used for and present in the

caging;

• there were unsecured seams in the caging

materials , causing gaps in the caging,

which poses a risk of escape;

• in many of the cages, the material used to

construct the cage was not of sufficient

strength;

• three of four dens had rat feces, and in

one den, three live rats were observed;

• excessive feces we re present in a lemur

cage;

• standing water was present in the Tamarin

cage.

16 . According to Brown, the excessive number of

deficiencies indicated that Petitioner was unable or unwilling

to comply with the rules. Brown issued a criminal citation to

Pet itioner as a result of the October 17, 2012 , inspection.

17 . On April 25, 2013, Inv estigators Rick Brown and

Wayne King conducted a follow - up inspection. Brown noted in his

inspection report that most of the violations were corrected,

but some also remai ned uncorrected. The report also reflects

that the majority of PetitionerÓs enclosures were in compliance

with FWC requirements.

18 . Consistent with BrownÓs report documenting

corrections, Brown sent an e - mail on May 21, 2013 , to Mindy

Wagner, FWC s enior c lerk, stating, ÐI was out there a couple

weeks ago and Mr. Holly has made some serious progress to

correct those identified issues. As for being on the up and up,

seems to be so far.Ñ

19 . On May 29, 2014 , Investigator Brown and FWC Officer ,

John Wilke , conducted a follow - up inspection. Brown noted in

his inspection report that most of the violations noted during

the April 25, 2013 , inspection had been corrected. However,

several additional rule violations were documented, including:

• two - by - six boards used to close a gap

between two sealing panels in a cage were

rotting and were pulling apart;

• an elevated den needed to be attached to

the caging and actually elevated rather

than sitting on the floor of the cage as

was discovered;

• rust on a horizontal b eam on a cage needed

to be treated;

• the broken weld in a ceiling panel needed

to be repaired;

• manipulation and stimulation devices still

needed to be provided in some of the

cages;

• dens needed to be provided in some cages.

Dens are required to provide t he animal a

place to retreat to and to provide

protection from the elements;

• some of the cages did not meet the

required dimensional requirements or were

too small;

• no safety entrance for the Capuchin monkey

cage was present;

• Petitioner was housing a ma caque in a cage

without a safety entrance. This meant the

animals could not be safely removed from

the cage to allow for cleaning;

• the floor of the macaque cage was covered

with feces, likely as a result of not

having a proper safety entrance;

• some of t he caging materials did not meet

the strength requirements;

• a portion of the zebra fencing had been

damaged, bringing the height to five feet,

two inches, rather than the required six

feet;

• the zebra fencing wire was rusting and

sections were becoming un attached,

creating an inconsistent containment

barrier;

• the giraffe paddock had been damaged and

was in need of repair.

20 . Brown acknowledged that several of the caging

discrepancies noted in the May 29, 2014 , inspection involved

violations of a few in ches. He testified that if he tacitly

approved cages off by a few inches it would be a Ðslippery

slopeÑ and he would face questions from other licensees about

the standards. Brown likened the concept to a highway patrol

officer who does not give a ticket to a driver he pulled over

for going 80 miles per hour. It creates tacit approval for

circumstances that are n o t authorized.

21 . Investigator , Steve McDaniel , conducted the next

inspection on November 24, 2014. Investigator Brown was not

with him. It was the first time McDaniel had been to

PetitionerÓs facility, and his inspection report was lengthy.

McDaniel found several cages with rust, some excessive, some

just surface rust, and some of the cages were not sanitary, with

old fecal waste matter. The re were also cages that were too

small and some unlocked cages were observed.

22 . On cross - examination, McDaniel admitted that several

of the pictures in his report in fact depicted surface rust, not

excessive rust. McDaniel also clarified that what he w as

describing as unlocked cages actually were open doors to sheds

that contained cages. The cages within the sheds were locked.

McDaniel acknowledged that had he seen an unlocked cage within a

shed he would have noted it on the report.

23 . McDaniel furth er conceded that most of PetitionerÓs

cages were actually larger than what the agency required. The

only ones that had issues had some lemurs and a Celebes ape.

