19-003505 James Jablon vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Friday, September 27, 2019.

Summary: Resp. established, by a preponderance of the evidence, that Pet. submitted materially false information in a previously-submitted application, & thus was justified in denying Pet.'s applications for a PPNC & ESC.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES JABLON,

Petitioner,

vs. Case No. 19 - 3505

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

On August 15, 20 19, Administrative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings

(Division), conducted a duly - noticed hearing in Tallahassee,

Florida, pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2018).

APPEARANCES

For Petitioner: James Jablon, pro se

15297 Highfield Road

Brooksville, Florida 34604

For Respondent: Joseph Yauger Whealdon, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

STATEMENT OF THE ISSUE

The issue to determine in this matter is whether Petitioner

James JablonÓs applications for a Personal Pet No Cost Permit

(PPNC) and Class III Exhibition and/or Sale License (ESC) should

be denied for the reason stated in Respondent Florida F ish and

Wildlife Conservation CommissionÓs (FWC) Notice of Denial, dated

May 24, 2019.

PRELIMINARY STATEMENT

On May 24, 2019, FWC issued a Notice of Denial to

Mr. Jablon, denying his applications for a PPNC and ESC. The

Notice of Denial stated that Ð[b]a sed on your prior submission of

materially false information, your applications have been

denied[,]Ñ and cited Florida Administrative Code R ule 68 - 1.010 as

the basis for this decision.

On May 29, 2019, Mr. Jablon filed an Election of Rights and

a Petition for Administrative Proceeding that disputed the Notice

of Denial and requested an administrative hearing. On June 28,

2019, FWC filed a Request for Assignment of Administrative Law

Judge and Notice of Preservation of Record with the Division.

Pursuant to a Notice of Hearing, the undersigned conducted a

final hearing on August 15, 2019, in Tallahassee, Florida. At

the hearing, Mr. Jablon testified on his own behalf, and the

undersigned admitted PetitionerÓs Exhibits P1 through P4 into

evidence. Respond ent presented the telephonic testimony of

Judith Watson, and the undersigned admitted RespondentÓs Exhibits

R1 and R2 into evidence. Additionally, the undersigned admitted

Joint Exhibit 1 into evidence.

The one - volume T ranscript of this final hearing was filed on

September 3, 2019. Both parties timely filed proposed

recommended orders that the undersigned considered in the

preparation of this Recommended Order.

All references are to the 2018 codification of the Florida

Statutes unless otherwise indicated.

FINDING S OF FACT

1. Mr. Jablon testified that he previously owned a male

lion named Ed, and possessed the appropriate Class I Wildlife

License. Ed then went to live at a nother wild l i fe facility near

Gainesville.

2. Mr. Jablon testified that in July 201 5, Judith Watson,

who owned a wildlife sanctuary near Spring Hill, Florida,

contacted him and asked him to live in a guest house at her

wildlife sanctuary and inquired whether he could relocate Ed to

her wildlife sanctuary.

3. Mr. Jablon stated that Ms. W atson had a female lion

named Savannah, and it was his opinion that lions should live in

a Ðgroup systemÑ and not alone. Mr. Jablon testified that he

then took steps to reacquire Ed from the Gainesville facility.

4. On October 19, 2015, Mr. Jablon applie d for a Class I

and/or Class II Wildlife for Exhibition or Public Sale (ESA), in

the name of Wildlife Rehabilitation of Hernando, in which he

sought a license to possess, inter alia , a lion. The State of

Florida classifies lions (panthera leo) as Class I wildlife. See

Fla. Admin. Code R. 68A - 6.002(1)(a)12.

5. Among the numerous requirements for an ESA are

requirements for the facilities for the housing of Class I

wildlife, Ð[i]n order to assure public safety.Ñ Fla. Admin. Code

R. 68A - 6.003(2). For exam ple, Florida Administrative Code Rule

68A - 6.003(2)(c)1 . requires:

1. Property ownership/lease:

a. The facility shall be constructed on

property owned or leased by the applicant.

If leased [,] the lease shall be for a term of

not less than one (1) year f rom date of

application. Such lease shall be subject to

initial and annual review and approval by the

commission as a condition of said lease.

b. If the property is leased, the lessee

must have exclusive rights to occupy, possess

and use the property wi th no restrictions

that could prevent the lessee from adhering

to the eligibility requirements for licensure

with no other in holdings or easements.

c. The existence of any such lease

restrictions or termination of the lease

shall result in the denial or revocation of

the license or permit.

