15-003948 Rachel Arnott vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Friday, February 26, 2016.

Summary: Petitioner failed to demonstrate entitlement to Class II and III captive wildlife licenses due to multiple rule violations and court conviction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RACHEL ARNOTT

Petitioner ,

vs. Case No. 1 5 - 394 8

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent .

_______________________________/

RECOMMENDED OR DER

On December 8 , 2015, this case was heard in Kissimmee,

Florida, by D . R. Alexander, the assigned Administrative Law

Judge of the Division of Administrative Hearings (DOAH ) .

APPEARANCES

For Petitioner : Rachel Arnott, p ro se

8520 Sioux Trail

Kissimmee, Florida 34747 - 1531

For Respondent : Ryan Smith Osborne, Esquire

Florida Fish and Wildlife

Co nservation Commission

620 South Meridian Stree t

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUE

The issue is whether Petitioner 's application s to renew her

License s to Possess Class II and III Wildlife for Exhibition or

Public Sale should be approved.

PRELIMINARY STATE MENT

On June 11, 2015, Respondent, Florida Fish and Wildlife

Conservation Commission (Commission), issued its Notice of

Denial advising Petitioner that her applications for two

licenses to possess wildlife for exhibition or public sale were

d enied because : (1) on April 24, 2015 , she was adjudicated

guilty in Osceola County Court of maintaining captive wildlife

in unsanitary conditions , a violation of section 379.401 (7) ,

Florida Statutes (2015) ; and (2) during inspections of her

captive wildlife facility in February and July 2014, numerous

violations of Commission rules were observed but were never

corrected . Petitioner timely requested a hearing, and the

matter was referred by the Commission to DOAH to conduct a

hearing on the dispute.

At the hearing, Pet itioner testified on h er own behalf and

presented one witness. Petitioner's Composite Exhibit 1 was

accepted in evidence. The Commission presented the testimony of

three witnesses. Commission E xhibits A through F and H through

K were accepted in evidenc e . O n February 15, 2015, Respondent

supplemented the record with documents related to an issue

raised by Petitioner for the first time at hearing.

A one - volume T ranscript of the hearing has been prepared.

The parties filed p roposed r ecommended o rder s (PR O s ) , which have

been considered in the preparation of this Recommended Order.

After Respondent filed its PRO, Petitioner filed a response to

the PRO, which is not authorized by the rules, and it has been

disregarded.

FINDINGS OF FACT

1. The Commission is the state agency that has exclusive

jurisdiction to regulate the possession, sale, and display of

captive wildlife in Florida.

2. Before moving to her current residence in Kissimmee,

Petitioner resided in Tampa , where she possessed a bobcat kitten

and a kinkajou , a small rain forest creature . I n May 2012, she

advised the Commission by email that she intended to move to

Central Florida. She requested that the Commission provide her

with copies of rules that would apply if she kept a bobcat

inside her n ew residence. I n response to that request, the

Commission provided her with c opies of all applicable rules .

She was also told that , in order to secure the bobcat, she would

have to install chain link on her windows and a secondary safety

entrance to the home. These features are necessary in order to

ensure public safety.

3. On an undisclosed date, Petitioner moved to a

2,000 square - foot home located at 8520 Sioux Trail, Kissimmee,

where she established a captive wildlife facility . Later, she

acqui red two more bobcats, which she intended to use for

presentations and educational shows in the Central Florida area.

For that purpose, she formed Florida's C . L . A . W . S . , an

unincorporated organization that exhibits and sells wildlife at

local events in Cent ral Florida to educate the public about , and

raise money for, the care of her animals . Her full - time

vocation , however, is a tattoo artist , which requires that she

work around 60 hours per week, often late into the night and

during the early morning hours .

4 . " C aptive wildlife" species are listed in Florida

Administrative Code Rule 68A - 6.002. The rule establishe s three

classes of captive wildlife : I , II, and III . E ach requir es a

license issued by the Commission. Until it expired on March 5,

2015, Pe titioner possesse d a Class II license, issued on

March 14, 2014, which allow ed the exhibition and sale of Felidae

(the family of cats) . Until it expired on June 10, 2015, she

also possessed a Class III license , first issued on June 3,

2011 , which allow ed the exhibition and sale of mammals, birds,

reptiles, amphibians, and conditional species . By holding these

licenses, she was responsible for the care of the captive

wildlife at her facility. The instant case involves her

applications to renew the two licenses.

