20-004559 Taesoon Park vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Wednesday, February 10, 2021.

Summary: Agency proved one of the violations relied upon to deny Petitioner?s application for a Class III license. However, the violation does not support denial of the class III license.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T AESOON P ARK ,

Petitioner ,

vs. Case No. 20 - 4559

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Jodi - Ann V. Livingstone of the Division of Administrative Hearings

(DOAH), on December 7, 2020, by Zoom Conference.

A PPEARANCES

For Petitioner: Michael P. Hay mans, Esquire

Michael P. Haymans Attorney at Law, P.A.

215 West Olympia Avenue

Punta Gorda, Florida 33950

For Respondent: Rhonda E. Parnell, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Stre et

Tallahassee, Florida 32399 - 1600

S TATEMENT OF T HE I SSUE

Whether PetitionerÔs application for renewal of his l icense to p ossess c lass

III w ildlife for e xhibition or p ublic s ale (class III license) should be granted.

P RELIMINARY S TATEMENT

On Sep tember 18, 2020, the Florida Fish and Wildlife Conservation

Commission (Respondent or FWC) denied Taesoon Pa r kÔs (Petitioner)

application to renew his class III license, through the issuance of a Notice of

Denial (Notice) . The Notice provided the following as the factual basis for the

denial:

FWC received the first verified report of a tegu

near your facility on June 29, 2016. FWC has

received 220 reports since that time of verified

and/or credible non - native wildlife in the

immediate vicinity of the facili ty known as

Ñ Iguanaland, Ò of which you are the owner and

license holder. This total includes 176 non - native

tegus and 9 individuals of other non - native species,

including iguana and monitor species, that were

either captured b y FWC and the surrounding

comm unity members or were found dead on the

road.

These non - native species are not present in

significant numbers in any location in the

surrounding area apart from outside of your

facility. These escaped non - native species from your

facility have contribute d to the estab l ishment of a

breeding population of tegus which are detrimental

to the native wild animal life of the local area. FWC

staff have captured tegus in this area near your

facility in all age classes, including hatchlings, and

have necropsied a c aptured female tegu with

developed egg follicles, providing evidence that

breeding is occurring in this population.

On or about July 26, 2019, during an unannounced

inspection, the FWC inspector discussed the

presence of tegus and other non - native reptil es in

the area surrounding your facility. You accepted

responsibility for the escape of these species from

your facility and the likelihood your employees

caused these escapes to occur some years prior.

On or about September 2, 2020, you stated to FWC

l a w enforcement that two crocodile monitors

escaped from your facility in mid - August 2020,

likely through an opening in an enclosure where

the wire was not concreted in. On or about August

24, 2020, one crocodile monitor of several feet in

length was located on the adjoining property where

it caused injury to the property owner Ôs pets. A

biologist with FWC responded to the property,

identified the animal as a crocodile monitor, and

euthanized it. On or about September 2, 2020, you

were issued a notice to appe ar for a criminal

violation of rule 68A - 6.009, F.A.C.

Petitioner timely filed a Petition for Administrative Hearing and

Respondent transmitted the matter to DOAH on October 14, 2020 , for the

assignment of an administrative law judge to conduct the request ed hearing .

A Notice of Hearing by Zoom Conference and Order of Pre - hearing

Instructions were issued on October 22, 2020. The Order of Pre - hearing

Instructions required, among other thing s, that the parties prepare a pre -

hearing stipulation that shall dis close Ñ[a] list of the names and addresses of

all witnesses (except for impeachment witnesses) to be called at the hearing

by each party, with expert witnesses being so designated[.]Ò Prior to the

hearing, the parties submitted a Joint Pre - hearing Stipulat ion (Stipulation) ,

which included a list of three witnesses for Petitioner and three for

Respondent. The Stipulation did not identify any expert witnesses for either

party.

T he final hearing was convened on December 7, 2020, by Zoom

Conference . Petitione r testified on h is own behalf and presented the

testimony of Mark A. Mitchell, DVM, MS, PhD, DECZM (Dr. Mitchell), and

Sean Michael Perry, DVM (Dr. Perry) . Petitioner tender ed Dr. Perry as an

expert in reptile behavior and sexual behavior in reptilians. Re spondent

objected to PetitionerÔs tender of Dr. Perry as an expert witness, based on

PetitionerÔs failure to disclose him as such in any communication between the

parties. Respondent made t he same objection and argument regarding

Dr. Mitchell. The u ndersigned sustained the objection s . Dr. Perry and

Dr. Mitchell were allowed to testify as lay witnesses, but were not accepted as

experts. Petitioner did not offer any exhibits .

