21-002139 Drew Kaiser vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Monday, February 14, 2022.

Summary: The Commission does not have authority to discipline Petitioners' individual Gopher Tortoise Agent Licenses for alleged violations of recipient site permits.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D REW K AISER ,

Petitioner ,

vs. Case No. 21 - 2139

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent.

/

J OHN W ILSON ,

Petitioner,

vs. Case No. 21 - 2141

F LOR IDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent.

/

R ECOMMENDED O RDER

A duly - noticed final hearing was held in this case via Z oom conference on

October 12 through 14, 2021, before Suzanne Van Wyk, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

A PPEARANCES

For Petitioner s : Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryan & Atkinson, P.A .

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

Ian Waldick, Esquire

Parker, Hudson, Ranier & Dobbs, LLP

215 South Monroe Street, Suite 750

Tallahassee, Florida 32301

For Respondent: Rhonda E. Parnell, Esquire

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

S TATEMENT OF T HE I SSUE

Whether PetitionersÔ gopher tortoise agent permits should be revoked (or

non - renewed) for the violations alleged in the Agency Action letters dated

June 4, 2021.

P RELIMINARY S TATEMENT

On June 4, 2021, the Florida Fish and Wildlife Conservation Commission

(ÑCommissionÒ) issued Agency Action letters against Petitioners, Drew Kaiser

and John Wilson, seeking to revoke PetitionersÔ gopher tortoise agent

permits. Petitioners timely filed Petitions for Formal Administrative Hearing

to contest facts alleged in the Agency Action letters, which were referred to

the Division of Administrativ e Hearings (ÑDivisionÒ) on July 7, 2021, for

assignment of an administrative law judge to conduct a disputed fact - finding

hearing.

The two cases were consolidated for final hearing, which was scheduled

for October 12 through 14, 2021, via Zoom conference. As the docket reflects,

the undersigned heard and ruled on numerous pre - hearing motions,

including PetitionersÔ Motion to Stay and Motion to Dismiss, which were

denied.

At the final hearing, Respondent introduced the testimony of Eric

Seckinger, Kyle B rown, Nicole Savona, Samantha Cobble, Claire Sunquist

Blunden, and Joshua Horst. 1 RespondentÔs Exhibits 1.4 through 1.9, 1.11,

1.12, 2.4 through 2.6, 2.16, 2.17, 2.19, 3.1 through 3.6, 4.1, 4.3, 4.6

through 4.13, and 8.1 through 8.9 were admitted into evi dence. The partiesÔ

Joint Exhibits J - 1 through J - 10 were admitted into evidence.

Petitioner Wilson testified on his own behalf and PetitionersÔ Exhibits 2,

8, 9, 12, 13, and 29 were admitted into evidence. Petitioner Kaiser did not

testify.

The proceedi ngs were recorded and the f ive - volume Transcript of the final

hearing was filed with the Division on November 15, 2021. The parties

requested and received a ten - day extension to file their proposed

recommended orders. 2 The parties timely filed Proposed Rec ommended

Orders on December 6, 2021, which have been carefully considered by the

undersigned in preparing this Recommended Order.

Unless otherwise noted, citations to the Florida Statutes are to the 2021

version, which was in effect when the Agency Action letters were filed.

F INDINGS OF F ACT

1. The Commission is the state agency with the authority to exercise

regulatory and executive powers of the state with respect to wild animal life.

See Art. IV, § 9, Fla. Const.; § 379.1025, Fla. Stat.

2 . The Commissi on has designated the gopher tortoise as a State

Threatened Species, subject to protective provisions adopted by Commission

1 Despite Mr. Kaiser and Mr. WilsonÔs position as Petitioners in these consolidated cases,

Respondent has the burden of proof and the burden of going forward with the evidence. See

Associated Home Health Ag . , Inc. v. DepÔt of HRS , 453 So. 2d 104, 106 (Fla. 1st DCA 1984).

Thus, RespondentÔs case was presented first.