5. After her licenses expired and the two applications for

renewal denied , on July 1, 2015, a Notice to Relinquish Wildlife

was issued by the Commission . In response to that order,

Petitioner moved her Class II and III captive wildlife to a

fri end's facility, where they remain pending the outcome of this

proceeding. Currently, she keeps only dogs and cats at her

home.

6 . Wh en the Kissimmee f acility was fully operational,

Petitioner had more than 30 animals/reptiles, including foxes,

bobcats, skunks, snakes (non - venomous) , tegu lizard s , and a

kink ajou . All of these species are listed as captive wildlife

in rule 68A - 6.002 .

7 . On February 25, 2014, an announced , routine inspection

of Petitioner's facility was conducted by Captive Wildlife

Inves tigator Damon Saunders. This type of inspection is

required when a new facility is established . Durin g the

inspection, Investigator Saunders observed seven rule

infractions , which are noted in his report and depicted in

photographs taken that day . See R esp. Ex. C and D . Overall, he

found the condition of the facility to be "substandard."

8 . The documented violations on February 25, 2014, are as

follow s :

a. There was no safety entrance for the

bobcat enclosure, as required by rule 68A -

6.003(1)(a);

b. There was rusting that affected the

structural integrity of the bobcat

enclosure, in violation of rule

68A - 6.0023(5)(e);

c. Weld spots on the east side of the

bobcat enclosure were coming undone due to

corrosion in violation of rule

6 8A - 6.0023(2)(b) , which requires caging

or enclosures to be sufficiently strong to

prevent escape and to protect the caged

animal from injury;

d. The kinkajou was housed in a bird cage,

in violation of rule 68A - 6.004, which

requires a cage size of six feet by eight

feet, and six feet high;

e. There w as no record for the source of

acquisition for her reticulated python,

which is required by rule 68A - 6.0023(6);

f. A microchip passive integrated

transponder (PIT) tag was not detected for

the reticulate d python ; a PIT tag is

required by rule 68 - 5.001(3)(e) 2.; and

g. The fox and various reptile enclosures

had dirty water bowls, in violation of rule

68A - 6.0023(5)(b), which requires water

containers being used to be clean.

9 . At the end of the inspectio n, Investigator Saunders met

with Petitioner and identified each infraction he observed ; he

explained how each should be corrected ; and he told her that she

had 30 days, or until March 27, 2014, to correct the violations .

She was also given a copy of the Commission's captive wildlife

rules, with the violated rules highlighted. Although

Investigator Saunders observed several other violations that

day, th e y were not noted on his inspection report because he

knew the facility had just been established, and h e wished to

give Petitioner additional time in which to get her facility

operating in accordance with all rules.

10. On July 28, 2014, or approximately five months later,

an unannounced, follow - up inspection was conducted by Captive

Wildlife Investigators Steven McDaniel and Rick Brown. The

purpose of the inspection was to determine if the violations

observed on February 25, 2014, had been corrected. The

inspection was purposely delayed until July , rather than 30 days

after the first inspection, so that Petitioner would have

adequate time to take corrective action. Petitioner

complained that the inspection occurred when she just awoke

around 10: 2 0 a.m. , after a long night at work and before she had

time to clean the facility . F or obvious reasons, howe ver, the

Commission does not give licensees advance warning of follow - up

inspections.

1 1 . During the inspection, the investigators noted that

Petitioner had six foxes, three bobcats, two skunks, a kinkajou,

a reticulated python, and several nonvenomous sn akes. With the

exception of the safety entrance for the exterior bobcat cage,

Petitioner acknowledged that none of the violations observed

during the first inspection had been corrected. The

investigators found s ome wildlife liv ing in outdoor cages or

ot her enclosures , while others , including two skunks, a bobcat,

a kinkajou, a reticulated python, and several reptiles , were

living in her home. Investigator McDaniel testified that "it

looked as if very little had been done" and characterized the

condition of the wildlife as "mediocre to poor." Investigator

Brown noted that there was an "extreme" lack of care of the

wildlife, the violations were "serious , " and they were having an

adverse impact on the health and well - being of the wildlife .

1 2 . The inves tigators observed a number of rule

violations, which are listed in their Inspection Report and

depicted in photographs taken that day. See Resp. Ex. E and F.