Respondent called Robert OÔHoro, an FWC investigator; Daniel Quinn, an

FWC biologist; and John Conlin, an FWC lieutenant , as witnesses.

Respondent Ô s Exhibits 1 through 9 were admitted into evidence.

At the close of the hearing, the parties requested a n extended deadline of

30 days following DOAH Ô s receipt of the hearing t ranscript to file post -

hearing submittals. 1 A one - volume Transcript of the final hearing was filed

with DOAH on December 1 4 , 2020. Respondent timely submitted a Proposed

Recommended Order . PetitionerÔs Proposed Recommended Order was two

days late. Both sub mittals were duly considered in preparing this

Recommended Order.

All references to the Florida Statutes and the Florida Adm inistrative Code

are to the 2020 versions .

F INDINGS OF F ACT

1. Respondent is a state agency authorized to exercise the executive a nd

regulatory powers of the s tate of Florida with respect to wild animal life and

fresh water aquatic life. See Fla. Const. Art . IV, § 9 .

1 By agreeing to an extended deadline for post - hearing submissions beyond ten days after the

filing of the transcript, the parties waived the 30 - day timeframe for issuance of the

Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

2. Petitioner holds a class III license which authorizes him to possess class

III wildlife for exhibition or sale. 2

3. Petitioner is the owner and license holder authorized to maintain a

facility called Iguanaland, located in Punta Gorda, Florida.

4. Iguanaland is a reptile facility that has as its goal the preservation of

certain species and the conservation of enda ngered species.

5. Petitioner is a respected member of a community of individuals who

keep , and make serious efforts to breed , reptiles in captivity. He is widely

known for holding one of the largest collection of reptiles in the United

States. PetitionerÔ s facility has been successful with reproducing reptile

species, adding to the diversity within the captive reptile population.

6. Petitioner partakes in cooperative trading with zoological institutions.

He helps to facilitate research on hard - to - come - by reptilians. His facility

greatly contributes to the preservation of endangered reptile species. It is the

only facility in the United States that has the capacity to successfully breed

reptilians on a large scale.

7. Petitioner maintains temporary living quarters on the facilityÔs g rounds

to host graduate students conducting research.

8. Petitioner has never been disciplined by Respondent; he has not

received a written or verbal warning. RespondentÔs witness , Investigator

OÔHoro, testified that , Ñanything thatÔs still caged [at PetitionerÔs facility] is

being taken care of Ò and that he has been Ñ impressed with the husbandry [ 3 ]

aspect.Ò

9. Petitioner maintains several species of reptilians at Iguanaland,

including lizards, snakes, and chelonians.

2 Class I w ildlife is wildlife which, because of its nature, h abits, or status, shall not be

possessed as a personal pet; c lass II wildlife is wildlife considered to present a real or

potential threat to human safety; class III wildlife is all other wildlife not included in Class I

or Class II. See § 379.3762(2), Fla . Stat.

3 ÑHusbandryÒ generally refers to the care, food, and shelter that is provided to the reptilians.

10. Monito r lizard s include a wide class of lizard species. Monitor lizard s ,

in general , are primarily carnivores , eating mostly animal matter. They are

typically between one and nine feet long.

11. In July 2020, Petitioner had possession of three crocodile monitor

lizards . Crocodile monitor lizards are an uncommon type of monito r lizard .

T hey are known for having extremely long tails relative to their body length

and uniquely shaped heads .

12. Petitioner commissioned a construction worker to build an enclosure

for the crocodile monitor lizard s, in accordance with FWC requirements. This

included a request to fortify the bottom of the crocodile monitor lizard sÔ wired

enclosure with cement. Unfortunately, the construction worker failed to

cement a space of approximate ly one foot along the barrier of the enclosure.

13. Petitioner testified that he inspected the enclosure several times, and

failed to notice the gap. Investigator OÔHoro also inspected the enclosure and

did not notice the gap.

14. In August 2020, two of PetitionerÔs three crocodile monitor lizard s

escaped from Iguanaland, through the opening in the enclosure.

15. One of the two escaped crocodile monitor lizard s injured two pet dogs

at a neighboring property. The crocodile monitor lizard was euthanized to

prevent further issue.