2 The parties agreed to a deadline for filing their p roposed r ecommended o rders which was

more than ten days after the filing of the Transcript; therefore, the parties waived the

requir ement that this Recommended Order be filed within 30 days after receipt of the

Transcript. See Fla. Admin. Code R. 28 - 106.216(2) (2021).

rule. See Fla. Admin. Code R. 68A - 27.003(2)(f)5. ÑNo person shall take,

attempt to take È capture, posses s , sell, or transport any g opher tortoise È

except as authorized by Commission permit or when complying with the

Gopher Tortoise Management Plan[.]Ò Id .

3 . Both the tortoise and its burrow are protected under state law, and

gopher tortoises must be relocated before any land clearin g or development

takes place on property where gopher tortoises are located. The CommissionÔs

Gopher Tortoise Program governs the capture and removal of gopher

tortoises from a development site and relocation of those tortoises to a

Commission - permitted re cipient site, as well as monitoring and maintenance

of recipient sites.

4 . The Commission has adopted extensive Gopher Tortoise Permitting

Guidelines (Ñthe GuidelinesÒ) governing the requirements to survey a

potential development site for gopher tortoises and burrows, regulating the

capture and trapping of gopher tortoises, as well as the transport of tortoises

to a recipient site, and the release of the tortoises to the recipient site. See

Fla. Admin. Code R. 68A - 27.003( 2 )(f)5.

5 . Drew Kaiser holds Autho rized Gopher Tortoise Agent permit number

GTA - 09 - 00005E, issued by the Commission and effective March 18, 2019

through March 31, 2021. The permit is issued to Drew Kaiser, Kaiser

Consulting Group, LLC, 931 South Ridgewood Avenue, Suite B3, Edgewater,

Flori da.

6. The permit authorizes Mr. Kaiser to undertake the following activities:

1. conduct gopher tortoise surveys;

2. capture gopher tortoises using bucket traps and

hand shovel excavation of gopher tortoise burrows;

3. mark, transport, and release cap tured gopher

tortoises at recipient sites; and

4. supervise backhoe excavation of gopher tortoise

burrows to capture gopher tortoises.

7 . John Wilson holds Authorized Gopher Tortoise Agent permit number

GTA - 19 - 00123, issued by the Commission and effecti ve November 4, 2019

through November 4, 2021. The permit is issued to John Wilson, Kaiser

Consulting Group, 4323 Kezar Court, Orlando, Florida.

8 . Mr. WilsonÔs permit authorizes him to undertake the following

activities:

1. conduct gopher tortoise survey s, and

2. mark, transport, and release captured gopher

tortoises at recipient sites.

9 . Both permits contain conditions and provisions governing the

authorized activities, including the requirement to comply with the

Guidelines.

10 . Mr. KaiserÔs permit also provides that the Ñactivities authorized under

this Permit must be carried out by the Permittee or the AssistantsÒ

designated by the permittee, and that the Ñ[p]ermittee shall be as fully

responsible for activities conducted by Assistants È to the sa me extent as if

they had themselves carried out those activities.Ò

11 . Mr. Kaiser listed Mr. Wilson as one of his Assistants on his 2019

application for renewal of his Authorized Gopher Tortoise Agent permit.

12 . Mr. Kaiser owns Kaiser Consulting Group (ÑK CGÒ) and Mr. Wilson is

employed by KCG as a project manager.

13 . Recipient sites are privately or publicly - owned lands of 25 acres or

more subject to permitting by the Commission to accept gopher tortoises

needing relocation out of harmÔs way from developm ent.

14 . The allegations in the Agency Action letters relate to activities that

occurred at one of the following recipient sites permitted by the Commission:

1. Padgett Creek, Long - Term Gopher Tortoise

Recipient Site permit number GTLR - 18 - 00001;

2. C. He rman Beville Ranch, Long - Term Gopher

Tortoise Recipient Site permit number GTLR - 10 -

00003D;

3. Highlands Ranch, Long - Term Gopher Tortoise

Recipient Site permit number GTLR - 17 - 00001;

4. Triple S Ranch, Long - Term Gopher Tortoise

Recipient Site permit nu mber GTLR - 20 - 00001;

5. Russakis Investments, Long - Term Gopher

Tortoise Recipient Site permit number GTLR - 13 -

00005;

6. Russakis Ranch, Long - Term Gopher Tortoise

Recipient Site permit number GTLR - 11 - 00003C;

and

7. Williamson Cattle Company, Long - Ter m Gopher

Tortoise Recipient Site permit number GTLR - 19 -

00003A.

