15-005654 Carla Santangelo vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Thursday, June 30, 2016.

Summary: Petitioner proved her entitlement to a Captive Wildlife Animal Farm license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLA SANTANGELO,

Petitioner,

vs. Case No. 15 - 5654

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final he aring in this case was held by video

teleconference on May 17, 2016, at sites in Tallahassee and West

Palm Beach, Florida, before Bram D. E. Canter, Administrative Law

Judge of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Raymond M. Masciarella II, Esquire

Raymond Masciarella II, P.A.

Summit Building, Suite 340

840 U.S. Highway 1

North Palm Beach, Florida 33408

For Respondent: Ry an Smith Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUE

The is sue for determination in this case is whether

Petitioner is entitled to a Captive Wildlife Game Farm License

from the Florida Fish and Wildlife Conservation Commission

(ÐFWCÑ).

PRELIMINARY STATEMENT

On May 15, 2015, Petitioner submitted an application for a

Captive Wildlife Game F arm L icense to FWC. On August 6, 2015,

FWC sent written notice to Petitioner that her application was

denied. Petitioner filed a petition to challenge the denial of

her application and the matter was referred to DOAH to conduct an

evidentiary hearing.

At the final hearing , Petitioner testified on her own

behalf. Petitioner Ós Exhibits 1 and 2 were admitted into

evidence. Exhibit 2 was not admitted for the truth of the

matters asserted. FWC presented the testimony of Lt. Loren

Lowers. FWC attempted to present the testimony of Investigator

Jamie Holcomb by telephone, but there was no notary public

present with the witness to administer the oath as required by

Florida Administrative Code Rule 28 - 106.213(5)(b). Therefore,

Mr. Hol combÓs testimony was not permitted.

The one - volume Transcript of the final hearing was filed

with DOAH. The parties submitted proposed recommended orders

that were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1 . Petitioner, Carla SantAngelo, is a natural person who

resides at 5260 Bluff Hammock Road, L orida, Highlands County,

Florida.

2. FWC was created pursuant to Article IV, section 9 of the

Florida Constitution, to Ðexercise the regulatory and executive

po wers of the state with respect to wild animal life and fresh

water aquatic life.Ñ FWC has exclusive jurisdiction to regulate

the possession, sale, and display of captive wildlife in Florida.

The Application

3. PetitionerÓs application lists the locatio n of the

proposed game farm as 5260 Bluff Hammock Road, L orida, which is

also her residential address. Petitioner proposed to rear,

possess, exhibit, and sell fallow deer, sika deer, axis deer and

blackbuck antelope, all of which are designated by the FWC as

Class II Wildlife.

4. Florida Administrative Code Rule 68A - 6.0022(5)

establishes the criteria for obtaining a permit to possess

Class II wildlife. It provides in pertinent part:

(a) Age Requirement: Applicants to possess

Class I or Class II wildli fe shall be at

least 18 years of age.

(b) Applicants shall not have been

convicted of any violation of captive

wildlife regulations or venomous reptile or

reptile of concern regulations involving

unsafe housing of wildlife or that could

potentially endan ger the public; any

violation involving the illegal

commercialization of wildlife; any violation

involving cruelty to animals; or any

violation involving importation of wildlife

within three (3) years of the date of

application.

* * *

(d) Experience a nd examination requirements

for Class II permits:

1. Applicants may qualify for a permit for

Class II wildlife by documenting one year of

experience (to consist of no less than 1000

hours) as defined in subparagraphs 68A -

6.0022(5)(c)1. - 4., F.A.C.

5. I t was stipulated by the parties that Petitioner

satisfied the requirements in rule 68A - 6.0022(5).

6. In its letter of denial, the reason given by FWC for

denying PetitionerÓs application was ÐFWC has reason to believe

you were operating the illegal game farm with your husband . Ñ

7. PetitionerÓs husband, Daniel SantAngelo, is the

president of Okeechobee Outfitters. He was charged and convicted

of operating a game farm at 5260 Bluff Hammock Road without a

license. The date of his conviction is not in the record, but is

likely sometime in 2015.

8. Okeechobee Outfitters was not charged or convicted of

operating a game farm without a license.

9. Petitioner was formerly the vice president, director,

secretary, and treasurer of Okeechobee Outfitters. Her corporate

functions included disbursing checks on behalf of the

corporation, acting as secretary, cooking, answering phone calls,

answering e - mails, cleaning, paying electric bills, and booking

hunts.

10. FWC asserted that PetitionerÓs position and activ ities

with the corporation were tantamount to her personal possession

of Class II wildlife without a permit.

11. Daniel SantAngelo owns the property located at 5260

Bluff Hammock Road. Okeechobee Outfitters owns property at 5229

Bluff Hammock Road, High lands County, Florida , and a site located

at Brighton Seminole Indian Reservation, Okeechobee County,

Florida.

12. Petitioner has no ownership interest in any property

owned by Okeechobee Outfitters.

13. Petitioner is not a shareholder of Okeechobee

Ou tfitters.

CONCLUSIONS OF LAW

14. All persons who 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.

15. As the applicant for the permit, Petitioner bears the

burden of proving entitlement to the permit by a preponderance of

the evidence. See Fla. DepÓt of Child . & Fam s . v. Davis Family

Day Care Home , 160 So. 3d 854, 856 (Fla. 2015).

16. Although Petitioner meets the qualifications set forth

in rule 68A - 6.00 22(5), FWC contends that Florida Administrative

Code Rule 68 - 1.010 must also be considered and it provides a

separate ground for denial of the application.

