18-001654 Florida Fish And Wildlife Conservation Commission vs. Norman Eric Johns Status: Closed Recommended Order on Friday, August 3, 2018.

Summary: FWC failed to prove by clear and convincing evidence that Respondent committed record-keeping violations for alligator eggs and hatchlings or that any alleged violations warrant license and permit revocations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Petitioner,

vs. Case No. 18 - 1654

NORMAN ERIC JOHNS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursu ant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by video

teleconference with locations in Port St. Lucie and Tallahassee,

Florida, on May 18, 2018.

APPEARANCES

For Petitioner: Brandy Elaine Ellio tt, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

For Respondent: Steven J. Polhemus, Esquire

St even J. Polhemus, P.A.

Post Office Box 2188

LaBelle, Florida 33975

STATEMENT OF THE ISSUE

Whether Respondent's licenses and permits issued by

Petitioner should be revoked for the reasons set forth in the

Notice of Revoca tion issued February 5, 2018.

PRELIMINARY STATEMENT

Respondent, Norman Eric Johns, at all times material hereto,

was the licensed operator of Flas hy Gator Farm ("Flashy Gator")

located in Moore Haven, Florida. On August 9, 2017, Petitioner,

Florida Fish a nd Wildlife Conservation Commission ("FWC") ,

conducted an inspection of Flashy Gator an d determined a number

of record keeping violations occurred with regard to alligator

eggs and hatchlings. As a result, on February 5, 2018, FWC

issued a Notice of Revoca tion ("NOR") to Respondent seeking to

revoke all licenses and permits issued by FWC, including, but not

limited to his: alligator farm license; alligator farming

permit; saltwater fishing license; hunting license; freshwater

fishing license; lobster permi t; and waterfowl permit.

Respondent timely filed a Petiti on for a Formal

Administrative P roceeding which was referred to the Division of

Administrative Hearings ("DOAH") on March 29, 2018. The final

hearing was conducted as scheduled by video teleconferen ce o n

May 18, 2018.

FWC presented t he testimony of three witnesses:

Dwayne Carbonneau, FWC's alligator management program

coordinator; Jesse Alford, captive wildlife investigator; and

Kyle Patterson, investigator of boating homicides and

commercialization of fish and wildlife. FWC's Exhibits 1

through 6 were admitted without objection.

Respondent presented the testimony of Alvin Ward, the

property owner of Flashy Gator and its manager. Respondent's

Exhibits 1 through 6 were admitted without object ion.

A two - volume Transcript of the final hearing was filed on

June 11, 2018, and the parties timely filed proposed recommended

orders that have been considered in the drafting of the

Recommended Order. Except as otherwise indicated, citations to

Flo rida Statutes or rules of the Florida Administrative Code

refer to the versions in effect at the time of the alleged

violations.

FINDING S OF FACT

The Parties

1. FWC is the agency with exclusive jurisdiction to

regulate all wild animal life, including captive wildlife, in

Florida. As such, it issues licenses and permits related to a

variety of wildlife, including for alligator farms and farmers.

As part of its duties, FWC regularly inspects alligator farms to

ensure compliance with applicable rules a nd regulations.

2. On June 1, 2017, Respondent was issued an alligator farm

permit authorizing him to operate Flashy Gator on the premises of

Alvin Ward. Prior to that time, F lashy Gator was operated by

Mr. Ward's son. Mr. Ward's son lost his licen se af ter pleading

guilty to a second - degree misdemeanor unrelated to his operation

of Flashy Gator. Respondent bought the alligator stock , and

Mr. Ward leased the premises to Respondent. In order to salvage

the business, Mr. Ward agreed also to manage th e daily operations

of Flashy Gator for Respondent.

3. Flashy Gator is a five - acre parcel located on Mr. Ward's

100 - acre property. It is comprised of several brood ponds for

alligators six feet in length or greater and an extensive canal

system, an i ncubator room for the eggs, an adjacent temperature -

controlled trailer, and a grow - out house with tanks for

alligators less than six feet in length.

4. Respondent was previously issued a variety of licenses

and permits by Petitioner, including those for saltwater fishing,

hunting, freshwater fishing, lobster collection, and waterfowl

hunting.

The Investigation

5. On August 9, 2017, Investigator Jesse Alford,

Investigator Kyle Patterso n, and Lieutenant George Wilson arrived

at Flashy Gator to con duct an unannounced inspection. Upon

finding no one present, they contacted Mr. Ward by telephone.