15 . Applicants for a recipient site permit must identify an A uthorized

Gopher Tortoise Agent associated with the permit.

16 . The Guidelines do not address the scope of the Authorized Gopher

Tortoise AgentÔs responsibility for activities on the recipient site , except with

regard to Transport, Marking, and Release of Gopher Tortoises (Guidelines,

p. 22), as follows:

For relocation permit applications where gopher

tortoises will be relocated of f - site and the

Authorized Agent for the donor site is not

authorized to transport, mark and release gopher

tortoises, the permit application must include

documentation that the Authorized Agent

representing the gopher tortoise recipient site or one

of the assistants to that agent will transport, mark,

and release tortoises captured under that relocation

permit .

(emphasis added).

17 . Each of the subject recipient site permits is issued to the landowner.

Each permit names Drew Kaiser as the authorized agen t, with an address of

Kaiser Consulting Group, LLC, 931 South Ridgewood Avenue, Suite B3,

Edgewater, Florida. However, the landowner, not Mr. Kaiser, is the

permittee.

18 . Each recipient site permit contains the following statement in the

permit conditions :

The activities authorized under this Permit may be

carried out by the authorized personnel or

contractors of the Permittee or the designated

Authorized Gopher Tortoise Agent

(Agent)/Consultant , provided all such activities are

under the direct supervisio n and responsibility of

the Permittee or Agent/Consultant. The Permittee

and Agent/Consultant shall be as fully responsible

for any such activities to the same extent as if they

had themselves carried out those activities under

the Permit.

(emphasis added ).

19 . In each case, KCG prepared the application for the recipient site

permit. KCG also prepared the Gopher Tortoise Habitat Management Plan

for each of the recipient sites.

20 . The management plan for the C. Herman Beville Ranch (ÑBeville

RanchÒ) states that Ñ[KCG] has been retained by [its managing principal] as

the sole managersÒ of the recipient site. Further it provides that the Ñland

will be maintained and monitored by [KCG] to comply, provide suitable

habitatÒ and to ensure that Ñthere will be no a ctivities or improvements that

will impede or interfere withÒ the gopher tortoise habitat.

21 . The remaining recipient site management plans require that

maintenance and monitoring occur to comply with Commission rules and the

Guidelines, but do not direct ly state that KCG has been retained as sole

manager.

Recipient Site Requirements

22 . The Guidelines (Section IV, ÑTypes of PermitsÒ) contain the following

relevant requirements for recipient sites :

To receive a [Commission] recipient site permit,

candidat e properties must meet the site suitability

criteria for size, soil, and habitat. Site suitability

criteria vary according to the level of conservation

value provided by the recipient site.

Landowners who meet the basic criteria in these

guidelines are en couraged to contact the

[Commission] Gopher Tortoise Permit Office to

schedule a pre - application site visit. A preliminary

site visit allows [Commission] staff to evaluate the

suitability of the habitat on the proposed site.

* * *

All tortoises relocated to any recipient site

(including unprotected recipient sites) shall be

released into a temporary enclosure as described

below and retained within the enclosure for a

period of not less than six months and no more

than twelve months.

* * *

Tortoises shal l be released into temporary fenced

enclosures such that the maximum number of

gopher tortoises approved by FWC for release into

the entire recipient site parcel shall not be

exceeded. Enclosures within recipient sites with

varying approved stocking rates may be stocked at

1.5 times the approved density for the area in

which the enclosure is located. If an enclosure

encompasses an area with varying approved

stocking rates, then the enclosure Ô s approved

gopher tortoise density will be proportional to the

num ber of acres in each approved stocking rate

area. For example, if a 40 - acre recipient site

initially containing no gopher tortoises includes a

15 - acre enclosure encompassing five acres that are

approved for a final density of two gopher tortoises

per acre and ten acres that are approved for a final

density of three gopher tortoises per acre, then the

enclosure can receive up to 60 gopher tortoises

1.5

Temporary enclosures may be of any material that

prevents the passage of tortoises o f all sizes

released to the site. È [t]emporary fencing must be

buried at least eight inches into the ground to

prevent tortoises pushing beneath the enclosure

and must be at least two feet high and of sufficient

robustness to prevent tortoises pushing or climbing

over.

