98-004976 Bert Allen Wahl, Jr. (116 W Elm St) vs. Florida Game And Fresh Water Fish Commission Status: Closed Recommended Order on Friday, February 18, 2000.

Summary: Respondent notified Petitioner on September 22, 1998, of his denial of three applications to house Class I wildlife at three properties due to unmet land requirements and inadequate caging.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERT ALLEN WAHL, JR., )

)

Petitioner, )

)

vs. ) Case Nos. 98-4974

) 98-4975

FLORIDA FISH AND WILDLIFE ) 98-4976

CONSERVATION COMMISSION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On October 8, 1999, a formal administrative hearing was held

in this case by televideo in Tallahassee and Tampa, Florida,

before William R. Pfeiffer, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joseph R. Fritz, Esquire

4204 N orth Nebraska Avenue

Tampa, Florida 33603

For Respondent: Preston T. Robertson, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUES

Whether Respondent properly denied the applications of

Petitioner for Class I wildlife; and whether Respondent's

previous granting of Class I licensure to Petitioner estops

Respondent from denying the instant applications.

PRELIMINARY STATEMENT

The Florida Fish and Wildlife Conservation Commission

informed Petitioner on September 22, 1998, of his denial of three

applications for Class I wildlife. The denial was based on

Petitioner's failure to meet the lawful land requirements and

inadequate caging located at the proposed sites.

At the hearing on October 8, 1999, Respondent presented the

testimony of Linda Harrison, Steve DeLacure, and Linda Coomey.

Petitioner presented the testimony of Bert Wahl. Petitioner's

Exhibits 1-5, and Respondent's Exhibits 1-3, 5-14, and 19-21 were

admitted into evidence.

The testimony of Dennis Parker, taken by deposition on

September 29, 1999, in Tampa, Florida, was received without

objection.

Both parties requested a transcript of the final hearing,

and the parties were given 14 days from the filing of the

Transcript in which to file proposed recommended orders. The

transcript was filed on November 1, 1999.

FINDINGS OF FACT

1. On July 15, 1998, Petitioner applied to the Commission

for licenses, via three separate applications, to possess

wildlife, particularly bears, leopards, and baboons at three

separate locations.

2. The applications cited the addresses of 127 West

Hiawatha Street, 116 West Elm Street, and 6802 North Highland

Avenue, all in Tampa, Florida, as the locations where Petitioner

planned to possess the animals. Petitioner applied to possess

bears (family ursidae ), leopards (family felidae ) and baboons

(family cercopithecidae ) at each location. All these animals are

Class I wildlife.

3. Respondent issued Notices of Denial of the three

applications to Petitioner on September 22, 1998.

4. Class I animals are dangerous animals that cannot be

possessed for personal use, and are typically found in zoos.

They are dangerous because of their ferocity and size. These

animals may be aggressive towards anyone, including their keeper.

5. Class II wildlife are potentially dangerous animals

which should only be possessed by experienced individuals.

6. Class III animals are of smaller size and are less

aggressive.

7. The goal of the Commission's classification system is

to promote the safehousing of wildlife, and to protect the

general public and the individual keeping the animals.

8. In the application for 116 West Elm Street, Petitioner

noted that he presently possessed five white-tailed deer, one

muntjac, and one emu, all Class III wildlife. Petitioner did not

possess authorization to house Class I wildlife at 116 West Elms

Street, the year previous to the instant application.

9. In the application for 127 West Hiawatha Street,

Petitioner noted that he presently possessed two panthers and one

bobcat, both Class II wildlife, and two alligators, which are

Class III wildlife. Petitioner did not possess authorization to

house Class I wildlife at 127 West Hiawatha Street the year

previous to the instant application.

10. In the application for 6802 North Highland Avenue,

Petitioner noted that he presently possessed no wildlife at this

location. Petitioner did not possess authorization to house

Class I wildlife at 6802 North Highland Avenue the year previous

to the instant application.

11. Two of Petitioner's locations are contiguous: 127 West

Hiawatha Street, and 166 West Elm Street.