Mr. Ward advised that he was on another farm, Dove Hill,

collecting alligator e ggs with a biologist and they would return

to Flashy Gator after concluding the collection.

6. At the time of the inspection of Flashy Gator,

Investigator Alford was attending his first alligato r farm

inspection, and Investigator Patterson was attending his tenth

inspection. The farm had been inspected each of its prior fiv e

years without issuance of any citations.

7. When alligator eggs are collected, they are carefully

placed in a single layer in a crate and covered with sphagnum

moss, with special care given to not twist the position of the

eggs or turn them over, a nd to maintaining the temperature and

moisture of the eggs' natural environment. Unhatched alligators

are extremely delicate. Failure to maintain the position,

moisture, and temperature of the eggs leads to the death of the

unhatched alligator.

8. Mr. Ward returned to Flashy Gator with 189 eggs from the

collection at Dove Hill. When he arrived, Mr. Ward told FWC

representatives that they would also find five bins of eggs

sitting on the floor of the incubator room that were not yet in

inventory beca use they had been collected from nests on Flashy

Gator the night before and were stabilizing. There were 117 eggs

in these five bins.

9. Mr. Ward also advised that the previous night he found

the season's first hatchlings on the floor of the incubat or room

and had placed these 34 hatchlings in a baby po ol in the

adjacent, temperature - controlled trailer. It is not uncommon to

remove alligator babies from the nest because their cries can

cause other eggs to prematurely hatch. However, the hatchlings

are not immediately transferred to the grow - out house and tanks

because the hatchlings are too small for the tanks and could

drown.

10. Mr. Ward unlocked the incubator room and the trailer.

He placed the eggs he had just collected from Dove Hill on the

floor of the incubator room and then accompanied the

investigators as they inspected the premises.

11. After looking into several nest boxes stacked in the

incubator room and the hatchlings in the baby pool in the

trailer, Mr. Ward showed the inv estigators where he had dug the

five nests on the previous day. The investigators chose to only

inspect two of the former nest spots. The investigators walked

around the perimeter and down the middle of the ponds but did not

explore the canals. The pond s are surrounded by high grasses and

weeds. They spent approximately 15 to 30 minutes inspecting the

outside operation. The investi gators counted approximately

75 alligators in the breeding ponds.

12. The investigators asked Mr. Ward to show them h is

inventory records. Mr. Ward explained that instead of using

FWC's Form 1004AF, he used a white board and grease marker

sy stem, recommended by Commission Investigator Scott Van Buren,

to track eggs in, and eggs and al ligators out. According to

Mr. Ward , Flashy Gator used this system during multiple

inspections over the four years prior to the current inspection

without any problem.

13. More specifically, Mr. Ward explained that Investigator

Van Buren instructed the farm that they did not need to

i mmediately add eggs into the recorded inventory of the farm and

that they could be entered as soon as reasonably practicable, but

generally within 24 to 48 hours of harvest on the farm or being

brought into the farm from a private egg collection or purchas e

of eggs. Eggs harvested from the permittee's land do not need a

separate transfer document when harvested. Eggs harvested from

private lands (farms owned by others) require a transfer

document. Investigator Van Buren suggested the farm use a white

boa rd to maintain a running inventory total of eggs coming in and

from which farm, a subtraction for bad eggs, a subtraction from

eggs when hatchlings moved to the grow - out house, the total

number of breeding stock and rearing stock alligators on the

farm, an d a total number of hatchlings moved to the grow - out

house on the grow - out house door. Hatchling alligators needed a

transfer document when leaving the farm from the grow - out house.

14. According to Mr. Ward, he photographed the white board

daily to maintain running records of the inventory. He also

maintained a notebook indicating egg collections designating the

source of the eggs (Flashy Gator or one of five private lands

sources), the number of eggs in each bin, and the specific number

labeled on the Flashy Gator bin in which the eggs were placed in

the incubator room. Mr. Ward maintained this notebook for

quality control purposes to determine which private lands were

most productive. Mr. Ward also produced the transfer documents

accounting for all eggs harvested from private lands. All of

these records were made available at the inspection.

15. During the inspection, the investigators pulled several

crates of eggs to spot check that the number of eggs matched the

inventory. One of the bi ns was labeled on the outside as

containing 15 eggs. Mr. Ward's notebook inventory for the bin

showed 17 eggs. When counted, there were actually a total of 20

eggs.