* * *

Temporary fencing must be regularly monitored

and maintained to repair damage and retain the

integrity of the temporary enclosure.

* * *

Tortoises observed above ground within the

temporary enclosures shall be monitored weekly for

the first month and monthly thereafter to

document any problems (e.g. illness, mortality,

evidence of human poaching, emigration). The

[Commission] permitting office must be contacted if

decreases in tortoise numbers are documented.

23 . Appendix 3 of the Guidelines (ÑInformation Needed for È Recipient

Site PermitsÒ) provides the following relevant to the required habitat

management plans for recipient sites:

Tortoise mortality/contingency plan : The habitat

management plan must include a landowner

commitmen t to notify the [Commission] within

48 hours of any observed mortality, injury or sign of

disease and if needed, coordinate with them to

develop a contingency and/or adaptive management

plan to address mortality on the recipient site

should evidence of mul tiple adult tortoise shells

and carcasses be observed beyond infrequent

mortality (i.e., >3% of the adult tortoise population

in any one year, or if more than a few adults are

found dead in any small area) seen under natural

circumstances (i.e., wildlife p redation or disease).

Alleged Violations

24 . The Commission cites Petitioners with multiple violations of the

Guidelines in management of the recipient sites. 3 The violations include the

following:

Failing to regularly monitor and maintain

temporary fenci ng at several of the recipient sites

to repair damage and maintain the integrity of the

temporary enclosures;

Overstocking gopher tortoises at the Padgett Creek

and Triple S Ranch recipient sites;

Failing to report observed tortoise mortalities to

the Co mmission, which would trigger development

of a contingency or adaptive management plan;

Failing to monitor the Padgett Creek Ranch and

Beville Ranch sites for feral pig activity and take

steps to curb feral pig damage to tortoise burrows;

and,

Allowing u se of rollerchopping at the Triple S

Ranch recipient site, when that land management

technique is not included in the management plan.

25 . As discussed in the Conclusions of Law, the Commission failed to

prove that either PetitionerÔs gopher tortoise agen t permit is subject to

discipline for alleged violations of the recipient site permits.

3 For unknown reasons, the Commission did not cite the recipient site permit holders for

violations of the recipient si te permits.

Triple S Ranch

26 . In addition to alleged violations of the Guidelines on the recipient

sites, the Commission charged Mr. Kaiser with submitting false information

in connection with the Triple S Ranch recipient site permit application.

27 . Mr. KaiserÔs assistant, Mr. Wilson, assisted in preparation of the

permit application for Triple S Ranch as a recipient site.

28 . Mr. Wilson conducted the required tortoise survey b etween February

and April 2019.

29 . A gopher tortoise survey is required on at least 15 percent of the site

to get a baseline for the number of tortoises already living on the proposed

recipient site. During a gopher tortoise survey, an agent, or agents, w alks a

series of transect lines on the property, and marks the location of existing

gopher tortoise burrows on a corresponding map of the potential recipient

site. The agent also submits survey information in electronic form.

30 . Mr. Wilson also assisted i n preparation of the required land cover

map, vegetation survey, soils map, and gopher tortoise habitat map, as well

as with information for title searches and the required conservation

easement.

31 . On or about May 15, 2019, Erik Seckinger, senior gopher tortoise

biologist for the Commission; and another Commission staffperson, Momoka

Meada , 4 conducted the required pre - application site visit to the Triple S

Ranch. Mr. Seckinger met with Mr. Kaiser and Mr. Wilson at the property

with maps of the property, s oil maps, and the vegetation survey that was in

process by Mr. Wilson. Mr. Wilson drove the Commission staff to various

portions of the property as requested by them, and staff got out of the truck

and walked certain areas of the property. Altogether, the pre - application site

visit took about six hours and covered approximately 70 percent of the

property.

