18-001114 Sherrie Wentworth vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Wednesday, June 13, 2018.

Summary: Petitioner did not carry her burden of ultimate persuasion to show entitlement to renewal of her Wildlife Rehabilitation Permit and her License to Possess Class III Wildlife for Exhibition or Public Sale.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRIE WENTWORTH,

Petitioner,

vs. Case No. 18 - 1114

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

May 1, 2018, by video teleconference at sites in Tallahassee and

Daytona Beach, Florida, before Francine M. Ffolkes, a designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Christopher Block, Esquire

Block Law Firm, PLLC

Post Office Box 560618

Rockledge, Florida 32956

For Respondent: Brandy Elaine Elliott, Esquire

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Petitioner , Sherrie Wentworth (Petitioner) , is entitled to

approval of her application s to renew her Wildlife Rehab ilitation

Permit, and her License to Possess Class III Wildlife for

Exhibition or Public Sale.

PRELIMINARY STATEMENT

Petitioner applied for renewal of her Wildlife

Rehabilitation Permit on November 3, 2017, and for renewal of her

License to Possess Class III Wildlife for Exhibition or Public

Sale on January 8, 2018. Respondent, Florida Fish and Wildlife

Conservation Commission (Respondent), denied both applications

for renewal on January 31, 2018. The denials alleged a series of

violations of captive wildlife laws in the years 2015 and 2017.

Petitioner timely challenged the denials and her challenge was

referred to DOAH . An administrative hearing was scheduled by

video teleconference for May 1, 2018. The parties filed their

j oint pre - hearing s tipulation on April 19, 2018, and timely pre -

filed their exhibits.

At the hearing, Petitioner pr esented the testimony of

V eterinarian Dr. Kim Castro ; Miriam Lundell , d irector of the

Chase Academy ; Donna Bloom, a volunteer at the East Coast

Wildlife Rehabilitation Center (East Coast) ; and she testified on

her own behalf. Petitioner ' s Exhibits 1 through 12 were admitted

into evidence. Respondent presented the testimony of Captive

Wildlife Section Supervisor Clint Deskins ; Reserve Officer Steve n

K. Grigg ; and Captive Wildlife Invest igator J. Scott Wilkenson.

Respondent ' s Exhibits 1 throug h 7 were admitted into evidence.

N o transcript of the proceeding was filed with DOAH.

Proposed recommended o rders were filed by the parties, and they

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The following F indings of F act are taken from the parties '

joint pre - hearing stipulation, and the direct evidence adduced at

the hearing.

Stipulated Facts

1. Petitioner pled no contest and had adjudication withheld

on the following seven captive wildlife violations on April 28,

2015:

a. Possession of Class I W ildlife (a tiger) without a

required permit (a violation of section 379.3761, F lorida

Statutes ) .

b. Failure to have a required permit for the

importation of non - native species of wildlife (a tiger)

(a violation of sect ion 379.231(1)) .

c. Failure to possess the required financ ial

responsibility for Class I W ildlife (a tiger) (a violation of

Florida Administrative Code R ule 68A - 6.0024(3) ) .

d. Maintaining Class I W ildlife (a tiger) on less than

five acres (a violation of rule 68A - 6.003(2)(c)2.a.) .

e. P ersonal possession of Class II W ildlife (a coyote)

without a required permit (a violation of section 379.3762) .

f. Unsafe housing of Class II W ildlife (a coyote)

(a violation of rule 68A - 6.0023(2) ).

g. Not having cagi ng of proper size for Class II

W ildlife (a coyote) (a violation of r ule 68A - 6.003(2)(c)4.b.) .

2 . Two warnings were issued by Respondent to Petitioner on

September 20, 2017, for the following two captive wildlife

violations:

a. Failure to keep complete accurate records of

squirrels entering the facility ( a violation of Florida

Administrative Code R ule 68A - 9.006(4)( b)) .

b. Failure to maintain a daily log of animals entering

the rehabilitation facility ( specifically to log a haw k taken in

on September 14, 2017) (a violation of rule 68A - 9.006(5)(e)) .

3 . No additional adjudications or violations were entered

against Petitioner between April 29, 2015 , and September 19,

2017 , that served as a basis for the denial at issue.

4 . There were no errors or omissions in the renewal

applications at issue and there have been no previous errors or

omissions in previous applications submitted by Petitioner that

serve as a basis for the denial at issue.