17. Rule 68 - 1.010(5) establishes factors to be considered

by FWC in determining whether to deny a license:

(a) The severity 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 ha s been licensed or permitted;

(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 th e refusal or failure of the applicant,

licensee or permittee 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 non - rene wal;

(i) Any other mitigating or aggravating

factors that reasonably relate to public

safety and welfare or the management and

protection o f natural resources for which the

Commission is responsible.

18. FWC relies primarily on factor (c) above, the e xistence

of prior violations of c hapter 379 , Florida Statutes, or the

rules of the Commission. FWC contends that Petitioner, through

her position with Okeechobee Outfitters, possessed wildlife

without a permit in violation of FWC rules.

19. Petitioner a rgues that rule 68A - 6.0022, rather than any

provision of rule 68 - 1.010, is controlling based on the legal

principal that a specific rule covering a particular subject

matter controls over a general rule covering the same subject in

general terms. See Stor emel v. Columbia Cnty . , 930 So. 2d 742

(Fla. 1st DCA 2006). However, rule 68 - 1.010 clearly incorporates

the eligibility requirements of rule 68A - 6.0022. See Fla. Admin.

C ode R . 68 - 1.010(1)(b). Statutes and rules must be construed

together to harmonize t he statutes and give effect to the

Legislature's intent. Bd. of Trustees, Jacksonville Police &

Fire Pension Fund v. Lee , 189 So. 3d 120, 126 (Fla. 2016).

Reading rule 68 - 1.010 in pari materia with rule 68A - 6.0022 shows

a clear intent to apply the factor s in rule 68 - 1.010(5) in

reviewing an application for a license in addition to the

eligibility requirements in rule 68A - 6.0022.

20. Although 68 - 1.010(5)(c) is applicable, the record

evidence does not support FWCÓs contention that Petitioner had

prior vio lations of chapter 379 or the rules of the Commission.

In essence, FWC is a sserting that, if it had brought a case

against Petitioner for illegally possessing Class II wildlife, as

it did against her husband, FWC would have been able to obtain a

convictio n against her. However, no case was brought against

Petitioner and it cannot simply be presumed that she would have

been convicted in a criminal proceeding for illegally possessing

wildlife.

21. FWC argues that Okeechobee Outfitters is an alter ego

of Pe titioner based on her positions and functions at the

corporation, citing Dania Jai - Alai Palace, Inc. v. Sykes , 450 So.

2d 1114 (Fla. 1984). However, piercing the corporate veil to

establish personal liability requires a showing that the

corporation was a mere device or sham to accomplish some ulterior

purpose, or is a mere instrumentality or agent of another

corporation or individual owning all or most of its stock, or

where the purpose is to evade some statute or to accomplish some

fraud or illegal purpos e. Id. at 1117 - 18. The record evidence

does not support any of these requirements for making a corporate

officer personally liable.

22. Furthermore, any attempt to deny a license based on an

alleged past violation of law, as opposed to an actual crimin al

conviction or administrative determination of violation, begs the

question of when the applicant will be afforded due process to

contest the charge of a past violation. FWC suggests that it can

convert a licensing proceeding like the present one, in wh ich the

applicant has the burden to demonstrate by a preponderance of the

evidence that the applicant is entitled to the license, into an

enforcement proceeding in which FWC has the burden to prove by

clear and convincing evidence that the applicant violat ed the law

in the past .

23. Even if this were allowable, FWC would not have met its

burden in this case to show that Petitioner violated the law in

the past by possessing wildlife without a license.

2 4 . FWC also asserts that PetitionerÓs application can also

be denied for her noncompliance with rule 68 - 1.010(2)(c), which

pertains to the failure to comply with requirements of a

previously - issued license. Although Petitioner has no

previously - issued license, FWC states in its proposed recommended

order (b ut without reliance on any evidence presented at the

final hearing) that FWC interprets this rule to apply even to

persons who have not been issued licenses. FWC states that this

interpretation is reasonable because, otherwise, FWC could not

consider past violations when determining whether to grant a

license.

2 5 . The construction of a rule by an agency charged with

the ruleÓs administration should not be overturned unless clearly

erroneous. Humana, Inc. v. DepÓt of Health & Rehab. Servs. , 492

So. 2d 38 8 (Fla. 4th DCA 1986). In this case, the FWCÓs

interpretation of rule 68 - 1.010(2)(c) is clearly erroneous

because it conflicts with the plain language of the rule, which

expressly applies to persons who have been issued licenses.

26. Petitioner proved h er entitlement to the game farm

license.

27. FWC complains that if it is determined that Petitioner

is entitled to a license under these circumstances , persons will

be encouraged to possess wildlife without a license and only

apply for a license after th ey are caught. However, this case

does not involve a person who was shown to have possessed

wildlife without a license prior to her application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Florida Fish and Wildlife

Conservation Commission issue the Captive Wildlife G ame F arm

L icense to Petitioner.

DONE AND ENTERED this 30th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 3 0th day of June , 2016 .

COPIES FURNISHED:

Raymond M. Masciarella II, Esquire

Raymond Masciarella II, P.A.

Summit Building, Suite 340

840 U.S. Highway 1

North Palm Beach, Florida 33408

(eServed)

Tracey Scott Hartman, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Eugene Nichols ÐNickÑ Wiley II, Executive Director

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Harold G. ÐBudÑ Vielhauer, General Counsel

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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 Final Order in this case.