6. As part of his ESA application materials, Mr. Jablon

provided a ÐResidential Lease Agreement,Ñ dated July 31, 2015,

between Ms. Watson and ÐJames Jablon/WROH,Ñ that generally stated

that Ms. Watson agreed to rent to Mr. Jablon (and Wildlife

Rehabilitation of Hernando) real property in Spring Hill,

Florida, for a term of almost three months.

7. The Residential Lease Agreement contains the signatures

of Mr. Jablon, and purportedly, Ms. Watson.

8. Thereafter, Mr. Ja blon submitted to FWC a ÐLicense

renewal correction update,Ñ dated November 16, 2015, in which he

provided a ÐcorrectionÑ to the lease term to show that it was for

three years, and not almost three months. This ÐcorrectionÑ

contains the initials of Mr. Ja blon, and purportedly, Ms. Watson.

9. At the final hearing, Mr. Jablon admitted that the

signatures of Ms. Watson on the Residential Lease Agreement and

the initials on the ÐLicense renewal correction updateÑ were not

th ose of Ms. Watson, but his.

10. Mr. Jablon testified that he signed Ms. WatsonÓs

signature and initials to these documents with Ms. WatsonÓs

permission. Mr. Jablon further testified:

We werenÓt really concerned about the

legality of the lease, because neither one of

us had any intention of enforcing the lease.

I wasnÓt technically a tenant there leasing

the property. I was over there to help her

run that facility and work with her. So if

you look at the lease, thereÓs really

nothing Ï itÓs basically the way it came in the

package. . . . So, I mean, we didnÓt Ï we

didnÓt care about the lease.

11. Ms. Watson testified that she never asked Mr. Jablon to

create a lease for the Spring Hill property, never gave him

permission to sign her name on a lease, and never gave him

permission to sign a ÐLicense renewal correction update.Ñ

12. Ms. Watson, who testified that she was familiar with

the requirements for an ESA for Class I w i l dlife, also testified,

consistently with Mr. Jablon, that the two had discussed moving

Ed to her property to live wi th Savannah.

13. The undersigned does not find Ms. WatsonÓs testimony

credible concerning the creation of a lease for the Spring Hill

property. As an owner of a lion, who testified that she was

familiar with the requirements for an ESA for Class I w ildli fe,

Ms. Watson knew of r ule 68A - 6.003(2)(c)1 . Ós requirement that an

ESA permittee must own or lease the property upon which the

wildlife would reside. By asking Mr. Jablon to move Ed to her

property to live with Savannah, the undersigned finds that

Ms. W atson would have known of this requirement that Mr. Jablon

either own or lease the property where Ed would live. As

Mr. Jablon did not own Ms. WatsonÓs Spring Hill property, the

undersigned finds that Ms. Watson would have known that

Mr. Jablon would ne ed to lease the Spring Hill property to

legally possess an ESA and locate Ed on the Spring Hill property.

14. However, the undersigned also finds, based on his own

testimony, that Mr. Jablon falsified Ms. WatsonÓs signature on

the lease, as well as her in itials on the ÐLicense renewal

correction update,Ñ which he submitted to FWC as part of his ESA

application . His explanation for doing so -- that neither he nor

Ms. Watson intended to enforce the lease and renewal documents --

further indicates to the undersi gned that Mr. Jablon intended to

submit materially false documents to FWC in the ESA application

process.

15. On February 19, 2019, FWC received Mr. JablonÓs

application for a PPNC and ESC.

16. In its May 24, 2019 , Notice of Denial, FWC stated:

On May 12 , 2016, Ms. Watson provided a sworn

statement to Investigator Chad Paul stating

that the lease [submitted with the

October 19, 2015 , application for ESA] was a

falsification. In comparing signatures from

Ms. Watson over the years to the lease you

submitt ed, FWC confirmed the signature did

not belong to Ms. Watson.

17. The Notice of Denial further states, Ð[b]ased on your

prior submission of materially false information, your

applications [for a PPNC and ESC] have been denied.Ñ

18. The undersigned finds that competent, substantial

evidence supports FWCÓs determination that Mr. Jablon submitted

materially false information when he applied for an ESA in 2015.