5 . There have been no material chan ges to the criteria used

to evaluate the issuance of the two licenses at issue since 2015.

6. Petitioner admits that squirrels were not properly

logged into Petitioner ' s records at the time of the September 20,

2017 , warning violations.

March 2015

7. In March 2015, then Captive Wildlife Investigator Steve n

Grigg responded to a n anonymous complaint about a tiger at East

Coast. See Resp. Ex. 4. Investigator Grigg testified that p rior

to that time Petitioner had expressed interest in getting a

tiger , and he advised her regarding the necessary steps to obtain

a Class I Wildlife permit that would allow her to possess a

tiger . He was a ware that the Class I Wildlife permit was denied

in July 2014. Petitioner acquired the tiger while the Class I

Wildlife permit application was pending , and she continued to

possess the tiger for several months after being denied.

8. At first, Petitioner denied having a tiger on the

premises . The tiger was an approximately 200 - pound female for

which , in March 2015, Petitioner neither had the Class I Wildlife

permit, nor did she have financial responsibility coverage and

five acres for exclusive use . In addition, the non - native tiger

was imported from outside the state without the necessary

importation permit . Investigator Grigg issued Petitioner four

separate citations related to un lawful possession of the tiger.

See Stipulated Fact No. 1.

9. Possession of a tiger without the necessary license and

financial responsibility is a serious safety concern , both for

the safety of the public and the person in possession of the

animal . Possession of a tiger without having five acres of land

on which no other use is taking place is necessary to ensure a

buffer between the tiger and the public . East Coast sits on

2.5 acres , and Petitioner leased an adjacent 2.5 acres. See Pet.

Ex. 2. Petitioner testified that she thought she had the

necessary five acres for possession of the tiger . However, an

examination of the lease for the adjacent property shows that

there was a ho me with a couple residing there.

10. Possession of a non - native tiger without the necessary

import permit is a potential danger to native species of

wildlife. Species outside of Florida may carry diseases not

present in Florida wildlife . B ringing these species into the

s tate without the necessary precautions associated with proper

permits places native wildlife at risk. In addition, Petitioner

kept the tiger at East Coast where injured and sick wildlife were

also presen t.

11. During the investigation of Petitioner ' s facility in

March 2015, Investigator Grigg also discovered that she was

keeping a coyote as a pet without a proper permit . Investigator

Grigg c ited Petitioner for keeping a Class II animal without the

proper permit , and for housing the coyote in a cage that was

neither the correct size nor the minimum necessary strength .

See Stipulated Fact No. 1.

12. A coyote is a Class II animal ÏÏ the second most

dangerous type of animal in Florida. Posse ssion of a coyote

without the necessary permit is a seriou s safety concern for the

public. Petitioner ' s housing of the coyote in caging that was

not as strong as the law requires also posed a danger to the

public .

13. Also during the Ma rch 2015 visit, Investigator Grigg

discovered that Pet itioner was keeping a red fox Ï Ï a C lass III

animal ÏÏ as a pet without a permit. Investigator Grigg issued a

warning to Petitioner a lthough he could have issued her a

citation . He also issued Petitioner a warning for housing the

fox in caging that was less than the minimum size required .

Petitioner testified that she applied to Respondent and was

granted a variance for the size of the cage for the red fox .

September 2017

14. On September 20, 2017, Captive Wildlife Investigator

J. Scott Wilkenson conducted an unannounced compliance inspection

of Petitioner ' s facility. See Resp. Ex. 7. Petitioner had not

entered approximately 60 squirrels into the facility logs as

required by her Wildlife Rehabilitation Pe rmit. That permit

state d " [c] omplete, accurate written records shall be kept by the

per mittee . . . . " and " [a] ll permittees shall keep a log on eac h

animal entering the facility for treatment . . . . " Petitioner

testified that she entered the squirrels into a daily log, but

she did not show proof of such a log to Investigator Wilkenson

at the time of the inspection . Volunteer Donna Bloom testified

that neither written nor electronic logs were provided to

Investigator Wilkenson at the time of the inspection.

Investigator Wilkenson issued a warning to Petitioner for the

failure to enter the 60 squirrels into her facility logs as

required by the law and her permit .