12. Petitioner's location at 6802 North Highland Avenue is

approximately one block from the other two sites, and on the

other side of the street.

13. Elm and Hiawatha are not one property, but two separate

residences and addresses. The Hiawatha and Elm Street addresses

were treated as two separate locations by the Commission as they

are separate addresses with separate applications.

14. The Elm Street and Hiawatha locations are separated by

a fence at the back of each property. Petitioner uses a ladder

to traverse over the fence between the Elm Street and Hiawatha

locations.

15. The area where Petitioner wishes to house Class I

wildlife is a residential area with small single-family houses

located close together, with small yards, and near a major road.

There are residential properties to the east of both the Hiawatha

and Elm Street locations. Petitioner's neighborhood is densely

populated, with single-family residential dwellings and small

lots. Petitioner's locations are within approximately 100 yards

from large intersections at Sligh Avenue and Florida Avenue.

16. The three properties where Petitioner sought to keep

Class I wildlife are zoned single-family residential.

Approximately six people per week visit through Petitioner's

facilities.

17. Petitioner has received various permits, including

Class I, from the Commission for over the past 15 years.

18. It is possible to obtain a Class I license and not be

qualified to possess animals at the address on the license.

19. Pursuant to law, a permittee for Class I wildlife has

to meet specific requirements including standard caging

requirements and land area. The land area required to house

Class I wildlife is 1/4 acre minimum. An acre of land is 43,560

square feet. One-quarter of an acre is 10,890 square feet. The

1/4 acre minimum area for Class I wildlife is critical because it

allows for a larger buffer for dangerous animals.

20. Respondent wildlife inspectors visit applied-for sites

to determine whether the facility meets the caging requirements,

whether wildlife are housed safely and ensure the public is not

at risk.

21. Respondent inspections are made to determine whether

caging is strong enough to contain animals safely and to verify

the owner or possessor does not exceed the number of permitted

animals.

22. Wildlife officers regulate and enforce the caging of

captive wildlife, both exotic and native. It is necessary to

have cages meet the rules to protect the safety of the animal,

the neighbors, and the keeper.

23. Respondent's Lieutenant Stephen Delacure, who has been

a Commission Wildlife Officer or Inspector for approximately ten

years, has been to Petitioner's three locations in Tampa at least

15 times over the past four years.

24. Delacure has never seen any Class I animals at any of

Petitioner's three locations.

25. On November 12, 1998, Delacure and Lieutenant Krause

inspected all three of Petitioner's locations pursuant to his

application.

26. Delacure inspected the three locations for appropriate

caging and land area for bears, leopards, and baboons. Delacure

measured all locations with Petitioner present and indicated that

he gave Petitioner "the benefit of the doubt" as to the

measurements.

27. Delacure measured the total area for 127 West Hiawatha

Street to be 103 feet by 39 feet (front and depth) (4,017 square

feet). Delacure measured the total area of 116 West Elm Street

to be 87 feet by 69 feet (6,003 square feet). Therefore,

Delacure found the combined area for 127 West Hiawatha Street and

116 West Elm to be 10,020 square feet. Delacure measured the

total area of 6802 North Highland Avenue to be 102 feet by 42

feet (4,284 square feet).

28. Delacure found no adequate caging for Class I bears,

baboons, or cats at 127 West Hiawatha Street. In addition,

Delacure found no caging for Class I wildlife at 116 West Elm

Street nor 6802 North Highland Avenue.

29. The November 1998 inspection was the basis for the

issuance of the amended notice of denial for failure to meet land

area requirements and to meet caging requirements. Respondent

denied Class I licenses to Petitioner because of inadequate land

area and caging.

30. Class II licenses do not say "all" for possession

purposes, as these licenses are defined by specific animal

families. However, Class III licenses may say "all" for

possession purposes.

31. The Respondent changed Class I licenses to animal

specific from the "all" designation to ensure that the animal

possessor is familiar with the handling of that family or species

of animal as nutritional, health, and handling requirements are

different for each animal family.

32. Linda Coomey is a building inspector for the City of

Tampa, having done this job for 15 years. Coomey inspects zoning

and code enforcement.