The rule violations are summarized below:

a. The outer safety door for the cage

containing two bobcats was unsecured, in

violation of rule 68A - 6.0023(2)(b), which

requires the cage to be sufficiently strong

to prevent escape;

b. There was standing, stagnant water in

the bobcat shelter, in violation of rule

68A - 6.0023(1), which requires wildlife to be

maintained in sanitary conditions;

c. Both t he bobcats' water container and

water in the container were dirty, in

violation of rule 68A - 6.0023(5)(b), which

requires water containers being used to be

clean and requires clean drinking water to

be prov ided daily;

d. There were large amounts of old and

fresh fecal matter throughout the bobcat

cage, in violation of rule 68A - 6.0023(5)(d),

which requires fecal waste to be removed

daily from inside, under, and around cages

and stored or disposed of in a ma nner which

prevents noxious odors or pests ; and carrion

flies were evident on the fecal matter;

e. The bobcat cage floor had not been raked

every three days, as required by rule 68A -

6.0023(5)(e);

f. The rust in the bobcat cage that was

observed during the February 25 inspection

w as still evident and excessive, in

violation of rule 68 A - 6.0023(5)(e), which

requires any surface of a cage or enclosure

that may come into contact with animals to

be free of excessive rust that prevents the

required cleaning or that affects the

structural strength;

g. The broken welds on parts of the cage

panel walls on the bobcat cage observed

during the February 25 inspection had not

been repaired, in violation of rule

68A - 6.0023(2)(b), which requires caging or

enclosu res to be sufficiently strong to

prevent escape and to protect the caged

animal from injury;

h. The cage for the two foxes measured ten

feet by five feet, two inches by six feet,

and did not meet the caging requirements of

eight feet by six feet by six f eet specified

in rule 68A - 6.004(4)(h)2.a.;

i . A fox was found in a small kennel cage

inside Petitioner's home under veterinary

care for an injured foot in violation of

rule 68A - 6.0041(2), which requires animals

being temporarily housed in smaller cages

f or veterinary care to be in cages no

smaller than that required for the caged

animal to stand up, lie down, and turn

around without touching the sides of the

enclosure or another animal;

j . Digging was observed between outdoor fox

cages exposing the bott om apron in violation

of rule 68A - 6.003(1)(b)1., which requires

the bottom apron to be buried to prevent

injury to the captive wildlife in the

enclosure;

k . Two snakes in the bull/gopher snake

family were observed in their own cages

without water and a b all python was observed

in a glass cage without water in violation

of rule 68A - 6.0023(5)(b), which requires

that clean drinking water be provided daily;

l . The ball python was in a glass cage with

shed skin and old fecal matter; there were

two Machlot's pythons in a large cage that

was littered with excessive old fecal matter

and old shed skins; a boa constr i ctor cage

had old fecal matter in it; the reticulated

python cage had old fecal matter and shed

skins throughout the cage; the tegu lizard

cage had o ld feces ; all in violation of rule

68A - 6.0023(5)(d), which requires fecal

material to be removed daily, and rule

68A - 6.0023(5)(e) , which requires hard floors

within cages or enclosures to be cleaned a

minimum of once weekly;

m . The kinkajou was still h oused in the

bird cage, which was too small; there was no

water or food present; the floor of the cage

was covered in old fecal matter; and

Petitioner admitted that the cage had not

been cleaned in four days . These conditions

violated rule 68A - 6.0023(5)(b ) and (c),

which require s the animals to be provided

clean drinking water and food;

n . The third bobcat was being housed inside

Petitioner's house in a spare bedroom

lacking a safety entrance as required by

rule 68A - 6.003(1)(a); the two doors leading

int o the room were hollow - core doors and not

of sufficient strength , and there was no

required wire or grating covering the

windows , in violation of rule 68A -

6.003(3)(e), which requires potential escape

routes to be equipped with wire or grating

of not less t han 11.5 - gauge chain link or

equivalent;

o . Two skunks were housed in a spare

bedroom that adjoined the bobcat cage room;

the floor was covered in mainly old , but

some new, smeared fecal matter; there were

no water bowls; the bathroom window was open

an d only covered by the typical bug screen

associated with household windows ; all in

violation of rule 68A - 6.0023(5)(d), which

requires cages and enclosures to be

ventilated to prevent noxious odors, and

rule 68A - 6.003(3)(h), which requires the

room to be co nstructed of materials of not

less than 14 - gauge wire or strength

equivalent and the escape routes to be

secured;

p . Petitioner was unable to provide records

of acquisition of any animals in her

possession, as required by rules

68A - 6.0023(6) and 68 - 5.001(3)(e).6 . ; and

q . Petitioner's Critical Incident Disaster

Plan was only partially completed, in

violation of rules 68A - 6.0022(7) and

68 - 5.001(3)(e)5.