16. On the date of the inspection, the inventory records of

Flashy Gator showed a t otal of 4 , 540 eggs, with 3,588 of those

coming from harvesting on Flashy Gator property. The white board

showed that 412 eggs came from the private lands of G arcia and

550 (which included ten bad eggs) came from Hilliard Brothers

private lands. Although the white board did not show the

individual dates of private lands collection, these dates are

located and maintained on the transfer documents.

17. Prior to leaving, Investigator Patterson told

Mr. Ward that FWC was "constructively seizing" the fiv e bins of

eggs that were not in inventory i n the incubator room and the

34 hatchlings. Because FWC does not have an incubator,

Investigator Patterson told Mr. Ward the eggs and hatchlings

would be left at Flashy Gator. Investigator Patterson sealed the

e gg bins with tape and told Mr. Ward that he could water the bins

as needed but, if the eggs started to hatch, they should not be

touched. Investigator Patterson told Mr. Ward he would contact

him the following day with further instructions. However, it w as

not until five weeks later that FWC notified Mr. Ward that the

bins and hatchlings were released back to Flashy Gator and they

could be unsealed. At that point, most of the eggs failed to

hatch , and the few hatchlings from the bins were all dead.

18. At the conclusion of the inspection, the investigators

told Mr. Ward to add a column to his white board going forward to

reflect any hatchlings put into the trailer next to the incubator

room. Mr. Ward followed this instruction ; however , no FWC

repre sentative returned to Flashy Gator after the inspection to

verify compliance.

Recordk eeping Requirements

19. Florida Administrative Code Rule 68A - 25.004(3)(a)

requires that alligator farm permittees:

shall maintain inventory records of the

number of alligator eggs and alligators in

each incubator, tank, pond, and enclosure.

The source and disposition of eggs and

alligators added to or removed from each

incubator, rearing tank, and breeding stock

enclosure shall be accurately recorded. Such

inventor y records shall be kept on the farm

on an Alligator Farm Inventory Record (FWC

Form 1004AF), effective June 30, 1992, which

is incorporated herein by reference and may

be obtained from the Commission) or in a

manner that is substantially in compliance

with the required record keeping.

Nearly identical language is contained in paragraph 7 of the

alligator farm permit issued to Flashy Gator.

20. Alligator farm permittees, therefore, have two options

when keeping their inventory records for an alligat or farm. As a

first option, they may use Form 1004AF, completing the

information required on that form. Alternatively, alligator

farmers may, pursuant to the rule requirements, choose not to use

Form 1004AF, but must, nevertheless, keep records that are

substantially in compliance with the rule's required

recordkeeping.

21. Form 1004AF contains spaces for alligator farms to

record the total number of eggs, rearing stock, and breeding

stock, in each incubator, pen, or pond. It also includes columns

to show the date, number, and source of any additions or

subtractions.

22. Importantly, there is nothing in the rules that specify

how soon after an egg is transferred from the farm or private

land it has to be entered into inventory. There is no ru le that

provides how soon after a move that the farm inventory must show

a transfer of a hatchling from incubator, to pen, or to pond.

23. When eggs are harvested from private lands, the process

is tightly controlled. The farmer notifies FWC by tele phone the

day of the harvest of the intent to harvest at a particular

location. The farmer is accompanied by a bio logist. The farmer

notifies FWC of the vehicles the fa r mer and biologist are driving

onto the private lands. Once the eggs are collected, t he count

is phoned into FWC. A dated transfer document, signed by both

the private land manager and the harvesting farmer, is generated ,

and a copy is sent to FWC.

24. Alligators are a threatened species for which there is

trade all over the world , and they are covered under the

Convention on International Trade of Endangered Species of Flora

and Fauna ( " CITES " ). The United States government is a signatory

to CITES, obligating them to review all alligator programs in the

United States, including the program in Florida, to ensure

no detriment is occurring to the alligator population because of

those programs.

25. Accurate inventory records are needed in Florida's

alligator farming program for accountability and to ensure

poaching is not occurri ng. Alligator eggs are easy to move and

worth a lot of money. Inventory records, in part, serve to

prevent alligator farm permit holders from stealing eggs from the

wild and bringing them into the alligator farm claiming they are

captively - bred eggs. If Florida's alligator farm program

resulted in the overharvesting of the alligator population or too

many eggs were being removed from the wild, that would be deemed

detrimental to Florida's alligator population, and could result

in the Federal government s hutting down Florida's alligator

farming program altogether.