The lemur cages were off by five, six , or eight inches.

24 . Investigator McDaniel returned t o PetitionerÓs

facility on December 11, 2014. He was with Investigator Brown

to Ðcheck up on some thingsÑ and because of a tip of some

unauthorized animals being kept there. The report states that

McDaniel and Brown found two animals with the characteris tics of

bobcats. In addition, the report noted that animals were in

substandard caging due to the cold weather outside, and only on

a temporary basis. McDaniel also noted that there were new

shelters being built for the cages in the lower area. The lemu r

cages and capuchin cage had been modifi ed with four - layer

plywood, one - half inch thick, in order to increase the height of

the cages to exceed the required height. However, the length

and width of the cages were still too small, and the report

noted tha t Petitioner would need to request a deviation.

Following the December 11, 2014 , inspection, McDaniel issued a

criminal citation, which was still with the state attorneyÓs

office at the time of the hearing.

25 . McDanielÓs report from his November 24, 2014 , and

December 11, 2014 , inspections do not indicate whether any of

the deficiencies from the May 29, 2014 , inspection had been

corrected. Comparing the two reports, however, it is apparent

that many of the violations noted in the earlier report had been

corrected as of December 11, 2014. And as noted above, McDaniel

reported that on December 11, 2014, Petitioner was in the

process of correcting issues identified on November 24, 2014.

26 . On January 28, 2015, Investigators Brown and McDaniel

conducted an unannounced inspection and took numerous

photographs of their observations. They were there because of a

tip that some animals were being kept on the property

illegally. 2/ Several violations were noted during the

inspection, including:

• the zebra perimet er fencing had not been

corrected and was not of the required

height;

• sanitation and caging issues were still

present at the facility;

• the Celebes monkey caging material met the

strength requirement, but did not meet any

of the other requirements;

• the Patas monkey cage and the Celebes apes

cages still lacked a safety entrance;

• some of the cages still did not meet

minimum size requirements.

27 . Also during this inspection , it was discovered that an

alligator was being maintained on the second floor of the barn.

Petitioner was not licensed to possess an alligator, and the

animal had been placed in a cage that was too small. Petitioner

was in Sri Lanka at the time the alligator was found, and it is

unclear from this record who put the alligator in the cage. The

alligator was unharmed, and the FWC officers released it to the

wild.

28 . Investigator McDaniel returned on February 12, 2015 ,

to deliver a copy of the Notice of Intent to Deny/Revoke to

Petitioner, and to check on the Celebes ape and Patas mon key.

On that visit, he noted several prairie dogs in an 18 - square -

foot cage. According to McDaniel, most of the animals had

extreme hair loss, which he surmised could be a sign of disease

or stress due to the small cage. McDaniel also found that the

Cel ebes ape had not been moved to a larger cage, although the

patas monkey had been moved.

29 . Petitioner testified that he had about 20 prairie dogs

in an 18 - square - foot cage. The animals were being temporarily

kept in the cage, as Patty Rivers (the owner of a company that

provides animals for motion pictures) was coming over to see

them. The animals were missing hair, which Petitioner testified

could simply have been due to annual shedding.

30 . Investigator Brown assisted in drafting a denial

letter to Petitioner concerning PetitionerÓs prospective

employee, Cindy Bardin. In one of his comments regarding the

draft letter, Brown recommended that the agency remove a

statement asserting that PetitionerÓs violations were putting

the public at risk.

31 . Ov er PetitionerÓs objection, evidence of an inspection

conducted on June 12, 2015, which was after issuance of the

Notice of Intent to Deny/Revoke on March 10, 2015, was received

in evidence. The investigative report notes that the majority

of the deficienc ies noted in earlier inspections had been

corrected, however there were some minor ongoing and new

violations observed. Specifically, some exterior cage doors

were found unlocked (although the interior doors were locked),

some cages were still without man ipulation devices, and

sanitation issues still remained in some of the cages.