33. Coomey has been to Petitioner's locations 12-13 times

over the last eight years. Coomey calculated the area of 127

West Hiawatha Street as 38 feet by 103 feet (3,914 square feet).

34. Coomey calculated the area of 116 West Elm Street as 65

feet by 80 feet (5,200 square feet). Therefore, Coomey found the

combined area of 127 West Hiawatha Street and 116 West Elm Street

is 9,114 square feet. The area of 6802 North Highland Avenue was

calculated by Coomey as 50 feet by 104 feet (5,200 square feet).

These measurements were taken from the Hillsborough County plat

maps and Coomey does not consider any error in measuring the

square footage as acceptable.

35. The Hillsborough County Property Appraiser's Office

found the area of the three properties to be as follows: 127

West Hiawatha Street, 38 feet by 103 feet (3,914 square feet);

116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and

6802 North Highland Avenue, 50 feet by 104 feet (5,200 square

feet). None of these individual areas is equal to or greater

than 1/4 acre, nor does the combining of the areas of 127 West

Hiawatha Street and 116 West Elm Street (3,914 square feet and

5,200 square feet, for a total of 9,114 square feet) meet or

exceed 1/4 acre.

36. The Hillsborough County Tax Collector's Office reports

127 West Hiawatha Street as being .09 acres; 116 West Elm Street

as being .12 acres; and 6802 North Highland Avenue as being .12

acres. Therefore, the Hillsborough County Tax Collector's Office

found the combined area of 127 West Hiawatha Street and 116 West

Elm Street is .21 acres.

37. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by

103 feet (4,017 square feet) in total area, and Respondent's

officers informed Petitioner he did not have the required

acreage.

38. Respondent informed Petitioner on more than one

occasion that Petitioner could have a Class I license that allows

a person to borrow an animal and not be allowed to posseses Class

I animals on the license holder's property.

39. On September 6, 1991, Petitioner was issued a license

for 127 West Hiawatha Street, which cited that Petitioner could

possess the following: Class I, felidae , cercopithecidae , and

ursidae ; Class II, felidae and cercopithecidae ; Class III, all

excluding venomous reptiles.

40. On July 23, 1993, Petitioner was issued a license for

127 West Hiawatha Street, which cited that Petitioner could

possess the following: Class I, none; Class II, felidae ; Class

III, all excluding felidae .

41. On June 29, 1993, Petitioner was issued a license for

116 West Elm Street, which cited that Petitioner could possess

the following: Class I, ursidae , cercopithecidae , and felidae .

42. On June 29, 1993, Petitioner was issued a license for

6802 North Highland Avenue, which cited Petitioner could possess

the following: Class I, ursidae , felidae , and cercopithecidae ;

Class II, all excluding venomous reptiles; Class III, all

excluding venomous reptiles.

43. On June 29, 1994, Petitioner was issued a license for

116 West Elm Street, which cited Petitioner could possess the

following: Class I, felidae , cercopithecidae , and ursidae ; Class

II, all, excluding venomous reptiles; Class III, all excluding

venomous reptiles.

44. On June 29, 1994, Petitioner was a issued a license for

6802 North Highland Avenue, which cited Petitioner could possess

the following: Class I, felidae , cercopithecidae , and ursidae ;

Class II, all, excluding venomous reptiles; Class III, all

excluding venomous reptiles.

45. On July 4, 1994, Petitioner was issued a license for

127 West Hiawatha Street, which cited Petitioner could possess

the following: Class I, none; Class II, felidae ; Class III, all

excluding venomous reptiles.

46. On June 27, 1996, Petitioner was issued a license for

127 West Hiawatha Street, which cited Petitioner could possess

the following: Class I, none; Class II, felidae ; Class III, all,

excluding venomous reptiles.

47. On August 9, 1996, Petitioner was issued a license for

116 West Elm Street, which cited Petitioner could possess the

following: Class I, felidae , cercopithecidae , and ursidae ; Class

II, felidae and cercopithecidae ; Class III, all excluding

venomous reptiles.