The Alleged Violations

26. On February 5, 2018, as a result of the inspection, FWC

issued a NO R to Respondent alleging record keeping violations for

both alligator eggs and hatchings.

2 7. FWC alleges three areas of concern related t o records

for alligator eggs: (1) the records produced by Flashy Gator did

not have a date of the eggs entering inventory or "disposition"

of the eggs; (2) one bin counted was labeled as containing 15

eggs, t he records showed it contained 17 eggs, and the physical

count demonstrated 20 eggs in the bin; and (3) during the

inspection there were five bins on the floor of the incubation

room containing a total of 117 eggs not included in inventory.

28. Respo ndent was also cited for failing to have inventory

records of the 34 hatchlings in the baby pool in the trailer next

to the incubator room.

29. Although FWC investigators testified at the final

hearing that the total number of mature gators observed was

inconsistent with the count maintained by Flashy Gator,

Petitioner was not cited in the NOR for such a violation.

Similarly, FWC witnesses also testified that Flashy Gator's

egg - laying and hatch rates were unusually high for captive - bred

alligators a nd implied that this might be from poaching eggs from

the wild. However, there was no reference to this in the NOR.

Records of Eggs

30. FWC claims that Flashy Gator has no records of dates of

eggs entering inventory. It is true that the white board did not

show a particular date eggs harvested from Flashy Gator property

were entered into inventory. However, the daily photos of the

white board taken by Mr. Ward show the running total , and it is

simple math to determine on which dates inventory incre ased or

decreased for the farm - harvested eggs.

31. The testimony of FWC I nvestigators Alford and Patterson

conflicts regarding whether they reviewed the transfer documents

associated with harvesting from private lands. Investigator

Alford said the t ransfer records were not inspected.

Investigator Patterson testified that the transfer records were

reviewed and no discrepancy between the white board inventory and

transfer records was found. In any event, no evidence was

presented that Flashy Gator fa iled to maintain adequate records

of eggs harvested from private lands. These records certainly

reflect the date and time all private land collected eggs were

harvested and came into inventory.

32. FWC cited Respondent for not having "disposition"

i nformation recorded for the eggs. This ignores the fact that

the inspection occurred at the very beginning of the hatching

season. In fact, the first eggs hatched the night before the

inspection , and Mr. Ward advised the investigators they would

find the first 34 hatchlings in the baby pool in the trailer next

to the incubator building. This was corroborated by the

testimony of Investigator Patterson. No hatchlings had yet been

transferred to the grow - out house or tanks. Accordingly, at the

time of the inspection, there was no "disposit ion" to be

recorded. Mr. Ward testified that later in the season, the

hatchlings were sold before going into the grow - out house and

that the disposition of the hatchlings were properly documented

on transfer forms, inclu ding the date, and to whom, the

hatchlings were sold.

33. FWC cited Flashy Gator for a record keeping violation

because the physical count of eggs in one of three bins

spot - checked did not match the bin labeling or Mr. Ward's

notebook record. The in vestigators explained they did not do a

total count of eggs because it would be too disruptive and

potentially damaging to the eggs. They assumed this sampling

demonstrated that the white board count would necessarily be

inaccurate. However, there was no testimony that the total count

was off by this discrepancy. Further, this de minimus

discrepancy in one bin cannot be extrapolated to assume that the

entire daily white board counts were incorrect, particularly when

the other two bins inspected matched t he bin labeling and the

notebook records.

34. It is true that on the date of the inspection, there

were five bins of 117 eggs in the incubator not yet listed in

inventory. However the white bo ard had a "plus sign , " which

Mr. Ward explained showed th at there were eggs stabilizing before

going into inventory. Those eggs were harvested from Flashy

Gator the prior day and in the incubator less than 24 hours at

the time of the inspection. Mr. Ward explained this to the

investigators before they entered the incubator. He also showed

the investigators the nest sites from which these eggs were

harvested.

Records of Hatchlings

35. FWC contends that Respondent failed to document the

source or disposition of the 34 hatchling that were located in

the bab y pool in the trailer next to the incubator. According to

FWC, the trailer with the baby pool and hatchlings is the

equivalent of a grow - out house or "tank, pond, or enclosure."