Each of these violations is substantiated by clear and

convincing evidence.

1 3 . At the c onclusion of the inspection, Petitioner was

given a nother copy of the Commission's rules, with the violated

rules highlighted ; she was told how each infraction should be

corrected ; she was asked if she had any questions regarding the

violations ; and she wa s given another copy of the first

inspection report. A new 30 - day deadline was established for

correcting all violations except the source of acquisition and

critical incident plan , for which she was given 60 days to take

corrective action. However, no f ollow - up inspections were made.

1 4 . Petitioner contend s that if the follow - up inspection

on July 28, 2014, was made later than 10:30 a.m. , she would have

had time to feed and water the wildlife and clean their cages.

However, the amount and appearance of the feces, the presence of

snake skins, and the appearance of dirty water bowls in the

enclosures indicates that the enclosures had not been cleaned

for an extended period of time.

15. During the first inspection, Petitioner identified the

source of ac quisition of all wildlife, except the reticulated

python. After the first inspection, Petitioner acquired a boa

constrictor, two Macklot's pythons, four tegus, two carpet

pythons, one gopher snake, one bull snake, four sulcatta

tortoises, one blue tongue skink (lizard), and one Central

American wood turtle. However, s he was unable to produce

acquisition paperwork for any captive wildlife. She blamed this

on the fact that many of her wildlife were donated to her or

purchased at exhibitions, apparently mea ning that the names of

the donors or sellers were unknown. Acquisition information is

essential, as the Commission uses these records to combat the

illegal trafficking of wildlife.

1 6 . Petitioner blamed many of the facility violations on a

lack of financ ial resources and personal issues in her life that

arose in 2014 , leaving her with little time or resources to

comply with Commission rules . She pointed out that an injury to

one of the foxes required an expenditure of almost $2,000.00 in

one month alone, which drained her resources; her father was

diagnosed with a terminal illness and passed away a short time

later; and her fiancée required two surgeries, which prevented

him from assisting her in caring for the wildlife. She also

testified that she was w orking 60 - hour weeks as a tattoo artist

to support herself, which left very little time to care for the

wildlife. Given these time constraints, it is surprising that

she continued to acquire even more wildlife after the first

inspection was made. While P etitioner maintains that the

exhibition and sale of animals is intended to support her

facility, it is apparent that whatever money was generated by

that activity is insufficient to adequately care for the

wildlife. In su m, P etitioner contend s that many o f the

violations are unwarranted or simply t echnical violations of the

rule s , or other circumstances prevent ed her from taking

corrective action and maintaining the facility in accordance

with Commission rules . The evidence belies this contention.

1 7 . Although the Commission presented evidence of alleged

violations of United States Department of Agriculture rules

observed during an inspection by that agency on June 30, 2015,

for which warnings were issued, these violations were not cited

in the Notice o f Denial as a basis for denying the applications

and have been disregarded by the undersigned . See, e.g. ,

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

1993)(matters not charged in an administrative action cannot be

considered as violation s). Likewise, Petitioner's contention

that the Commission failed to act on her applications within

90 days, raised for the first time during her testimony, has

been disregarded as being untimely. See also § 120.60(1), Fla.

Stat.

1 8 . Although each infr action noted during the second

inspection constituted a violation of state law, a criminal

citation for only three violations was issued and reported to

the local State Attorney's Office. These included a failure to

correct the violations noted during the February inspection;

maintaining captive wildlife in unsanitary conditions; and

improper caging for Class II wildlife. However, t h e State

Attorney decided to prosecute Petitioner for all violations. On

July 28, 2014, c riminal charges were filed in Count y Court . O n

advice of her counsel, on April 24, 2015, Petitioner pled guilty

to all charges and was adjudicated guilty of maintaining

captive wildlife in unsanitary conditions in violation of

section 379.401(7). Besides having a fine imposed, Petitioner

was placed on probation for six months and required to perform

community service . Under the terms of her probation, she was

ineligible to possess Class I or II wildlife for the duration of

her six - month probation period .

1 9 . Just before her criminal c ase was concluded,

Petitioner filed applications to renew her licenses. A major

impediment to approving them is a Commission rule that requires

denial of an application if the applicant has been adjudicated

guilty of a violation of any provision of chapte r 379 . See Fla.

Admin. Code R. 68 - 1.010(2). The same rule provides, h owever,

that denial is not automatic , as the Commission is required to

consider nine factors when determining whether to approve or

deny an application. See Fla. Admin. Code R. 68 - 1.01 0(5) (a) -

(i) . A fter considering each relevant factor , the Commission

issued its Notice of Denial on June 11, 2015. Petitioner then

requested a hearing.