4 The record does not document Ms. MeadaÔs professional title.

32 . During the pre - application site visit, Mr. Seckinger determined that

some of the habitat on the property was Ñimproved pastureÒ not suitable for

gophe r tortoises. Mr. Wilson removed that acreage (approximately 17 acres)

from the maps to be used for the application. Another area was removed at

the direction of Commission staff on the basis that it needed maintenance.

That area was noted for future use, b ut not for approval, in the initial

application.

33 . The Commission approved Triple S Ranch as a recipient site effective

February 20, 2020.

34 . Kyle Brown, gopher tortoise conservation biologist for the

Commission, and Nicole Savona, conservation easement and monitoring

compliance biologist, conducted an inspection at Triple S Ranch on May 2,

2021. 5 Mr. Brown and Ms. Savona were met at the ranch by Mr. Kaiser and

Mr. Wilson, who guided them around the property. Mr. Brown brought with

him the habitat map fr om the recipient site application, which is a Florida

Land Use Classification System (ÑFLUCSÒ) map overlaid with the property

boundary, red hatching over areas which are not usable for gopher tortoise

habitat, and blue hatching over areas reserved for futu re use as gopher

tortoise habitat. The map is also overlaid with the habitat land use

classification code corresponding to each area, such as 2110 Ï improved

pasture; 3210 Ï palmetto prairies; and 4110 Ï pine flatwoods.

35 . During his inspection, Mr. Brow n noted that Ñ[a]reas classified as

Ópalmetto prairiesÔ in FLUCS and application are more in line with Óimproved

pastureÔ. These habitat [sic] have very little shrubs other than the sporadic

stand of palmettos.Ò Finally, Mr. Brown noted that Ñthese areas c ould benefit

from some supplemental plantings of palmettos and other variety of foraging

plants to improved [sic] suitability for tortoises.Ò

5 Section 5.1 of the Guidelines requires the Commission to conduct annual monitoring

inspections of recipient sites. The subject inspection occurred slightly more than a year after

issuance of Triple S RanchÔs recipient site permit.

36 . In his report summary, Mr. Brown concluded as follows:

The portions of the property permitted as

acceptable ÑPalmetto Prairies,Ò around 1568.20

acres are more in line with descriptions of

ÑImproved Pasture.Ò There is very little in the way

of fetter bush in these areas and palmetto is not the

dominant vegetation type. Palmetto was found

sporadically throughout t hese areas but the

dominant vegetation is various grasses. Cows are

found throughout these portions of the property.

37 . Based on Mr. BrownÔs observations of the habitat on the ground at

Triple S Ranch, the Commission charged Petitioner Kaiser with submit ting

false information in the Triple S Ranch recipient site permit application in

2019.

38 . The evidence was insufficient to establish that either the habitat land

use map or the vegetation survey submitted by KCG as part of the

application for Triple S Ra nch recipient site permit was falsified. 6 It was also

insufficient to establish that the areas Mr. Brown identified as Ñmore in line

with descriptions of improved pasture,Ò actually met the GuidelinesÔ

definition of improved pasture.

39 . The Guidelines de fine Ñimproved pastureÒ as Ñland which has been

cleared, tilled, and is dominated by planted non - native or domesticated

native foraging species and evidence of current or recent cultural treatments

(mowing, grazing, burning, fertilizing), with less than 10 % canopy cover.Ò

Mr. Brown testified that he was unaware if the areas he described as

improved pasture had ever been cleared or tilled. Moreover, although he

6 The Commission introduced in evidence the initial vegetation survey tables submitted by

KCG with the application in 2019, which lists the herbaceous ground cover type associated

with each vegetation su rvey station. The undersigned assumes the purpose was to compare

the tabular information with the vegetation survey maps (which are based on a e r ia l

photography), to demonstrate that the vegetation described in 2019 did not match the

vegetation pictured at that time. However, the vegetation survey maps do not contain

information to cross - reference to any particular survey station number in the table, and the

Commission did not introduce testimony from any witness to make that connection for the

undersigned.

testified that non - native grasses existed in those areas, he did not know

whether they had been pl anted.

40 . At most, the evidence demonstrated that some areas noted as Ñshrub

and brushlandÒ and Ñpalmetto prairieÒ in the permit application in May 2019,

were dominated by grasses, rather than either palmetto or other shrubs, on

March 2, 2021. 7 The appro ved management plan for Triple S Ranch provides

for cattle rotation and prescribed burns as methods to keep vegetation cover

low in both the shrub and brushland communities and the palmetto prairies.