36. Mr. Ward contends that the trailer is, in fact, part of

the incubat or and that the hatchlings were part of the egg count.

The trailer is not a "tank, pond, or enclosure." In support,

Mr. Ward explained that th e trailer is located less than eight

feet from the main incubator ho use, the trailer is temperature -

controlled l ike the incubator , and the baby pool is not part of

the grow - out facility of Flashy Gator. These hatchlings were

found and removed from the rest of the eggs to prevent the

premature hatching of other eggs. Again, these hatchlings had

only been in the tra iler for less than 24 hours.

CONCLUSIONS OF LAW

37. 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 (2018) .

38. FWC is the agency with exclusive ju risdiction to

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

Const. All wild animal life includes captive wildlife.

39. 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.

40. This case involves FWCÓs revocation of Respondent's

licenses and permit and potentially affects Resp ondent Ós

livelihood. As such, FWC has the burden of proving its

allegations with clear and convincing evidence. See Ferris v.

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

and convincing evidence standard for license revocation

proceedin gs).

41. "Clear and convincing evidence" means that the evidence

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

testify must be distinctly remembered, the testimony must be

precise and explicit, and the witnesses must be lacking in

co nfusion 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

belief 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).

42. FWCÓs specific allegations are contained in FWCÓs NOR,

dated February 5, 2018. This tribunal may consider only the

allegations in the NOR, as predicating disciplinary action

against a licensee on conduct neve r 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 only

the allegations in an administ rative 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. & ProfÓl Reg. , 625 So. 2d 1237

(Fla. 2d DCA 1993).

43. FWC failed to present clear and co nvincing evidence of

the record keeping violations alleged in the NOR. The white board

system, recommended by FWC Investigator Van Buren , showed the

total eggs collected on Flashy Gator, the source and total number

of eggs from private lands, the number of rearing stock and

breading stock, the number of bad eggs, and the number of

alligators transferred. Mr. Ward's notebook backed up the white

board with informa tion by bin regarding the source of eggs.

44. The only item from Form 1004AF missing from the white

board was the date. However, the daily photos of the board,

compared to the transfer documents (which contain the date) would

enable the investigator s to determine the date. Further, the

applicable rule does not specify that a date is required.

Accordingly, the system used by Flashy Gator was in "substantial

compliance" with the record keeping requirement of r ule 68A -

25.004(3)(a).

45. While it i s true that the inventory did not include the

117 eggs on the floor of the incubator room, these eggs were

harvested from Flashy Gator in the 24 hours preceding the

inspection. In the absence of any guidance in the regulation

regarding how soon eggs must be logged into inventory, it is

permissible to assume that a farmer will be given a "reasonable"

amount of time. Mr. Ward notified the investigators before they

entered the incubator that there were eggs on the floor waiting

to stabilize and be placed int o inventory. Mr. Ward also showed

the investigators where the nests were harvested on Flashy Gator

property. Accordingly, the five uncounted bins did not

constitute a violation.

46. As to the one bin in which the egg count differed from

Mr. Ward's notebook and the label on the outside of the bin, no

evidence was presented to show that the count was inaccurate on

the white board. Even if this one bin skewed the c ount by three

eggs, this record keeping violation is de minimus given the fact

that the t otal count of eggs on the day of the inspection was

over 4,000 eggs.

47. FWC's evidence at final hearing differed significantly

from the allegations in the NOR regarding the hatchlings.

Paragraph 14 of the NOR states, "When Commission personnel aske d

to inspect the hatchery, Alvin Ward informed them that there was

nothing inside the hatchery to inspect and that there were no

inventory records." This was directly co ntradicted by the

testimony of I nvestigator Patterson who stated that Mr. Ward

informe d them prior to opening the trailer that it contained

hatchlings.

48. Investigator Patterson also testified that transferring

of a hatchling should be documented as soon as it goes from an

incubator room into a rearing tank. There is no need to docu ment

from which bin or which clutch the h atchling came, according to

I nvestigator Patterson. The testimony was clear that no

hatchlings were in the rearing tanks/grow - out house. Rule 68A -

25.004(3)(a) does not define the terms incubator, tank, pond, or

en closure. Mr. Ward reasonably concluded that the im mediately

adjacent, temperature - controlled trailer was part of the

incubator, rather than the grow - out house which was approximately

75 to 100 feet away.