32 . Joanie Swanson testified on behalf of Petitioner. She

holds a Class III license and owns capuchin monkeys. In 2013,

when her husband was getting ready to retire, they obta ined a

list of Class I and Class III licensees from FWC and looked at

about ten properties in central Florida to house their animals,

including PetitionerÓs.

3 3 . According to Ms. Swanson, PetitionerÓs facility was

far superior to the others they visited. The Swansons visited

PetitionerÓs facility about a half dozen times before they moved

any animals, and every time it was clean and beautiful.

PetitionerÓs facility satisfied all of the Swansons Ó

requirements. It was a safe environment, it was gated, and the

caretakers were very good. It was clean, safe, secure,

licensed, and the cages were bigger than she expected. The

facility had automatic water. Ms. Swanson testified that she

was amazed at what some of the other facilities she visited did

not have.

3 4 . Ms. SwansonÓs testimony regarding the quality of

PetitionerÓs facility in 2013 is credited.

3 5 . Ms. Swanson also met Kim Greely, PetitionerÓs

employee. When she first met Greely, Greely told her that

Petitioner was very protective of his animals. Greely said that

if there ever was a problem with an animal, Petitioner would

make sure that it was taken to the vet. He would drop

everything to care for his animals.

3 6 . The evidence established that it was not uncommon for

the FWC inspectors to reque st business records documenting the

sale and acquisition of animals, and to be told that the records

were not available. And occasionally, when records were

provided to the inspectors, they were incomplete.

3 7 . It is important that animals are sold to a licensed

person to ensure that the person taking it has the required

experience and the required caging to properly care for the

animal. Business transaction records document if this occurs

during a sale, purchase, or transfer. Moreover, records of

sale, purchase, or transfer can be important to track disease

transmissions, particularly in birds. Records of sale,

purchase, or transfer are also important to prevent the illegal

trade of wildlife.

3 8 . Petitioner buys most of his animals in sales in

Tenness ee, Missouri , and Ohio. At the sales, Petitioner gives

the seller an acquisition form. The seller fills out his part

and then PetitionerÓs employee, Kim Greely , would complete the

form. When Petitioner received a bill listing the animals he

bought, he w ould give the records to Greely.

39 . Petitioner entrusted Greely with keeping the records

of the transactions. She received all of the sale bills and was

supposed to keep the records. Petitioner was under the mistaken

belief Greely was providing the re cords to the inspectors.

Greely apparently told Investigators Brown and McDaniel that she

only received records that Petitioner provided to her. In any

event, Petitioner acknowledged at hearing that he was ultimately

responsible for keeping records of tra nsactions and providing

them to inspectors when requested. The evidence established

that on several occasions Petitioner failed in this

responsibility.

4 0 . Petitioner admitted to pleading guilty in 2004 to

misdemeanor charges for improper caging, and adj udication was

withheld. More recently, Petitioner pled guilty in 2012 to

failure to maintain cages in compliance with regulations, and

adjudication was withheld.

4 1 . Petitioner acknowledged that there have been three

escapes from his facility in the past 15 years. Hornbill birds

escaped in 2004, and a Patas monkey escaped in 2009. No

information was provided regarding the third escape. Likewise ,

it is unclear as to how the animals escaped, how long they were

fugitives, or whether the escapes were attri butable to deficient

caging.

4 2 . No evidence was presented that any of the escaped

animals were injured as a result of their escape, or that any

human beings were adversely affected in any way.

4 3 . Petitioner has been licensed by FWC since 2002 and it

i s undisputed that his livelihood will be impacted by FWCÓs

proposed action. In PetitionerÓs words, the financial impact

would be ÐdevastatingÑ, possibly leading to bankruptcy.

However , the extent of the impact was not quantified as

Petitioner did not pro vide records of sales or profits from

sales, or give an indication of his annual income earned from

the sale of wildlife.

4 4 . At the conclusion of PetitionerÓs testimony, the

undersigned questioned Petitioner about the cause of inspection

deficiencies at this facility in recent years:

Ð HEARING OFFICER: You were here when

Inspector Brown testified that in his

opinion he doesnÓt know whether you were

unable or unwilling to comply with

applicable FWC regulations.