20 . Petitioner unquestionably care s for wildlife and would

n ever intentionally harm them through inatt ention or lack of

care. However, due to personal and financial issues , and full -

time employment outside her home that consumes m uch of her time,

she is unable to comply with Commission rules for operating a

captive wildlife facility. There is clear and c onvincing

evidence to support the Commission's denial of the applications .

CONCLUSIONS OF LAW

2 1 . In this case, Petitioner seeks renewal of her Class II

and III licenses. As such, she has the burden of proving

entitlement to licensure by a preponderance of the evidence .

See Fla. Dep't of Children & Fam i l ie s v. Davis Family Day Care

Home , 160 So. 3d 854 , 856 ( Fla. 2015 ) (Canady, J., dissenting) .

Assuming , however, that the Commission bears the burden of

showing by clear and convincing evidence that Petiti oner is

unfit for licensure, the Commission has met this standard of

proof . See, e.g. , State Dep't of Banking & Fin. v. Evans ,

540 So. 2d 884, 886 (Fla. 1st DCA 1989)(refusal to renew a

license to a per son who has once demonstrated that he possesses

th e statutory prerequisites to licensure cannot be used as a

substitute for a license revocation proceeding).

2 2 . All individuals that have or possess captive wildlife

for the purpose of public display or public sale must have a

license from the Commission. See § 379.3761(1), Fla. Stat. All

wild animal life includes captive wildlife.

23. Rule 68 - 1.010(2) (a) provides that an application " for

any license . . . shall, when the factors enumerated in

subsectio n (5) warrant denial, be denied" if the applicant has

" received an adjudication other than acquittal or dismissal of

any provision of chapter 379 . . . ." Because of Petitioner's

adjudication of guilt, these factors come into play.

2 4 . The factors enumerated in subsection (5) are as

follows:

(a) The s everity 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 permitted;

(e) The effect of denial, suspension,

revocation or non - renewal upon the

applicant, licensee, or permittee's existing

livelihood;

(f) Attempts by the applicant, licensee or

permittee to correct or prevent violations,

or the refusal or failu re 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 o r non - 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.

2 5 . The evidence s upports a conclusion tha t Petitioner's

lack of care of the animals was "severe" or "extreme " ; her

failure to meet standards pertaining to adequate caging of

bobcats present s a danger to the public; with one exception, she

failed to correct the violations noted at the February 201 4

inspection ; Petitioner's failure to secure a license in this

proceeding will not affect her primary livelihood ; there is no

evidence that Petitioner undertook any meaningful effort s to

correct the violations; there is no record of any violations in

other jurisdictions; there is no evidence one way or the other

that a non - renewal of the licenses will serve as a deterrent to

other applicants; and while Petitioner's financial and personal

problems encountered during 2014 are a mitigating factor, at the

same time, the Commission extended by approximately f our months

the time for her to correct the February 2014 violations. When

weighing these factors as a whole, the Commission's denial of

the applications should be sustained.

2 6 . In her PRO, Petitioner ackno wledges for the first time

that she is not attempting to reinstate her licenses . Instead,

she asks for a second chance to "start over, and reapply as a

new license holder." She represents that t his would require her

to complete 1,000 hours of hands - on tr aining for the Class II

Felidai and 500 hours of hands - on training with Class III

ma m mals, reptiles, and condition al species . She also represents

that she will employ a professional company to design and build

new enclosures for all of the species. This case , however, is

limited to consideration of Petitioner's applications to renew

her Class II and III licenses. The resolution of th e case in

the Commission's favor does not bar Petitioner from reapplying

for another license at a later date.

RECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Fish and Wildlife and

Conservation Commission enter a final order denying Petitioner's

applications for Class II and III Wildlife licenses .

DONE AND ENTER ED this 26th day of February , 201 6 , in

T alla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative 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 26th day of February , 2 01 6 .

C OPIES FURNISHED:

Eugene Nichol s " Nick " Wiley, II, Executive Director

Florida Fish and Wildlife

Conservation Commiss ion

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Rachel Arnott

8520 Sioux Trail

Kissimmee, Florida 34747 - 1531

(eServed)

R yan Smith Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Stree t

Tallahassee, Florida 32399 - 1600

(eServed)

Harold G. "Bud" Vielhauer, General Counsel

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 323 99 - 1600

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All p arties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.