21-000188 Phillip Robbins vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Monday, May 17, 2021.

Summary: Petitioner did not prove he met criteria to possess a Burmese python as a "public exhibitor" or as a provider of an "educational exhibit" under Fla. Admin. Code Rules 68-5.002(3) and (9) and 68-5.005(1).

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P HILLIP R OBBINS ,

Petitioner ,

vs. Case No. 21 - 0188

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondents .

/

R ECOMMENDED O RDER

Administrative Law Judge John D. C. Newton, II, of the Division of

Administrative Hearings (DOAH) conducted the final hearing in this matter

on March 23, 2021, by Zoom video conference.

A PPEARANCES

For Petitioner: Phillip A. Robbins , pro se

1146 Navajo Avenue

Lehigh Acres, Florida 33936

For Respondent: Rhonda E. Parnell, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Did Respondent, Florida Fish and Wildlife Conservation Commission

(Commission), correctly deny the application of Petitioner, Phillip Robbins,

for a Public Exhibition of Conditional and/or Prohibited Species Permit

( CSP )?

P RELIMINARY S TATEMENT

Mr. Robbins applied for a Conditional CSP that would authorize him to

possess and exhibit a Burmese p ython. Th e Commission's Amended Notice of

Denial stated that Mr. Robbins did not meet the criteria for a public

exhibitor, which is the only category of individuals or businesses permitted to

possess and exhibit conditional species, including a Burmese p ython , into

which Mr. Robbins might fit . Mr. Robbins contested the denial and requested

a formal administrative hearing. On January 19, 2 021, the Commission

referred the dispute to DOAH for conduct of the requested hearing. The

undersigned conducted the requested hearing on March 23, 2021.

Commission Exhibits 1 through 7 were admitted into evidence. The

Commission presented testimony from Investigator Robert O'Horo and

Kristin Sommers. Mr. Robbins' Exhibits 1 through 7 were admitted into

evidence. Mr. Robbins testi fied on his own behalf. A Post - Hearing Order

directed the parties to address certain issues and identified authorities the

parties should cite in their proposed recommended orders. The Transcript

was filed. The parties timely filed proposed recommended ord ers. They have

been considered in preparation of this Recommended Order.

F INDINGS OF F ACT

1. Article IV, Section 9 of the Florida Constitution creates the

Commission. It charges the Commission to "exercise the regulatory and

executive powers of the state with respect to wild animal life and fresh water

aquatic life, and È exercise regulatory and executive powers of the state with

respect to marine life, È ." Chapter 379, Florida Statutes (2020) , 1

implements the constitutional grant of authority. The Commi ssion adopted

Florida Administrative Code Chapters 68 - 1 and 68 - 5 to fulfill its

constitutional and statutory duties.

1 All citations to Florida Statutes are to the 2020 codification , unless noted otherwise.

2. Mr. Robbins operates a business that he calls Pan - Terra Exotics. He

owns a Burmese python and has for over 25 years. From 2012 through 2017,

Mr. Robbins sought and obtained the license required to possess the python,

License to Possess Class II Wildlife for Exhibition or Public Sale (ESC). He

also held and still holds a License to Possess Venomous Reptiles (VRC) that

is not involved in this dispute. Mr. Robbins developed a pattern of letting his

licenses lapse before applying to renew them.

3. Mr. Robbins' 2015 ESC expired October 3, 2016. Mr. Robbins applied to

renew it on October 11, 2016. The Commission issued the license

November 2, 2016.

4. Mr. Robbins' 2016 ESC expired October 3, 2017. Mr. Robbins applied to

renew it November 8, 2017. The Commission issued the license November 14,

2017. It expired October 3, 2018.

5. The ESCs which Mr. Robbins had held authorized him to possess his

Burmese python .

6. Mr. Robbins did not apply for, and consequently did not hold, an ESC

after October 3, 2018.

7. On March 11, 2020, Mr. Robbins applied for an ESC and VRC. The

Commission issued the VRC on June 12, 2020. It did not issue the ESC.

8. Mr. R obbins followed up on the ESC application with telephone calls

and emails.