C ONCLUSIONS OF L AW

41 . The Division has jurisdiction ov er the subject matter of, and the

parties to, this proceeding. See §§ 120.569 and 120.57(1), Fla. Stat. (2021 ).

42 . Petitioners hold gopher tortoise agent permits to conduct specific

activities related to the removal and transport of gopher tortoises from

development sites to recipient sites.

4 3 . In this case, the Commission seeks revocation of PetitionersÔ licenses,

and as such, this proceeding is penal in nature. The Commission has the

burden to prove the allegations in the Agency Action letters by clea r and

convincing evidence. See DepÔt of Banking & Fin. v. Osborne Stern & Co ., 670

So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Coke v. DepÔt of Child. & Fam. Servs ., 704 So. 2d 726 (Fla. 5th DCA 1998).

4 4 . In Evans Packin g Company v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116 n.5 (Fla 1st DCA 1989), the First

District Court of Appeal defined clear and convincing evidence as follows:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the evidence must be precise and

7 Furthermore, it is difficult to conclude that Mr. Kaiser, or one of his assistants, falsified the

application due to physical conditions on the property when the Commission engaged in a

substantial pre - application physical inspection of the property and, thereafter, issued the

recipient site permit.

explicit and the witnesses must be lacking in

confusion as the facts in issue. The evidence must

be of such weight that it produc es in the mind of

the trier of fact that firm belief of 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).

Falsifying Information

4 5 . Florida Administra tive Code Rule 68 - 1.010(2)(c) provides:

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:

* * *

(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.

4 6 . The Commission did not present clear and convincing evidence that

either the habitat coverage map or vegetation survey submitted with the

Triple S Ranch recipient site application was falsified.

4 7 . The Commission did not carry its burden to prove that Mr. Kaiser is

subject to discipline pursuant to rule 68 - 1.010(2)(c).

Alleged Recipient Site Permit Violations

4 8 . Rule 68 - 1.010(2)(d) provides:

(2) The Commission shall revoke or deny the

renewal of any license, permit or other

authorization based on any one or more of the

follo wing grounds:

* * *

(d) The licensee, permittee or other holder 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 aq uatic life or

marine life.

(emphasis added).

4 9 . The CommissionÔs Agency Action letters do not allege violations

related to activities undertaken by Petitioners pursuant to their individual

gopher tortoise agent permits Ð conducting gopher tortoise surve ys on donor

sites or capture and transport of gopher tortoises.

50. The activities authorized under each PetitionerÔs gopher tortoise agent

permit are specific and narrow. Mr. KaiserÔs permit authorizes him to

conduct gopher tortoise surveys; capture gophe r tortoises using bucket traps

and hand shovel excavation; mark, transport, and release captured gopher

tortoises at recipient sites; and supervise backhoe excavation of gopher

tortoise burrows. Mr. WilsonÔs permit authorizes him to conduct gopher

tortoise surveys; and to mark, transport, and release captured gopher

tortoises at recipient sites.

5 1 . None of the activities Petitioners were undertaking in managing the

recipient sites were conducted under the authority of their individual gopher

tortoise agen t permits.

5 2 . The Guidelines provide for suspension, revocation, or non - renewal of

authorized gopher tortoise agent permits for Ñjust causeÒ as determined by

the Commission.

5 3 . Appendix 15 of the Guidelines contains the specific criteria for

suspension , revocation or non - renewal of authorized agent permits. The

appendix provides that authorized agents Ñare responsible for their actions

associated with [Commission] - permitted activities and other activities that

impact gopher tortoises and gopher tortoise burrows.Ò

5 4 . ÑAny act or omission that does not comply with the statutes or rules

related to gopher tortoises [Commission] - approved guidelines, or permit

conditions is cause for an infraction to be issued.Ò Appendix 15, Guidelines.

Infractions are categ orized by:

(1) whether the permit violation risks and/or causes

injury or mortality of gopher tortoises, and

(2) whether or not the permit violation was self -

reported to [the Commission].

(emphasis added).