16. For the period of June 2016 through November 2020, FWC staff

members received reports of sightings of over 100 non - native tegus and other

reptilians within a half - mile radius of PetitionerÔs facility.

17. Although Respondent p roved that non - native tegus and other

reptilians were spotted and captured in the vicinity surrounding Iguanaland,

it offered no competent, substantial evidence that the large population of

tegus and other reptilians in the area surrounding PetitionerÔs fa cility w as

caused by Petitioner.

C ONCLUSIONS OF L AW

18 . DOAH has jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569 and 120.57(1), Florida Statutes.

19. Respondent denied the renewal of PetitionerÔs class III license for

several alleged violations of FWC rules. The denial is tantamount to revoking

the license. The parties properly stipulated that Respondent bears the

burden of proving the violation s by clear and convincing evidence. See Ferris

v. Turlington , 5 10 So. 2d 292, 295 (Fla. 1987) (establishing clear and

convincing evidence standard for license revocation proceedings); Dubin v.

DepÔt of Bus. Reg. , 262 So. 2d 273, 274 (Fla. 1st DCA 1972) (Ñrefusal to renew

a license to a person who has once demonstrated that he possesses the

statutory prerequisites to licensure cannot be used as a substitute for a

license revocation proceeding . Ò).

20. The clear and convincing standard of proof has been described by the

Florida Supreme Court as follows:

Clear and convi ncing evidence requires that

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

confusion 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomo witz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson , 913 So. 2d

579, 590 (Fla. 2005).

21 . Respondent is the state agency with exclusive jurisdiction to regulate

wild animal life and fresh water aquatic life , including the posses sion of

reptilians. See Fla. Const. Art . IV, § 9 .

22. Florida Administrative Code Rule 68A - 6.009(1) provides that Ñ[ n ] o

person shall maintain captive wildlife in any unsafe or unsanitary condition,

or in a manner which results in threats to the public safety, or the

maltreatment or neglect of such wildlife. Ò

23. Any condition which results in wildlife escaping from its enclosure is a

violation of rule 68A - 6.009(1) . See Fla. Admin. Code R. 68A - 6.018(1).

Petitioner admits that two crocodile monitor lizard s escaped from his facility

in August 2020. The condition which resulted in the escape of these crocodile

monitor lizard s is a violation of rule 68A - 6.009 (1) .

24 . FWCÔs Notice of Denial sets forth the following ultimate findings of

fact:

The conditions wh ich have resulted in the escape of

non - native species of tegus, iguanas, and other

reptiles from your facility, including the escape of

two crocodile monitors in mid - August 2020,

constitute a violation of subsection 68A - 6.009(1),

F.A.C. Violations of subse ction 68A - 6.009(1),

F.A.C., relate to the possession of captive wildlife.

In addition, your knowledge of the escaped non -

native species from your facility and your failure to

take action to mitigate the danger to l ocal wildlife

and to the public suggests t hat issuance of the

[class III license] wil l result in the continued

endangerment of the health, safety or welfare of

wild animal life and the public.

25. Respondent proved, by clear and convincing evidence, that two

crocodile monitor lizard s escaped fro m PetitionerÔs facility as a result of the

condition of the enclosure , which is a violation of rule 68A - 6.009(1).

26. Respondent, however, did not prove that conditions at Petitioner Ôs

facility allowed the escape of tegus, iguanas, or any reptilian beside s the two

crocodile monitor lizards .

27. Respondent did not offer argument in its Proposed Recommended

Order that Petitioner had knowledge of the escaped non - native species from

his facility or that he failed to act to mitigate the danger to local wildlif e and

to the public . Further, Respondent does not argue that renewing PetitionerÔs

class III license will result in the continued endangerment of the health,

safety , or welfare of wild animal life or the public. Moreover , Respondent did

not prove these thi ngs by clear and convincing evidence .

28. Florida Administrative Code Rule 68 - 1.010(2) sets forth grounds for

revoking or denying the renewal of class III licenses and provides, in

pertinent part:

(2) The Commission shall revoke or deny the

renewal of any license , permit or other

authorization based on any one or more of the

following grounds:

(a) The licensee, permittee or other holder of

authorization has received a disposition other than

acquittal or dismissal of any provision of chapters

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

other similar laws or rules in this or any

jurisdiction that relate to the subject matter of the

license, permit or authorization.

