The 1994 mammal or bird rehabilitation permit, as sought by Willard Minnick under 310 IAC 3.1-10-9 for 2016 California Avenue in Fort Wayne, is denied.
JURISDICTION AND STATEMENT OF THE CASE
FINDINGS OF FACT
1. On August 29, 1993, Willard Minnick ("Minnick") made an application to the department of natural resources (the "Department") under IC 14-2-7-27 and 310 IAC 3.1-10-9 for a mammal or bird rehabilitation permit.
2. The 1993 permit application was denied in a letter dated November 22, 1993 from Gregg McCollam, Chief of operations for the Division of Pith and Wildlife.
3. On December 8, 1993, Minnick caused a letter to be filed with the natural resources commission (the "Commission") seeking administrative review of the denial. This letter initiated a proceeding before the Commission which is governed by IC 4-21.5 (sometimes called the "administrative orders and procedures act" or the "AOPA") and 310 IAC 0.6-1, a rule adopted by the commission to assist in administration of the AOPA.
4. The Department is an "agency" as the term is defined in IC 4-21.5-1-3. The Commission is the "ultimate authority" for the Department pursuant to IC 14-3-3-21.
5. The commission has jurisdiction over the person of the parties and over the subject matter of this proceeding.
6. During a preheating conference held on January 28, 1994, the parties agreed that the application for the 1993 rehabilitation permit might have been mooted. Minnick indicated he would file a new application for 1994, and the Department agreed to inspect the site based upon the 1994 application. The issues in this proceeding would then be framed by the 1994 application rather than the 1993 application.
7. On March 1, 1994, Minnick filed a new application for a mammal or bird rehabilitation permit (the subject application"). An inspection of the facilities to be used under the permit was conducted on April 20, 1994 by first Sergeant Mark Hines of the
Division of Law Enforcement for the Department. Based upon this inspection, a report was prepared and the application was again denIed.
8. The denial of the subject application was based upon a determination by the Division of Law Enforcement that the site included inappropriate facilities in terms of their structure, site, and proximity to neighboring properties.
9. Primarily at issue in this proceeding is whether the subject application was properly denied based upon a determination by the Department that the site to be used for mammal or bird rehabilitation included inappropriate facilities in terms of their structure, site, and proximity to neighboring properties.
TIMELINESS OF REVIEW REQUEST
10. Another issue was, however, raised by the Department in a "Motion to Dismiss" filed on December 16, 1993.[FOOTNOTE 1] This issue is founded upon the timeliness of the request for administrative review described in Finding 3.
11. The Department urged that Minnick's request for administrative review was not timely because it was made after the period prescribed by the AOPA for taking administrative reviews.
12. The Department notified Minnick on November 22, 1993 that the 1993 permit application had been denied. The mailing which included Minnick's request for review was sent certified (with receipt requested)
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on December 8, 1993 and was actually received by the Commission on December 15, 1993.
13. During a preheating conference hold on January 28, 1994, Minnick presented another letter which was Minnick's first attempt to obtain administrative review. The letter was sent certified mail by Minnick on November 25, 1993 to "Mr. Steve Lucas, Hearing officer, 402 W. Washington St., Indianapolis, IN 46204" and was returned to Minnick without delivery marked "Return to Sender, Addressee Unknown, Indianapolis, IN". The address set forth on Minnick's November 25 mailing was the same as specified in the Department's November 22, 1993 notice.
14. The AOPA sets forth in IC 4-21.5-3-5 the time-frame by which administrative review must be taken from an initial licensing determination. Subsection 5(f) requires that the request be "filed" within is days after the licensing determination is "served", unless another statute establishes a longer period. Mammal or bird rehabilitation permits are governed by IC 4-21.5-3-5, and a period longer than 15 days is not prescribed for mammal or bird rehabilitation permits.
15. Where service of a determination under the AOPA is made through the United States mail, an additional three days is added by IC 4-21.5-3-2(e) to the response period. Since the Department informed Minnick by U.S. mail of the initial determination concerning the 1993 permit application, an additional three days is added to the period by which Minnick must file for administrative review. Minnick was required by the AOPA to file for administrative review within 18 days after the Department mailed its initial determination to deny the 1993 permit application.
16. The Department mailed the initial determination on November 22, 1993. Minnick had 18 days from that date to seek administrative review. He was required to "file" his request for review by December 19, 1993.