Do you agree with the notion that you are

un willing or unable to comply with those

regulations?

THE WITNESS: I had some, again, health

issues early on. IÓm past that now, and I

think that I can continue on. Again, I was

more of a part - time guy before. Now, again,

I think I have to be full time until I get

all this turned around.

HEARING OFFICER: How do you plan to get it

all turned around?

THE WITNESS: Well, I will be at that farm

every day making sure everything is done at

this point. I have an excellent girl that Î

again, she also has a li cense, s o she is

more than capable of taking care of

everything, but I will be there looking over

her shoulder and thatÓs how I explained it

to her when I hired her. Ñ

CONCLUSIONS OF LAW

4 5 . DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes.

4 6 . FWC is the agency with exclusive jurisdiction to

regulate all wild animal life in Florida. Art. IV, § 9, Fla.

Const. All wild animal life includes captive wildlife.

4 7 . In order to provide humane treatment and sanitary

surroundings for wild animals kept in captivity, all individuals

that have or possesses captive wildlife for the purpose of

public display or public sale must have a license from FWC.

§ 379.3761(1), Fla . Stat.

4 8 . This case involves FWCÓs revocation and failure to

renew PetitionerÓs licenses and affects PetitionerÓs livelihood.

As such, FWC has the burden of proving its allegations with

clear and convincing evidence. See Ferris v. Turlington ,

510 So. 2 d 292, 295 (Fla. 1987) (establishing clear and

convincing evidence standard for license revocation

proceedings); St ate DepÓt of Banking & Fin . v. Evans , 540 So. 2d

884, 886 (Fla. 1st DCA 1989) (Ðrefusal to renew a license to a

person who has once demonstra ted that he possesses the statutory

prerequisites to licensure cannot be used as a substitute for a

license revocation proceedingÑ).

49 . ÐClear and convincing evidenceÑ means that the

evidence must be found to be credible , the facts to which the

witnesse s testify must be distinctly remembered , the testimony

must be precise and explicit , and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier of fact a

firm beli ef or conviction, without hesitancy, as to the truth of

the allegations sought to be established. Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983).

5 0 . FWCÓs specific allegations are contained in FWCÓs

Notice of Intent to Deny/Revoke, dated M arch 10, 2015. The

Notice details several inspections from April 7, 2004 through

February 14, 2015, during which time numerous violations were

documented. This tribunal may consider only the allegations in

the Notice, as predicating disciplinary action a gainst a

licensee on conduct never alleged in an administrative complaint

or some comparable pleading violates the Administrative

Procedure Act. Cottrill v. Dep't of Ins. , 685 So. 2d 1371, 1372

(Fla. 1st DCA 1996). Similarly, due process requires that on ly

the allegations in an administrative complaint may be considered

in imposing disciplinary sanctions. Matters not charged in an

administrative action cannot be considered as violations. See

Chrysler v. Dep't of Prof'l Reg . , 627 So. 2d 31, 34 (Fla. 1st

DCA 1993); Klein v. DepÓt of Bus. and ProfÓl Reg . , 625 So. 2d

1237 (Fla. 2d DCA 1993). Accordingly, in considering the

recommendation set forth herein , the undersigned has disregarded

alleged violations that post - date the Notice. However, even had

the un dersigned considered such documents, his recommendation

would not have changed. 3/

5 1 . Florida Administrative Code R ule 68 - 1.010(5) requires

FWC to consider the following factors when determining whether

to suspend, deny , or revoke a license:

(a) The seve rity of the conduct;

(b) The danger to the public created or

occasioned by the conduct;

(c) The existence of prior violations of

Chapter 379, F.S., or the rules of the

Commission;

(d) The length of time a licensee or

permittee has been licensed or pe rmitted;

(e) The effect of denial, suspension,

revocation or non - renewal upon the

applicant, licensee, or permitteeÓs

existing livelihood;

(f) Attempts by the applicant, licensee or

permittee to correct or prevent violations,

or the refusal or failure of the applicant,

licensee or permittee to take reasonable

measures to correct or prevent violations;

(g) Related violations by an applicant,

licensee or permittee in another

jurisdiction;

(h) The deterrent effect of denial,

suspension, revocation or n on - renewal;

(i) Any other mitigating or aggravating

factors that reasonably relate to public

safety and welfare or the management and

protection of natural resources for which

the Commission is responsible.