15. At the September 2017 inspection, Investigator

Wilkenson also n oted that Petitioner did not enter record of a

hawk into a daily log as required by Petitioner ' s Wildlife

Rehabilitation Permit in effect at the time . The Wildlife

Rehabilitation Permit state d that " [a] ll permittees shall keep a

log on each animal entering the facility for treatment. The log

shall include a record of the animals ' treatment, condition, and

disposition. " Petitioner offered into evidence a record that

purported to be the daily log reflectin g the intake of the hawk.

See Pet. Ex. 12. Investigator Wilkenson testified that he

initially requested these documents but that they were not

immediately available at the facili ty during his on - site

inspection. Investigator Wilkenson issued Petitioner a warning

for the failure to enter the hawk into a daily log as required by

her permit.

16. Petitioner and her recordkeeper , Ms. Bloom , admitted

that th e manual daily logs were not on - site during the

September 20 , 2017, inspection because Ms. Bloom took them home

to enter into the computer . She testified that H urricane Irma

had impacted electricity at the facility and delayed entry of the

manual daily logs into the computer.

17. The Wildli fe Rehabilitation Permit record keeping

requirements are necessary to ensure permittee accountability.

Records quickly show investigators what animals are on the

permittee ' s property and their condition. Accurate records

ensure that Respondent is able to carry out its constitutional

responsibility regarding the care of wildlife for protect ion of

both the public and the animals.

Other Aggravating Evidence

18. Investigator Grigg testified that over the years he

r epeatedly advised and warned Petitioner that it was necessary to

follow the captive wildlife laws, including maintain ing complete

and accurate records. Investigator Grigg ' s int eractions with

Petitioner showed him that she would intentionally and with

knowledge violate the captive wildlife laws for as long as she

could before getting caught. Her actions le ft him concerned that

she is not willing to comply with the captive wildlife laws. In

addition, Petitioner ha s expressed to him that she does not have

time to follow the rules and that Respondent ' s legal requirements

impede her ability to care for the animals . Both Investigator s

Grigg and Wilkenson testified that Petitioner should reduce the

number of species she intakes at the facility .

Mitigating E vidence

19. Petitioner testified that she opened East Coast in

approximately January 2012, giving up her prior profession as a

licensed pilot and investing approximately $100,000. Petitioner

testified that her facility is the only rehabilitation center

open 24 hours a day, seven days a week and year - round for injured

animal intake. She testified that she takes animals that other

centers will not and will travel from the center in Volusia

County to Flagler County to pick up injured animals. She

believes her operations provide a needed benefit to the community

in Volusia and Flagler Counties.

20. Ms. Lundell testified that the Chase Academy has

52 autistic children. The Academy partners with East Coast in

an educational program for the students. Petitioner brings in

the animals and educates the students about caring for and

handling injured wildlife and wildlife in general.

2 1 . Petitioner testified that in September 2017, there was

p ower loss and damage at East Coast caused by Hurricane Irma .

Despite the situation, she testified that East Coast was the only

rehabilitation center open and taking c alls to pick up injured

animals. She testified that she l ogged animals manually using

paper forms , but on the date of Respondent ' s inspection, the

paper forms were in the possession of Ms. Bloom , who was

transferring the forms to Petitioner ' s electronic records system

at home where there was power. However, Petitioner was unable to

produce the paper f orms at the time of Investigator Wilkenson ' s

insp ection or at any time thereafter.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. See § 120.569 and 120.57(1), Fla.

Stat. (2018). Respondent is the agency with exclusive

jurisdiction to regulat e all wild animal life in Florida.

See Art. IV, § 9, Fla. Const. All wild animal life includes

captive wildlife. See Miramar v. Bain , 429 So. 2d 40 (Fla. 4th

DCA 1983).

23. Florida Admini strative Code Rule 68 - 1.010(2)( a )

requires that Respondent deny an application for a license if the

" [ a ] pplicant has received an adjudication other than acquittal or

dismissal of any provision of Chapter 379, F.S., or rules of the

Commission, " when the factors enumerated in subsection (5 )

warrant denial. Because Petitioner pled no contest and had

adjudication withheld on seven captive wildlife violations , these

factors must be considered.

24 . Subsection (5) of rule 68 - 1.010 requires that

Respondent consider the following factors when determining

whether to deny renewal of any license or permit:

(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 , Fla. Stat., 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 livelihoo d;

(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 appli cant,

licensee or permittee in another

jurisdiction;

(h) The deterrent effect of denial,

suspension, revocation or 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.