9. By letter dated July 2, 2020, the Commission denied Mr. Robbins' ESC

application. In pertinent part, the Notice of Denial stated:

On July 1, 2020, FWC Executive Order 20 - 19 was

signed, effectively altering regulation of species

previously listed as Conditional Reptiles . EO 20 - 19

states in part :

The Florida Fish and Wildlife

Conservation Commission È hereby

establishes special regulations to take

effect July 1, 2020, in order to conform

with Laws of Florida that amends

Section 379.372, Florida Statutes. This

statute regulates certain high - risk

nonnative invasive reptiles in Florida,

particularly those listed as

Conditional, Prohibited, Venomous,

and Reptiles of Concern. These

regu lations are necessary due to

ecological, economic and human health

and safety concerns related to potential

impacts of nonnative reptiles in

Florida.

1) The regulations below apply to the

following species of reptile :

a. Burmese or Indian python (Python

molurus)

2) A person, party, firm, association, or

corporation may not keep, possess,

import into the state, sell, barter,

trade, or breed the above species except

for educational, research, or

eradication or control purposes.

Facilities that meet the requirements

for the possession of Prohibited species

as described in Rule 68 - 5.007, F.A.C.

may apply for an FWC

Conditional/Prohibited/Nonnative

Species Permit for these uses.

The Captive Wildlife Program is no longer issuing

authorizations for Conditional reptiles on the ESC

license and applicants may no longer apply for an

ESC license for the purpose of possessing

Conditional, Prohibited, or Reptiles of Concern. For

these reasons, your application is denied.

10. The letter went on to give instructions on how to apply online for a

CSP "under new regulations, È ." Mr. Robbins did not seek review of that

decision.

11. On July 14, 2020, Mr. Robbins applied for a CSP. He followed up on

his application. On August 5, 2020, he submitted another application , this

one typ ewritten . He also submitted a completed Critical Incident/Disaster

Plan form, a power point file on Burmese pythons, and an image of his

Facebook page along with it.

12. As part of the application review process, Commission Investigator

Robert O'Horo insp ected Mr. Robbins' facility, which was the garage at his

residence. There were no exterior signs indicating that the home was a place

where a python, other reptiles, or any animals were on display or available

for viewing. The python cage was located in Mr . Robbins' garage. There were

no signs on the cage or in the garage providing information about the python,

such as a description of its natural element or its diet. Mr. Robbins did not

provide signs that may have been used but were not displayed at the ti me

because he had paused his operation. Mr. Robbins also did not provide

brochures or other printed materials with information about the python or

other reptiles. There were no seating areas in the garage. The garage

contained many objects one would expect to see in a garage such as weights,

a weight bench , and a motorcycle. No area of the garage was cleared out and

set up as a presentation area. In short , there was nothing indicating that the

garage was being used or had been used as a locatio n for exhibition of a

python.

13. Pan - Terra Exotics maintains a scanty Facebook page. That is the only

marketing or outreach evidence in the record. On August 10, 2020, the page

had two pictures of a snake, presumably the python. The page directed people

t o contact Pan - Terra on Messenger. It contained only the following

description of the business : "We offer personalized tours of multiple facilities

covering a wide range of exotic, endangered, beautiful animals. Our

education and community outreach is secon d to none. We also import, export,

sell, trade and breed exotic animals." There is no mention of exhibitions at

Mr. Robbins' home. The Facebook page also advised that Pan - Terra was

temporarily closed.

14. Mr. Robbins explain ed that the minimal information on his Facebook

page, as well as the absence of seating, educational material s , display

materials, or signs in his garage wer e due to his license being lapsed and

C OVID concerns. Because of this , at the time of the inspection he was not

operating his business. But Mr. Robbins, who bears the burden of proof in

this matter, did not offer any evidence demonstrating that at any time his

home and garage were set up to offer public tours or information. He did not,

present earlier im ages of his Facebook page at a more active time. He did not

present examples of brochures or other educational materials used before he

ceased operations. He did not offer signs removed because of the pause in

operations. He did not offer photographs of th e exterior or interior of his

home and garage that showed use of the garage to exhibit the python.

15. Mr. Robbins did not offer other evidence that might indicate use of his

python in an educational exhibition. Examples of evidence that might have

indica ted such use include receipts or other records showing individuals or

groups paid for an exhibition, the power point presentation referred to in his

email and testimony, calendars showing scheduled days and times for tours,

photos of the facility, or thank you notes from individuals or groups who had

attended exhibitions.