Severity of the Conduct, and Prior Violations

5 2 . In considering the severity of the allegations, the

undersigned notes that Investigator Brown testified concerning

the agencyÓs priorities. According to Brown, the agencyÓs first

and foremost duty is public safety, which is the reason for the

materi al and strength requirements for caging. The second issue

after public safety is animal welfare. That is why the

enrichment and sanitation rules exist. The third issue is

documentation. The agency needs to make sure that wildlife

within the state of Fl orida is moving from a licensed person to

someone who has already demonstrated qualifications (through

licensure) to possess such animals. The fourth category is the

needs of the owner. According to Brown, the rules contemplate

deviations from strict com pliance if the licensee can

demonstrate that they have met the burden of the other

requirements, i.e., public safety and animal welfare.

53 . While the existence of prior violations is a separate

consideration from severity, FWCÓs central argument for its

decision to revoke PetitionerÓs licenses is that Petitioner has

committed the same violations on a consistent basis for over a

decade. For example, FWCÓs prehearing statement avers that the

decision to revoke PetitionerÓs licenses was based on Ðover a

dec ade of site investigations, warnings, notices of non -

compliance, phone calls to the Petitioner, criminal citations,

and a voluminous record of lack of compliance and failure to

provide records of transfer, sale , and pur chase of PetitionerÓs

animals.Ñ (Joi nt Prehearing Statement). Similarly, Brown

testified that PetitionerÓs license s should be revoked because

PetitionerÓs noncompliance has been Ðconsistent and systematic

and ongoing for more than a decade.Ñ In other words, FWC

asserts that cumulative viol ations over more than ten years

warrant revocation even if individual violations do not.

Consequently, the Court will consider the severity and duration

of the violations together. See Fla. Admin. Code R 68 -

1.010(5)(a), (c).

A. Caging Violations

54 . T he first violations referenced in the Notice were

caging violations from April 7, 2004. Petitioner corrected

those violations to the agencyÓs satisfaction by the time of his

next inspection on June 14, 2004. Over the next six years, and

perhaps longer, s ubsequent inspections revealed no caging

violations, and the record reflects that Petitioner exceeded the

applicable requirements and actually partnered with FWC in

handling misplaced or confiscated animals. In addition, the

testimony of both Investigator Jones and former USDA I nspector

Callahan established that PetitionerÓs facility was in

compliance and his animals were in good condition through at

least 2010.

5 5 . FWC did present evidence of violations during

inspections that occurred on October 17, 20 12 ; April 25, 2013 ;

May 29, 2014 ; November 24, 2014 ; December 11, 2014 ; January 28,

2015 ; and February 12, 2015. This time period spans less than

three years, not a decade, with the last four inspections taking

place in less than four months.

5 6 . There w as no credible evidence that PetitionerÓs

animals were unhealthy or suffered as a result of the caging

violations. For example, some of the animals found in smaller

cages were getting ready for shipment or were in temporary

shelters due to cold weather. Respondent failed to show by

clear and convincing evidence that Petitioner committed severe

caging violations over more than a decade.

B. Escaped Animals

5 7 . FWCÓs rules provide that any ÐconditionÑ that results

in an escaped animal is a violation. Fla. Admin. Code R. 68A -

6.0023(4). The Notice references an escaped patas monkey in

2009, and Respondent introduced evidence of an escaped Hornbill

bird. It is unclear how the animals escaped, but FWC failed to

show by clear and convincing evidence that esca pes occurred due

to any caging issues or conditions in violation of the

applicable rule. In addition, given the number of animals in

PetitionerÓs possession, only three escapes in 13 years would

not be considered a severe violation.