25. An applicant has the ultimate burden of persuasion to

prove entitlement to a license regardless of which party bears

the burden of presenting certain evidence . See Dep ' t of Banking

& Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996) .

Respondent has the burden of proving by a preponderance of the

evidence that the applicant violated certain statutes and rules

and is thus unfit for licensure. See Dep ' t of Child . & Fams . v.

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

26. Respondent proved that in addition to the violation

outlined in Stipulated Fact No. 1, Petitioner also violated

section 379.3762(1) by keeping a red fox without the proper

license. The red fox was kept in a cage less than the minimal

size required, which is a violation of rule 68A - 6.0023(2).

See Finding of Fact No. 13; Resp . Ex . 4.

2 7 . Respondent proved that Petitioner ' s violations of the

law in 2015 were sever e. Petitioner ' s failure to follow the

captive wildlife laws could have had serious consequences for

public safety, her own safety, the welfare of the animals in her

care, and the welfare o f populations of Florida ' s native animals.

Petit ioner ' s actions were intentional and with knowledge that she

was violating the captive wildlife laws . She repeatedly did so

for as long as she could before getting caught.

28. Rule 68 - 1.010(2)(c) requires that Respondent deny an

application for a licens e if the applicant failed to comply with

the provisions of subsection (3) in any previously issued

license, when the factors enumerated in subsection (5) warrant

denial.

2 9 . Subsection (3) paragraph (a) of rule 68 - 1.010 requires

licensees to maintain complete and correct written records as

required by a license or permit issued by Respondent.

30 . Subsection (3) paragraph (e) of rule 68 - 1.010 requires

licensees to " [f]ully comply with Chapter 379, F.S., and the

rules of the Commission. "

3 1. Responde nt proved that Petitioner ' s violations of the

law in 2017 were severe. Petitioner had not entered

approximately 60 squirrels into her facility logs as required by

rule 68A - 9.006(4 )( b). Petitioner had not entered records of a

hawk into a daily log as requ ired by r ule 68A - 9.006(5 ) (e) .

See Resp . Ex . 7 . The two violations committed by Petitioner in

September 2017 were violations of laws necessary for ensuring

licensee/permittee accountability. These violations in 2017 ,

along with Petitioner ' s history of seven prior captive wildlife

convictions and two warnings , showed her continued disregard of

the captive wildlife laws .

32. In the years since Petitioner opened the East Coast

facility , she has by her actions and words shown a disregard for

the captive wildlife laws. In fact , she views the m a s an

impediment to her ability to care for the animals. Based on the

facts established in the final hearing, the length of time

Petitioner has been li censed and the alleged effect on her

livelihood are not compelling as mitigating factor s.

33. Petitioner established that she provided a benefit to

the community by accepting animals in need of rehabilitation and

by providing educational programs to children at an autistic

s chool using animals in her care. However, this benefit does not

overcome the severity and ongoing nature of Petitioner ' s

disregard for the captive wildlife laws .

34. Petitioner testified that in September 2017, there was

power l oss and damage at East Coast caused by Hurricane Irma.

S he testified that animals were logged manually using paper

forms . However, on the date of Respondent ' s inspection , the

paper fo rms were not on - site , were not produced during the

inspection , and have not been produced at any time thereafter .

35. Respondent proved by a preponderance of the evidence

that the factors in r ule 68 - 1.010(5) warrant denial. Respondent

proved that Petitioner is unfit for licensure.

36. Petitioner did not carry her burden of ultimate

persuasion to show entitlement to renewal of her Wildlife

Rehabilitation Permit and License to Possess Class III Wildlife

for Exhibition or Public Sale .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it i s RECOMMENDED that Respondent enter a final order

denying Petitioner ' s applications for renewal of her Wildlife

Rehabilitation Permit and License to Possess Class III Wildlife

for Exhibition or Public Sale.

DONE AND ENTERED this 13th day of June, 2018 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

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 13th day of June, 2018 .

COPIES FURNISHED:

Christopher Block, Esquire

Block Law Firm, PLLC

Post Office Box 560618

Rockledge, Florida 32956

(eServed)

Sherrie Wentworth

2090 Halifax Drive

Port Orange, Florida 32128

Tracey Scott Hartman, Esquire

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Brandy Elaine Elliott, Esquire

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Eric Sutton, Exec utive Director

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Harold G. "Bud" Vielhauer, Gen eral Counsel

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

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 Final Order in this case.