48. On August 9, 1996, Petitioner was issued a license for

6802 North Highland Avenue, which cited Petitioner could possess

the following: Class I, felidae , cercopithecidae , and ursidae ;

Class II, felidae and cercopithecidae ; Class III, all excluding

venomous reptiles. This was the last instance where Petitioner

was licensed to possess Class I wildlife.

49. On September 16, 1997, Petitioner was issued a license

for 127 Hiawatha Street, which cited Petitioner could possess:

Class I, none; Class II, felidae ; Class III, all.

50. On September 16, 1997, Petitioner was issued a license

for 116 West Elm Street, which cited Petitioner could possess:

Class I, none; Class II, none; Class III, all, excluding venomous

reptiles.

51. On September 16, 1997, Petitioner was issued a license

for 6802 North Highland Avenue, which cited Petitioner could

possess: Class I, none; Class II, none.

52. Lieutenant Dennis Parker is an inspector for

Respondent, having worked for Respondent 26 years. Parker has

consistently inspected Petitioner's facilities for more than 15

years. Parker measured 127 West Hiawatha Street "from curb to

curb" in 1992 pursuant to Petitioner having a bear on the

premises. Petitioner immediately received notice from Respondent

that his acreage was inadequate via a "field revocation."

Petitioner was ordered to remove the Class I animals.

53. Petitioner was mistakenly provided a Class I license

for ursidae before the Commission measured 127 West Hiawatha

Street, under Parker's assumption that Petitioner had adequate

acreage. A Class I license requires 1/4 acre or more to possess

a Class I animal on that property.

54. Petitioner's license for Class I ursidae was based on

Petitioner's borrowing a bear for exhibition, with the bear being

kept at a licensed facility not owned by Petitioner. Petitioner

used 127 West Hiawatha Street as the mailing address for the

license. Respondent had never inspected or authorized caging for

bears at 127 West Hiawatha Street.

55. Petitioner originally obtained bears without the

knowledge and/or consent of Respondent, then a complaint was

filed with Respondent. Petitioner recently had an animal escape

from the 116 Elm Street location.

56. Petitioner presently possesses Class I animals.

Petitioner's properties do not meet the regulatory requirement

for acreage size to house Class I wildlife pursuant to Rule 68A-

6.022 (formerly 39-6.022), Florida Administrative Code.

57. Petitioner is one of thousands of persons who has

authority to possess animals, but does not have an approved

facility address to house the animals.

58. Moreover, assuming arguendo that the properties are

combined, Petitioner's properties at 127 West Hiawatha and 116

West Elm fail to meet the mandatory requirements for acreage to

house Class I wildlife, pursuant to Rule 68A-6.022, Florida

Administrative Code.

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties pursuant to Section 120.57(1), Florida Statutes, and

Chapter 65B-11.013, Florida Administrative Code.

60. Article IV, Section 9, Florida Constitution, creates

and grants Respondent "the regulatory and executive power of the

state with respect to wild animal life. . . ." Section

372.921(1), Florida Statutes, directs all persons who wish to

exhibit or sell wild animals, whether indigenous to Florida or

not, to obtain a license from the Commission. Rules 68A-5.004,

6.002, 6.003, 6.004, 6.022, and 6.0023, Florida Administrative

Code (formerly found in Title 39, Florida Administrative Code)

govern the licensing and housing of wildlife.

61. Petitioner, as applicant for a license to sell or

exhibit wildlife, has the burden of demonstrating eligibility for

the license. McDonald v. Department of Professional Regulation ,

582 So. 2d 660, 670 (Fla. 1st DCA 1991), citing Balino v.

Department of Health and Rehabilitation Service , 348 So. 2d. 349,

350 (Fla. 1st DCA 1977).

62. Rule 68A-6.022(5) (formerly Rule 39-6.022), Florida

Administrative Code, mandates that an applicant for a license to

possess Class I wildlife must possess the Class I wildlife on not

less than 1/4 acre.

63. Petitioner applied to possess bears, baboons and

leopards, all Class I wildlife pursuant Rule 68A-6.002 (formerly

Rule 39-6.002), Florida Administrative Code.