C. Unlicensed Possess ion of Animals

5 8 . Petitioner admitted that FWC has not received a

complete record of his sale and transfer of animals. According

to Petitioner, he imprudently entrusted Ms. Greely with the

responsibility for maintaining his records. It is unclear

wheth er the missing records were the result of PetitionerÓs

intent to hide transactions , as FWC argues, or whether

Ms. Greely simply misplaced them or withheld them for reasons

unknown.

59 . It was undisputed that FWC officers found an alligator

on PetitionerÓs premises. Petitioner was not licensed to

possess an alligator, and the animal had been placed in a cage

that was too small. Petitioner was traveling at the time the

alligator was found, and it is unclear who put the alligator in

the cage. The alligator apparently was unharmed, and the FWC

officers released it to the wild. On one prior occasion,

Petitioner had enlisted the FWCÓs assistance in removing an

alligator from his property. Given the circumstances, the

undersigned does not find that Petitioner Ós possession of the

alligator was a severe violation.

6 0 . The November/December 2014 inspection report notes

that Investigator Brown discovered two cats with the

characteristics of bobcats on Petition er Ós property. While

Petitioner was not licensed to possess bobcats, Respondent

failed to credibly establish that the animals in question were,

in fact, bobcats.

6 1 . Respondent failed to present any evidence of a May 3,

2004 , conviction or a September 14, 2010 , incident involving the

sale of two rhesus mac aque monkeys referenced in the Notice, and

therefore these allegations will not support revocation.

D. Recordkeeping

6 2 . It is undisputed that Petitioner did not appear to

have complete records of his animal acquisitions available for

inspection on the d ates in question. Accurate recordkeeping

plays an important role in public safety in that records ensure

that wildlife within the state of Florida is moving from a

licensed person to a person qualified to handle the animals. A

public health issue is als o presented when potentially diseased

animals are sold and their whereabouts cannot be ascertained due

to a lack of documentation. The failure to maintain accurate

records of animal acquisitions, sales, and transfers poses a

serious public health risk.

6 3 . While Petitioner may have delegated to Ms. Greely

responsibility for maintaining sales records, Petitioner is

ultimately responsible for the actions of his employees and for

ensuring compliance with FWCÓs recordkeeping requirements.

Danger to the Public

64 . FWC considers appropriate animal containment as its

chief public safety concern in applying its regulations. Here,

the alleged violations that would fall into the category of

danger to the public primarily involved enclosures in need of

repair, sub standard caging, and unlocked cages. Respondent

failed to show by clear and convincing evidence that the

violations it proved demonstrated a significant danger to the

public.

6 5 . The inspection reports introduced at hearing

demonstrate that there were f ew, if any, cages in such dire need

of repair that there was a substantial risk that an animal might

escape. While it is true that Petitioner used 12 - gauge wire for

some monkey cages instead of the required 11 1/2 - gauge, FWC did

not establish that a sligh tly smaller gauge wire posed a

significant risk of escape . And while some of the monkey cages

were contained within sheds that acted as dens, and agency

inspectors found some of the shed doors were open or unlocked,

there was no evidence that the cages w ithin the sheds were

unlocked. While these were technical violations, Respondent

failed to show that the violations posed a significant risk of

escape or danger to the public.

Length of Time that Petitioner H as B een Licensed

6 6 . Petitioner is an experie nced exotic animal collector

who has been licensed since 2002. Up until October of 2012,

PetitionerÓs record with the FWC and the USDA was good, and

Petitioner enjoyed a constructive and collaborative relationship

with those agencies.

The Effect of Revoca tion on PetitionerÓs Livelihood

6 7 . Petitioner testified that losing his licenses would be

devastating to him financially and could result in him filing

for bankruptcy. Revocation would also adversely affect

PetitionerÓs four or five full - time employees , as well as his

wife, who has a 50 - percent interest in the business. Based on

this unrebutted testimony, the undersigned finds that revocation

would have a significant negative effect on PetitionerÓs

livelihood.