16. Mr. Robbins did not testify persuasively about exhibition of the python

in his garage. He spoke generally about ad hoc visits from a few interested

people. Mr. Robbins testif ied more persuasively about taking his reptiles to

various locations and meetings. But the testimony was very general, did not

clearly indicate that the python was among the reptiles, and did not provide

information about when he took the reptiles to various locat ions and

meetings. He also offered no corroborating testimony from other witnesses.

The only evidence offered to corroborate his claim of traveling to locations to

exhibit the python was hearsay, a single letter generally describing

"educational " outreach programs. Furthermore, the visits described do not

amount to "scheduled tours or general admission È" in a "permanent, fixed

facility."

C ONCLUSIONS OF L AW

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

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2020). See also Fla. Admin.

Code R. 68 - 1.008(5)(c)3.

1 8 . The Commission proposes to deny Mr. Robbins' application for a CSP.

Mr. Robbins ch allenges that decision. He must prove entitlement to the

license by a preponderance of the evidence. § 120.57(1)(j) , Florida Statutes.

19. Section 379.372 and Commission rules implementing it govern

possession of Burmese pythons. The Legislature amended th e statute in

2020. Section 3 of Chapter 2020 - 123, Laws of Florida, amended section

379.372(2)(a) to expressly prohibit keeping or possessing a Burmese python

"except for educational, research, or eradication or control purposes . " The

amended law took effec t July 1, 2020, before Mr. Robbins submitted his CSP

application. Mr. Robbins maintains that he possesses the python for

educational purposes. He bore the burden of proving this.

20. Rule 68 - 5.005 prohibits possession of "conditional non - native species,"

i ncluding Burmese pythons. It provides for permitted possession in specific

circumstances.

Permits shall be issued only to individuals or

institutions engaged in research, or to commercial

import or export businesses, public aquaria, public

zoological parks , or public exhibitors providing

educational exhibits. Permits shall not be issued for

display of these species in private aquaria, private

zoological parks, or for personal possession, except

as provided in Rule 68 - 5.004, F.A.C.

21. Rule 68 - 5.002(3) defin es "educational exhibit." It states an educational

exhibit is:

an organized presentation or display of a nonnative

fish or wildlife species along with a selection of

educational materials to include interpretive signs,

presentations, brochures, handouts, or other

materials which impart knowledge about the

displayed species. Such materials shall include

information about the species' range, habitat,

biology, and threats the species poses to Florida's

ecology, economy, or human health and safety.

22. Mr. Ro bbins did not prove by a preponderance of the evidence that his

possession of the python was an educational exhibit. There is no persuasive

evidence he had or offered educational materials as described in the

definition.

23. Rule 68 - 5.002(9) defines a publ ic exhibitor. It requir es:

a permanent, fixed facility in which Conditional

and/or Prohibited species are confined in such a

manner that the general public is able to view them

during regularly scheduled business hours, either

through scheduled tours or general admission, with

or without a fee.

24. A preponderance of the evidence does not prove that Mr. Robbins is a

public exhibitor. For example, there is no evidence of scheduled tours or

general admission exhibits. In fact, Mr. Robbins' testimony indica tes he did

not maintain regularly scheduled hours for display of the python.

25. Section 379.372(2)(c) creates a grandfathering provision for people

possessing, among other creature s, a Burmese python, if the person held a

permit issued before July 1, 20 10. Mr . Robbins did not hold a permit

qualifying him for that exemption.

R ECOMMENDATION

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

R ECOMMENDED that Respondent, Florida Fish and Wildlife Conservation

Commission, issue a final o rder denying the Conditional/Prohibited/

Nonnative Species Permit application of Petitioner, Phillip Robbins.

D ONE A ND E NTERED this 17th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

J OHN D. C. N EWTON , II

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May , 2021 .

C OPIES F URNISHED :

Rhonda E. Parnell, Esquire Phillip A. Robbins

Florida Fish and Wildlife 1146 Navajo Avenue

C onservation Commission Lehigh Acres, Florida 33936

620 South Meridian Street

Tallahassee, Florida 32399 Emily Norton, Gen eral Counsel

Florida Fish and Wildlife

Eric Sutton, Exec utive Director Conservation Commission

Florida Fish and Wildlife Farris Bryant Building

Conservation Commission 620 South Meridian Street

Farris Bryant Building Tallahassee, Florida 32399 - 1050

620 South Meridian Street

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.