(b) The licensee, permittee or other holder of

authorization failed at any time t o comply with

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

Commission or other laws or rules relating to the

subject matter of the license, permit, or other

authorization.

(c) The licensee, permittee or other holder of

authorization has submitted materially false

information in any previously submitted or pending

application or supporting documentation relating to

the application, or documentation or reports

required by the license, permit or authorization.

(d) The licensee, permittee or other ho lder of

authorization is conducting activities under the

license, permit or authorization in a manner that

endangers the health, safety or welfare of the

public, wild animal life, fresh water aquatic life or

marine life. (emphasis added).

29. Rule 68 - 1.01 0(2) clearly provides that FWC shall deny the renewal of

licenses of licensees who failed to comply with FWC rules. Rule 68 - 1.010(3),

however, allows FWC to deviate from the mandatory denial upon

consideration of mitigating and aggravating factors which ar e set forth as

follows:

(a) The severity of the applicant, licensee, or

permittee Ô s conduct;

(b) The danger to the public created or occasioned

by the conduct;

(c) The existence of prior violations of chapters 369,

379 or 828, F.S., rules of the Commis sion 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 correct 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 public safety a nd welfare or

the management and protection of natural

resources for which the Commission is responsible.

30. Under the facts found herein, the penalty to be imposed on Petitioner

is mitigated by the factors set forth in rule 68 - 1.010(3) .

Severity of Con duct and Danger to the Public

31. The escape of the crocodile monitor lizard s was not due to flippant

negligence by Petitioner. Instead, an oversight by a construction worker left

an unintentional, small gap through which the monitor lizard s escaped.

Petit ioner credibly testified that he inspected the enclosure on several

occasions, but did not notice the small opening. FWC I nvestigator OÔHoro also

inspected the enclosure and failed to notice the opening , confirming that

PetitionerÔs failure to detect the s mall opening was understandable and

excusable . Although the escape of the monitor lizard led to two dogs being

harmed, the conduct that led to the escape was not severe.

Prior Violations /Related Violations in Other Jurisdictions

32. Petitioner has no prior violations. He has never been disciplined by

FWC for anything outside of the allegations set forth in this case and has not

received so much as a prior verbal warning from FWC. There is nothing in

the record to indicate that Petitioner committed any viola tions in other

jurisdictions.

Attempts to Correct/Prevent Violations

33. It is not clear from the record that Petitioner immediately addressed

the opening that caused the crocodile monitor lizard s to escape, but

Petitioner has, historically, addressed eve ry concern brought to him by FWC.

Investigator OÔHoro testified that in 2019, he noticed a bit of rust at the base

of a monitorÔs cage. He brought it to PetitionerÔs attention, who immediately

had it addressed. On another occasion, Investigator OÔHoro told Petitioner

that he believed the glass on an enclosure was too thin. Similarly, Petitioner

addressed this concern by choosing not to utilize that cage.

Other Factors

34. Petitioner is a n important member of the reptile conservation

community . PetitionerÔs facility is essential to the conservation and

preservation of endangered reptile species. PetitionerÔs conservation efforts

are widely known and respected. Petitioner provides opportunities for

students and veterinarians to conduct research on rare, endan gered species

of reptiles. Petitioner convincingly showed that he is an asset to the

community.

Conclusion

35. Consideration of the mitigating and aggravating factors above weigh

in favor of granting PetitionerÔs renewal application.

R ECOMMENDATION

Base d on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Fish and Wildlife Conservation Commission

enter a final order approving PetitionerÔs renewal application, subject to such

reasonable terms and conditions as FWC deems appropriate .

D ONE A ND E NTERED this 10th day of February , 2021, in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 10th day of February , 2021 .

C OPIES F URNISHED :

Michael P. Haymans, Esquire Rhonda E. Parnell, Esquire

Michael P. Haymans Attorney at Law, P.A. Florida Fish and Wildlife Conservation

215 West Olympia Avenue Commission

Punta Gorda, Florida 33950 620 South Meridian Street

T allahassee, Florida 32399 - 1600

Eric Sutton, Executive Director Emily Norton, General Counsel

Florida Fish and Wildlife Conservation Florida Fish and Wildlife Conservation

Commission Commission

Farris Bryant Building Farris Bryant Building

620 South Meridian Street 620 South Meridian Street

Tallahassee, Florida 32399 - 1600 Tallahassee, Florida 32399 - 1600

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.