Attempts to Correct or Prevent Violations

68 . One of the agencyÓs central arguments for revocation

is its contention that for a period of time spanning Ðover a

decade , Ñ Petitioner has been cited for numerous uncorrected

violations. (Prehearing Stipulation, RespondentÓs Position

Statement).

6 9 . While some violations were noted in an April 7, 2004 ,

inspection, by the time of the unannounced follow - up inspection

on June 14, 2004, all of the fencing and caging issues brought

to PetitionerÓs attention during the April 7, 2004 , inspection

had been corrected. Subsequent to the April 2004 inspection,

the next inspection report introduced in evidence was of the

October 17, 2012 , inspection. Thus, during the period June 2004

to October 2012 , there is no evidence to conclude that

Petitioner was in vio lation of any FWC statutes or rules.

7 0 . FWCÓs contention that Petitioner has been noncompliant

with its rules for Ðover a decadeÑ is rejected. Rather, the

evidence established that PetitionerÓs troubles occurred within

the three years preceding the fi nal hearing.

7 1 . FWCÓs contention that Petitioner was unwilling or

unable to address deficiencies is also rejected. Petitioner

credibly testified that he and his employees were continuously

making improvements to the facility and to address deficiencies.

Petitioner did not believe it was acceptable for animals to be

in cages or enclosures with gaps in them or to have animals in

dens with unlocked doors. While Petitioner was dealing with

health issues, he fully expected that his employees were doing

their job. The FWC inspection reports do document some

uncorrected violations; however, subsequent inspection reports

establish that most of the violations were corrected. For

example, Investigator Brown testified at length on direct

examination that as of th e April 25, 2013 , inspection ,

Petitioner had not corrected several deficiencies from the

October 17, 2012 , inspection, including multiple failures

relating to enrichment for the lemurs. In support of BrownÓs

testimony, Respondent introduced what turned ou t to be a draft

version of BrownÓs report. When shown the correct report, Brown

admitted that his earlier testimony was inaccurate. The

accurate report demonstrates that the majority of the

deficiencies identified in the earlier report had been

corrected .

7 2 . An e - mail Brown sent on May 21, 2013 , also contradicts

FWCÓs contention that Petitioner was unwilling or unable to

address cited deficiencies. Brown stated, ÐI was out there a

couple weeks ago and Mr. Holly has made some serious progress to

correct those identified issues. As for being on the up and up,

seems to be so far.Ñ

7 3 . Thus, the record contains substantial credible

evidence of PetitionerÓs attempts to correct or prevent

violations, and no evidence of any refusal to correct

violations.

Rel ated Violations in Another Jurisdiction

7 4 . There is no clear and convincing evidence that

Petitioner is guilty of violations from other jurisdictions.

Deterrent Effect of Revocation

7 5 . According to FWC, to allow Petitioner to continue to

operate will send a message to other licensees that they will be

allowed to continue to operate despite repeated failures to

follow FWC rules.

Mitigating or Aggravating Factors

76 . The evidence established that for many years

Petitioner had an exemplary facility. It appears that

PetitionerÓs difficulties with FWC arose in 2012 when , due to

health issues , he was forced to rely heavily on Ms. Greely.

Before his health issues, Petitioner spent about 80 percent of

his time on his wildlife operation. Petitioner was in th e

hospital several times and assumed his employees were doing what

they were supposed to. He was in the hospital during the time

when Greely was his employee.

77 . According to Petitioner, he is now healthy and is

going to work full time again. He also has terminated

Ms. GreelyÓs employment and hired a replacement manager who

holds Class I, II , and III licenses. It appears that Petitioner

has corrected the underlying problems that led the agency to

conclude that his licenses should be revoked.

78 . Fo r its part, FWC acknowledges that Petitioner has

made some efforts to correct violations over the years, but

numerous caging, sanitation, and record violations have

persisted at the facility for years, justifying revocation of

PetitionerÓs licenses. For e xample, many of the monkeys at the

facility were not provided with dens, shelters, elevated

shelving , and manipulation devices, and were left to sit in

small cages without stimulation. Some were not even provided

protection from the elements. Petitioner has not made an effort

to provide FWC with records of acquisitions and dispositions for

years.