64. Each of Petitioner's properties, 127 West Hiawatha

Street, 116 West Elm Street, and 6802 North Highland Avenue, is

less than 1/4 acre. This conclusion is supported by the

testimony of Lieutenant Parker, Lieutenant Delacure, and Linda

Coomey, the exhibits provided through the Hillsborough County Tax

Collector's and Property Appraiser's Offices, and the testimony

of Petitioner himself.

65. Although estoppel is an application of the rules of

fair play and is an appropriate defense in certain matters, it is

not merited in the instant case.

66. First, equitable estoppel may not be applied against a

governmental entity to accomplish an illegal result. Branca v.

City of Miramar , 634 So. 2d 604, 606, (Fla. 1994), citing State

Department of Revenue v. Anderson , 403 So. 2d 397 (Fla. 1981).

To apply the equitable doctrine against Respondent and allow

Class I animals to be housed at Petitioner's properties would be

violative of the administrative law cited above.

67. Additionally, the doctrine of equitable estoppel may be

applied against the state only rarely and under exceptional

circumstances. Dolphine Outdoor Advertising v. Dept. of

Transportation , 582 So. 2d 709, 710 (Fla. 1st DCA 1991), citing

North American Co. v. Green , 120. So. 2d 603 (Fla. 1959); Tri-

State Systems, Inc. v. Dept. of Transportation , 500 So. 2d 212

(Fla. 1st DCA 1986), rev. den. 506 So. 2d 1041 (Fla. 1987). See

also Corona Properties of Florida, Inc. v. Monroe County , 485 So.

2d 1314, 1317, in which the court stated that a governmental

entity cannot be estopped from enforcement of its ordinances by

an illegally issued permit. Here, Petitioner asserts that an

improperly issued license should require the Commission to issue

a Class I license in violation of agency rule. The assertion is

incorrect.

68. The court in Tri-State enunciated that equitable

estoppel shall only be afforded if the facts support the

following three elements: (1) representation of a material fact

that is contrary to a later-asserted position; (2) reliance on

that representation; and 3) a change in position detrimental to

the party claiming estoppel, caused by the representation and

reliance thereon. See Tri-State Systems, Inc. v. Dept. of

Transportation , 500 So. 2d at 215-216.

69. In Council Brothers, Inc. v. City of Tallahassee , 634

So. 2d 264 (Fla. 1st DCA 1994), the court reiterated the above

three criteria which the asserting party must demonstrate to

establish a basis for estoppel, but also held that for one to

successfully invoke equitable estoppel against the government,

the party must also demonstrate the existence of affirmative

conduct on the part of the government which goes beyond mere

negligence. See Council Brothers, Inc. v. City of Tallahassee,

634 So. 2d at 266. Here, there has been no demonstration by

Petitioner of affirmative conduct by Respondent beyond mere

negligence.

70. The Council Brothers, Inc. court also held that the

governmental conduct must cause serious injustice for equitable

estoppel to be applicable. See Council Brothers, Inc. v. City of

Tallahassee, 634 So. 2d at 266. As Petitioner has continued to

exhibit Class I wildlife throughout the 1990's, no serious

injustice has been demonstrated. Lastly, and equally important,

this court held that any application of estoppel against the

government must not unduly harm the public interest. See also

Alachua County v. Cheshire , 603 So. 2d 1334, 1337 (Fla. 1st DCA

1992). Here, Petitioner seeks to house the most dangerous

animals regulated by Respondent. The neighborhood in which

Petitioner wishes to house Class I wildlife is of a high density

and residential, and close to major roads. The use of equitable

estoppel under these circumstances would unduly harm the public

interest by allowing bears, leopards, and baboons into this

environment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Fish and Wildlife Conservation

Commission enter a final order upholding the Commission's Amended

Notice of Denial.

DONE AND ENTERED this 18th day of February, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of February, 2000.

COPIES FURNISHED:

Joseph R. Fritz, Esquire

4204 North Nebraska Avenue

Tampa, Florida 33603

Preston T. Robertson, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

Allan L. Egbert, Ph.D., Interim Director

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

James Antista, Acting General Counsel

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.