CONCLUSIONS OF LAW

19. The Division has jurisdiction of the subject matter of

this proceeding and of the parties, pursuant to sections 120.569

and 120.57, Florida Statutes.

20. FWC is the agency with exclusive jurisdiction to

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

Const. All persons who possess captive wildlife for the pur pose

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

See § 379.3761(1), Fla. Stat.

21. As the applicant for the PPNC and ESC, Mr. Jablon bears

the burden of proving entitlement by a preponderance of the

evidence. See Fla. DepÓt of Child. & Fams. v. Davis Family Day

Care Home , 160 So. 3d 854, 856 (Fla. 2015); DepÓt of Banking &

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

22. FWC has the burden of proving, by a preponderance of

the evidence, that Mr. Jablon violated certai n statutes and

rules, and is thus unfit for the PPNC and ESC. See Davis Family

Day Care Home , 160 So. 3d at 856.

23. Rule 68 - 1.010(1), which applies to all licenses,

permits or other authorizations that FWC issues, states:

(1) The Commission shall deny applications

for any license, permit or other

authorization based upon any one or more of

the following grounds:

(a) Submission by the applicant of false,

misleading, or inaccurate information in the

application or in any supporting

documentation provide d by the applicant or on

behalf of the applicant relating to the

license, permit, or other authorization, or

omission of any information which has a

false, misleading or inaccurate effect.

* * *

(f) Submission by the applicant of

materially false inform ation in any

previously submitted or pending application

or supporting documentation relating to the

application.

24. The undersigned concludes that FWC has proved, by a

preponderance of the evidence, that Mr. JablonÓs falsification of

Ms. WatsonÓs signat ure on the Residential Lease Agreement and the

initials on the ÐLicense renewal correction update,Ñ which

Mr. Jablon submitted in support of his 2015 ESA application,

constituted the submission of materially false information.

25. Rule 68 - 1.010(3) states that FWC may deviate from

rule 68 - 1.010(1), and shall consider as aggravating and

mitigating factors:

(a) The severity of the applicant, licensee,

or permitteeÓs conduct;

(b) The danger to the public created or

occasioned by the conduct;

(c) The exi stence of prior violations of

chapters 369, 379, or 828, F.S., rules of the

Commission or other laws or rules relating to

the subject matter of the license, permit, or

other authorization sought;

(d) Attempts by the applicant, licensee or

permittee to co rrect or prevent violations,

or the refusal or failure of the applicant,

licensee or permittee to take reasonable

measures to correct or prevent violations;

(e) Related violations by the applicant,

licensee or permittee in another

jurisdiction;

(f) Any other mitigating or aggravating

factors that reasonably relate to the public

safety and welfare or the management and

protection of natural resources for which the

Commission is responsible.

26. The undersigned concludes that none of the mitigating

or a ggravating factors contained in r ule 68 - 1.010(3) apply to

Mr. Jablon. The falsification of Ms. WatsonÓs signature and

initials as part of his ESA application, which Mr. Jablon

submitted to the FWC, constitutes severe conduct in a necessarily

highly regul ated field. The danger in doing so is high, as

Mr. Jablon sought the ESA to move a lion to property in which he

had no valid claim to ownership or lease. FWC presented no

evidence that Mr. Jablon had previously violated applicable

statutes or rules. Ne ither party presented evidence of any

attempts that Mr. Jablon made to correct or prevent violations,

such as a retraction and resubmission of the Residential Lease

Agreement with valid signatures.

27. The undersigned further concludes that the FWCÓs

ac tions are warranted because the granting of Mr. JablonÓs

applications for the PPNC and ESC would validate an applicantÓs

decision to submit false documents when seeking a license or

permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclus ions of

Law, the undersigned RECOMMENDS that the Florida Fish and

Wildlife Conservation Commission issue a final order denying

Mr. JablonÓs PPNC and ESC applications.

DONE AND ENTERED this 27th day of September, 2019 , in

Tallahassee, Leon County, Florida .

S

ROBERT J. TELFER III

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 27th day of September, 2019 .

COPIES FURNISHED:

James Jablon

15297 Highfield Road

Brooksville, Florida 34604

Joseph Yauger Whealdon, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Eric Sutton, Executive Director

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Harold G. ÐBud Ñ Vielhauer, General 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 s ubmit 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.