17. The AOPA is not explicit as to what act constitutes "filing". Trial Rule 5 provides that filing occurs when papers are personally delivered to the clerk or mailed to the clerk by certified or registered mail. Although the Trial Rules do not apply to proceedings under the AOPA, the Commission by rule has authorized its administrative law judges to "apply a provision of the Indiana Rules of Trial Procedure" were not inconsistent with the AOPA or other commission rules. 310 IAC 0.6-1-10. Standing alone, this section could be used to determine that Minnick filed his request for review when the request was mailed certified to the Commission.
18. Using the trial Rules as a model, however, the Commission has specifically addressed what constitutes a "filing". As provided in 310 IAC 0.6-1-7(b), "filing of a document with the administrative law judge may be performed by personal delivery, first class mail or certified mail. Filing is complete upon deposit in the United States mail properly addressed and first class or certified post prepaid.
19. Minnick filed the request for review when his letter was mailed. Every equity supports a conclusion that Minnick's certified mailing of November 29, 1993 was the time measurement to be used in this proceeding. That letter used the address provided to him by the Department, even though the letter was returned by the U.S. Post Office. The November 29, 1993 filing was timely.
20. Even if the second letter by Minnick should be used as the measurement, however, his review request was timely. The second letter was mailed certified on December 8, 1993. Pursuant to 310 IAC 0.6-7, the request was properly file-marked to reflect that date; December 8 was two days before the deadline for seeking administrative review from denial of the 1993 permit application.
21. Whether reference is made to Minnick's first letter or second letter requesting administrative review, his request was timely.
BURDEN OF PERSUASION AND STANDARD OF REVIEW
22. Subsection (a) of 310 IAC 3.1-10-9 provides that a "wild animal, which is a mammal or bird protected by law, may be possessed for rehabilitation purposes only in accordance with a permit issued under this section."
23. A person seeks a permit has the burden of persuasion under the AOPA. IC 4-21.5-3-14 and Indiana Dept. of Natural Resources V. Krantz Bros. Const. Corp., Ind. App. 1991, 581 N.E.2d 935.
24. Minnick has the burden of persuasion to establish that he is entitled in 1994 to a permit for mammal or bird rehabilitation as sought in the subject application.
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25. On administrative review, an administrative law judge is required to consider a permit application de novo, based upon the evidence presented at hearing, by weighing the evidence and reaching an appropriate conclusion, rather than by deferring to the initial determination of the Department. Indiana Dept. of Natural Resources v. United Refuse Co., Inc. (Ind. 1993), 615 N.E.2d 100.
26. In considering the subject application, the administrative law judge is required to consider the subject application de novo based upon the evidence received during a hearing conducted on August 1, 1994.
FACILITIES AND THEIR LOCATION
27. Numerous requirements are set forth in 310 IAC 3.1-10-9 for receipt of a mammal or bird rehabilitation permit. The provisions concerned with the site and facilities to be used for rehabilitation are set forth in subsections (b), (f), and (g):... (b) An application for a permit under this section . . . must establish following: . . . (6) A description of the rehabilitation facilities, equipment, and supplies. The description shall include all cages, intensive care units, aviaries, falconry equipment, medical diagnostic equipment, medical supplies, food sources, and other items to be utilized in the rehabilitation process. A cage description shall provide its internal dimensions and shall specify the materials used for flooring, walls, and perches. The application shall list what species will be housed in the various enclosures and the purpose for each enclosure, for example, convalescing, training, quarantine.... (f) A wild animal possessed pursuant to permit issued under this section must not be displayed or placed in physical contact with the public. . . . (g) A permit holder must maintain facilities for the retention of a wild animal possessed under this section in a sanitary condition.
28. The subject application describes the wild animals sought to be rehabilitated only in cursory terms: "Birds of all types, all mammals excluding skunks, adult deer."
29. The site where Minnick seeks to receive the mammal or bird rehabilitation permit is a small business or residential property located at 2016 California Avenue in Fort Wayne, Indiana. This address is in an older but well-maintained section of town characterized by small and narrow lots, and a school is located nearby. A house and an unattached garage would be used to shelter cages for the possession of wild animals.
30. Testimony of the witnesses, and the most casual examination of site photographs admitted into evidence, reveal that the facilities are wholly unsuitable for the possession and rehabilitation of many larger mammals. Although Minnick suggests in his application that an "animal or bird too large for facilities will be transported to appropriate facility or rehabber," he offered no formula or standard for determining what is "too large."[FOOTNOTE 2]
31. Neither has Minnick offered in this proceeding a listing of species, or a formula or standard for identifying species, which might properly be rehabilitated at the site. For the trier of fact to identify these species based upon the current record would require unmitigated speculation. That responsibility rests squarely with the permit application.