49. Florida Administrative Code Rule 68 - 1.010 (5) requires

FWC to consider the following factors when determining whether to

suspend, deny, or revoke 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 vio lations 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 permitteeÓ s 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) Relate d violations by an applicant,

licensee or permittee in another

jurisdiction;

(h) The deterrent effect of denial,

suspens ion, revocation or non - renewal;

(i) Any other mitigating or aggravating

factors that reasonably relate to public

safety and welf are or the management and

protection of natural resources for which the

Commission is responsible.

Severity of the Conduct

50. At most, FWC presented some evidence of a minor

deviation from the record keeping requirements of r ule 68A -

25.004(3)(a) bec ause the white board did not contain dates of

acquisition. Notably, all informatio n specifically required by

the r ule was maintained by Flashy Gator between the white board,

Mr. Ward's notebook, and the transfer documents. Although FWC's

witnesses sugges ted that Flashy Gator's collection rate for its

own eggs was unusually high and suggested that Flashy Gator may

be poaching eggs from the wild, no evidence of the same was

presented nor was this allegation contained in the NOR.

51. Flashy Gator's f ailure to immediately document the

movement of hatchlings, from the room with the eggs to the

trailer with the baby pool, is also a minor violation. The

trailer was more akin to the incubator than the grow - out house.

Respondent should not lose all his FW C licenses and permits based

on a matter of semantics.

Danger to the Public

52. FWC ex plained why adherence to record keeping

requirements protects captive wildlife populations. No evidence

was offered to suggest t hat Respondent's alleged record keepi ng

violations posed any risk to the public.

Prior Violations, Rel ated Violations in Another Juris diction

53. No evidence was presented that Respondent was cited for

any prior violations or any related violations in any other

jurisdiction. In fact , t he evidence showed that Flashy Gator

operated on the same lands (under a different license holder) for

the prior fo ur years, using the same record keeping system, and

passed annual inspections with no citations.

Length of Time Permitted

54. Respondent was permitted to operate Flashy Gator for

slightly more than a year at the time of the inspection.

Effect of Revocation on Livelihood

55. Neither party presented any evidence regarding the

effect of revocation of all FWC licenses and permits on

Resp ondent's livelihood.

Steps to Correct or Prevent Violations

56. The un contradicted testimony of Mr. Ward showed that

Flashy Gator followed the record keeping recommendation of FWC

I nvestigator Van Buren. The system was in place for the prior

four yea rs without citation. Mr. Ward changed the white board to

include the incubator trailer after the inspection as the

investigators suggested. This factor weighs heavily in favor of

Respondent.

Deterrent Effect of Revocation

57. FWC presented no evid ence of the potential deterrent

effect of revocation.

Other Mitigating or Aggravating Factors

58. The evidence shows that Mr. Ward documented the

acquisition and disposition of eggs, hatchlings, and alligators,

in the same manner for at least four years in accordance with the

system recommended by FWC I nvestigator Van Buren.

59. Mr. Ward immediately i mplemented the change to

record keeping as suggested by Investigator Patterson.

60. Despite FWC's professed concern for possible poaching

an d alligator safety, FWC never returned to Flashy Gator to

determine whether Respondent came into what FWC considered

compliance. FWC's delay in releasing the eggs which it

"constructively seized" resulted in increased hatchling mortality

and a financial l oss to Flashy Gator.

Conclusion

61. Upon careful consideration of the factors set forth in

rule 68 - 1.010(5), the undersigned concludes that FWC has not

proven by clear and convincing evidence that revocation of

RespondentÓs licenses and permits is w arranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Fish and Wildlife

Conservation Commission enter a final order adopting the Findings

of Fact and Conclusions of Law set fo rth in this Recommended

Order and dismiss the Notice of Revocation.

DONE AND ENTERED this 3 rd day of August , 2018 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings

T he 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 3rd day of August , 2018 .

COPIES FURNISHED:

Bra ndy Elaine Elliott, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Steven J. Polhemus, Esquire

Steven J. Polhemus, P.A.

Post Office Box 2188

LaBelle, Florida 33975

(eServed )

Eric Sutton, Executive Director

F lorida Fish and W ildlife

C onservation C ommi s sion

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Harold G. "Bud" Vielhauer, General Counsel

F lorida Fish and W ildlife

C on servation C ommission

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 Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.