79 . FWC also asserts Petitioner has been given every

opportunity to correct his violations, yet has been unwilling or

unable to do so.

8 0 . According to FWC, even had Petitioner corrected all of

the cited violations, denial and revocation of his licenses

would still be proper, citing, Melanie Boynes and TarzanÓs Big

Cat Sanctuary v. Florida Fish and Wildlife Conservation

Commission , Case No. 12 - 2909 (Fla. DOAH March 29, 2013).

8 1 . In Boynes , FWC relied on a different rule as

authorization to deny an applica tion for a Class I and/or

Class II license that would have allowed the Petitioner to

operate a facility for big cats. That rule had been repealed at

the t ime of the decision, and the ALJ therefore relied solely on

the agencyÓs bare constitutional authority to exercise

regulatory powers. See Boynes , at p. 15. The ALJ in Boynes did

not consider the standard set forth in r ule 68 - 1.010(5).

8 2 . In addition, Boynes involved the denial of an

application, not a revocation. As such, the

Petitioner/applicant in Boynes had the burden of proving her

entitlement to a license by a preponderance of the evidence.

See Boynes , at p. 14 (citing DepÓt of Banking and Fin. v.

Osborne Stern , 670 So. 2d 932 (Fla. 1996)). As discussed above,

in this case , the agency has the burden of proving by clear and

convincing evidence that PetitionerÓs licenses should be

revoked.

83 . Finally, Boynes is factually distinguishable, as the

circumstances leading to the license denial were more egregious,

including tiger cages that lacked structural integrity, an

arrest, removal of animals, lack of a required USDA license, and

repeated misrepresentations on applications. None of those

facts exist here. The Boynes decision is therefore of limited

precedential value in this revocation proceeding involving a

different burden and standard of proof.

Conclusion

8 4 . Upon careful consideration of the factors set forth in

r ule 68 - 1.010(5), the unde rsigned concludes that FWC has not

proven by clear and convincing evidence that revocation of

PetitionerÓs licenses is warranted. However, given the numerous

violations cited by FWC in recent years, in particular , the

failure to maintain accurate records of animals bought, sold , or

transferred, suspension of PetitionerÓs licenses is appropriate.

Specifically, the undersigned recommends that FWC suspend

PetitionerÓs licenses for a period of six months, and thereafter

until such time as an on - site inspectio n of PetitionerÓs

facility reflects substantial compliance with all applicable FWC

statutes and rules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Conservation Commission enter a f inal o rder adopting the

F indings of F act and C onclusions of L aw set forth in this

Recommended Order. It is further Recommended that the f inal

o rder suspend PetitionerÓs lic enses to Possess Class I,

Class II , and Class III w ildlife for e xhibition or p ublic s ale

and his g ame f arm l icense for a period of six months, and

thereafter , until such time as an on - site inspection of

PetitionerÓs facility reflects substantial compliance with all

applicable FWC statutes and rules.

DONE AND ENTE RED this 1st day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 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 1st day of February , 2016 .

ENDNOTE S

1/ All statutory references are to the 2015 version of the

Florida Statutes unless otherwise noted.

2/ According to Petitioner, the tipster was Neal Johnson, a

former employee at PetitionerÓs facility.

3/ The undersigned has also disregarded alleged violations of

USDA rules that allegedly occurred on October 31, 2012 ;

October 29, 2013 ; and January 23, 2014. No representative from

the USDA testified concerning these violations and any

references to USDA determinations are uncorroborated hearsay

that cannot be used to support a revocation. See

§ 120.57(1)(c), Fla. Stat .

COPIE S FURNISHED:

William John Cook, Esquire

Barker and Cook, P.A.

Suite 790

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Ryan Smith Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Flor ida 32399 - 1600

(eServed)

Eugene Nichols ÐNickÑ Wiley II, Executive Director

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Merid i an Street

Tallahassee, Florida 32399 - 1600

(eServed)

Harold G. ÐBudÑ Vielhauer, Gener al Counsel

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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 Final Order in this case.