32. The failure by Minnick to identify species of small mammals and birds which might suitably be rehabilitated at 2016 California Avenue in Fort Wayne is fatal to the subject application.
33. In addition, some of the cages where animals would be rehabilitated were visible to the conservation officer from an adjacent alley. What can be seen by a conservation officer may also be seen by local residents, including children from the nearby school. Shielding a wild mammal or bird from the public is necessary both to facilitate its eventual return to the wild and to prevent the animal from becoming an attractive nuisance.[FOOTNOTE 3]
34. Whether by intent, or merely because the site is located in an urban neighborhood, the consequence would be to display the animals being rehabilitated. To remedy this flaw, suitable screening would have to be provided by Minnick.
35. Hines also testified that the garage was "poorly lit and poorly ventilated." Minnick testified that he could readily address these problems, but at the time of the April inspection, they apparently were not fully addressed. After Minnick made the subject application, the Department could reasonably expect the site to be ready and not just nearly ready. If lighting and ventilation of the garage had been fully addressed at the time of the hearing, this conclusion was not clear from the testimony.
36. Currently, the site is being used to house
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domesticated animals and wild animals for which a rehabilitation permit is not required. For example, rats, mice, and snakes[FOOTNOTE 4] are caged there. During the April inspection, Hines described an "extremely strong urine" odor both outside and inside the basement, but he conceded that a major factor regarding the odor may have been recent mulching of Minnick's roses. Although not necessarily viewed as fatal to the potential for rehabilitation, the usage already put to 2016 California Avenue suggests its additional capacity for properly servicing wild mammals or birds is severely restricted. The limited space available also directly impacts the ability to maintain adequate sanitation. Particularly in light of the open-ended terms of the subject application, Minnick has failed to establish an ability to provide adequate sanitation.
37. The subject application was properly denied based upon a determination by the Department that the site to be used for mammal or bird rehabilitation included inappropriate facilities in terms of their structure, site, and proximity to neighboring properties. Most notably, 2016 California Avenue in Fort Wayne is not a suitable location to rehabilitate all birds or mammals other than deer, regardless of their size. The capacity of the site to provide rehabilitation is limited and must provide reasonable plans to shield the animals from public view, to provide adequate lighting and ventilation, and to provide for the responsible disposal of animal body waste. Before a permit can be granted for mammal or bird rehabilitation, a permit must be fashioned which considers and addresses the geographical limitations inherent to 2016 California Avenue.
FOOTNOTES
1. since the initial request for review was directed to the 1993 permit application, and another application was subsequently made for 1994 to frame the substantive issues in this proceeding, the argument presented by the "Motion to Dismiss" may now be moot.
2. The current proceeding is not the first time the commission has considered the denial of a mammal or bird rehabilitation permit sought by Minnick for this site. As with the subject application, Minnick in 1991 sought a rehabilitation permit for all birds and mammals, except deer. In denying the 1991 application, the Commission observed that less than 400 square feet were available for rehabilitation activities with little or not exercise space. The Commission concluded that "Clearly, the application could not be approved as written. Just as clearly, the space available was adequate for small mammals, reptiles, and small birds." Minnick v. Dept. of Natural Resources, 6 Caddnar 157 (1992). The parties do not discuss the potential res judicata or collateral estoppel effect of the prior Minnick decision. Even assuming the prior decision does not foreclose consideration of this issue, the Commission analysis is persuasive. The site for which the rehabilitation permit is sought restricts its use to small animals.
3. Minnick disputes the testimony by the conservation officer concerning the visibility of the animals and their cages, but even Minnick's own exhibits are not very helpful to his cause. Photographs taken by him from the alley support a possibility that animals can see and can be seen. Illustrative is Claimant's Exhibit 8. The evidence most favorable to Minnick suggests that the animals are less likely to be visible in the slimmer when vegetation is the most dense, but there is nothing in the subject application to suggest that rehabilitation would occur only in the slimmer months. Viewing the evidence as a whole, the conclusion must be that visibility of the animals and their cages is likely to be a problem.
4. One of the concerns voiced by Hines was, that as proposed by Minnick, the rehabilitation permit would place birds and snakes in view of each other. The conservation officer testified that this juxtaposition of animals was likely to cause stress to the birds. In his own testimony, Minnick disputed the claim. No finding is made concerning the issue because the administrative law judge believes expert testimony from an ornithologist or other appropriate biologist is needed. As a general principle, however, the Department may properly consider the impact to health which is likely to result from placing one wild animal in proximity to another.