5 5 . Appendix 15 provides examples of violations falling into both

categories. In both cases, the examples (although not comprehensive) are

activities relating exclusively to trapping, transporting, and releasing gopher

tortoises from a development site to a recipient site (including filing after -

action reports following the release of gopher tortoises to a recipient site).

5 6 . The violations which the Commission alleges occurred on the various

recipient sites are outside the scope of PetitionersÔ Gopher Tortoise Agent

p ermits. While the recipient site p ermits do list Mr. Kaiser as the agent, the

Commission has no authority to discipline Mr. Kaiser Ôs , or his A ssistant,

Mr. WilsonÔs, individual agent permit for activities undertaken pursuant to

wholly separate recipient site permits. Both rule 68 - 1.010(2)( d) and Appendix

15 of the Guidelines are clear that discipline of a licensed gopher tortoise

agent must be tied to a permit violation , or violation of other agency rule

(e.g., submitting false information in an application). It is axiomatic that an

agency must follow its own rules. See Collier Cty. v. Fish & Wildlife Conser.

CommÔn , 993 So. 2d 69, 74 (Fla. 2d DCA 2008)(agency cannot simply accept

representations in local government ordinance to establish restricted boating

areas when the agency rule require s it to find that specific factual criteria are

met) ( citing Vantage Healthcare Corp. v. Ag. for Health Care Admin ., 687 So.

2d 306, 308 (Fla. 1st DCA 1997) ) . In this case, the Commission has cited

violations of the recipient site permits without citing the holders of those

permits and seeks to discipline PetitionersÔ gopher tortoise agent permits

without citing any violations of those permits .

5 7 . The Commission issued the recipient site permits, alleges that

violations of those permits have occurred, and has authority to discipline the

permittee for the alleged violations. While the recipient site permits state

that the designated recipient site agent may undertake the activities

permitted therein, and may be as liable for those activities as the permittee ,

that statement does not authorize the Commission to revoke or non - renew

the agentÔs individual gopher tortoise agent permit , for said alleged violations.

Conclusion

5 8 . The Commission has not established grounds for revocation or non -

renewal of Petition ersÔ Authorized Go pher T ortoise A gent permits.

A TTORNEY Ô S F EES

59. On September 3, 2021, Petitioners filed a Motion for AttorneyÔs Fees,

Expenses and Costs (ÑMotionÒ) against the Commission pursuant to sections

120.569 and 120.595, Florida Statutes (202 1 ) .

60. The Commission filed its Response to the Motion on September 8,

2021.

61. Pursuant to section 120.595(1), fees may be awarded if the

undersigned determines that the non - prevailing adverse party participated in

the proceedings for an improper purpose. Such determination may be made

only after issuance of a final order in this case.

62. PetitionersÔ plea for fees pursuant to section 120.569 does not require a

determination of which party is the prevailing party ; but, in the interest of

judicial economy, the Motion will be disposed of as a whole, rather than in

bifurcated proceedings.

63. The undersigned reserves ruling on the Motion following entry of the

final order in this case, provided that a renewed motion is filed within

30 days of the entry of the final order.

R ECOMMENDATION

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

R ECOMMENDED that the Commission dismiss the Agency Action letters

against Petitioners.

D ONE A ND E NTERED this 1 4 th day of February , 2022 , in Tallahassee, L eon

County, Florida.

S

S UZANNE V AN W YK

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 1 4 th day of February , 2022 .

C OPIES F URNISHED :

Kenneth G. Oertel, Esquire Rhonda E. Parnell, Esquire

Oertel, Fernandez, Bryant & Florida Fish and Wildlife

Atkinson, P.A. Conservation Commissio n

Post Office Box 1110 Farris Bryant Building

Tallahassee, Florida 32302 - 1110 620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Ian E. Waldick, Esquire

Parker, Hudson, Rainer & Dobbs, LLP Eric Sutton, Executive Director

Suite 750 Florida Fish and Wildlife

215 South Monroe Street Conservation Commission

Tallahassee, F lorida 32301 Farris Bryant Building

620 South Meridian Street

Emily Norton, General Counsel Tallahassee, Florida 32399 - 1600

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

N OT ICE 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 th is

case.